This second blog in the series for May on the values and goals of DR is also adapted from Chapter 4 of: Laurence Boulle and Rachael Field, Australian Dispute Resolution – Law and Practice (LexisNexis, 2017).
Much of the DR literature about justice connects or conflates it with notions of fairness. NADRAC, for example, noted in its 1997 Discussion Paper on Issues of Fairness and Justice in Alternative Dispute Resolution, that the words justice and fairness ‘are essentially interchangeable’.  The word ‘fair’ is mentioned 179 times in volume 1 alone of the Productivity Commission’s 2014 Report on Access to Justice, often in conjunction with words such as ‘justice’, ’equity’, ‘transparency’ ‘openness’ ‘dignity’ and ‘reasonableness’. It has been said that ‘a just result must be a fair result’.
Albin in her seminal article ‘The Role of Fairness in Negotiation’ identifies fairness as a ‘slippery concept’ but one which is an influential factor in DR across diverse cultures and disciplines. Albin refers to justice as a macro concept which points to ‘what is right and wrong’. Fairness on the other hand is seen as a concept in DR contexts that has a less definitive and a more practical, contextualised and individualised nature.
It may not be possible to identify all the elements of fairness in DR with universal acceptance. As Albin says: ‘fairness is an element of acceptability’, and acceptability is something which is judged subjectively. In DR processes other than litigation this is often expressed as ‘what the parties can live with’. The outcome may not be perfect but if the process is considered to be fair, it may thereby be seen as just and consequently acceptable to the parties. It is a challenging task, then, to develop a values framework of general application for DR that is relevant to processes across the matrix, especially if such a framework is to include a conception of justice as fairness which is responsive to the relevant individual and subjective perspectives of parties in dispute.
It would not be a satisfactory conception of fairness as a value for DR, however, if it were simply a postmodern blank canvass of individual perceptions. It is necessary to identify some core elements of fairness across DR systems. Frey’s articulation of a ‘first class dispute resolution process, whether litigation or an alternative process’ refers to ‘impartiality, a just process and a just result’. These elements sit consistently with Albin’s identification of fairness as: structural fairness, process fairness, procedural fairness and outcome fairness. They are also in accord with NADRAC’s focus on fairness and justice in procedure and outcome.
What we know from brain research is that it is important for humans to perceive that they are being treated fairly. This is because being treated fairly is said to ignite the brain’s reward circuitry. UCLA scientists reported in 2008, for example, that ‘the human brain responds to being treated fairly the same way it responds to winning money and eating chocolate’.
The significant body of scholarship and literature on the topic of fairness leads us then to suggest three process goals that contribute to the enactment of the macro value of justice in DR. These goals are: procedural justice (fair process), substantive justice (fair outcomes) and impartiality. The satisfaction of these goals is the safeguard that critics of processes other than litigation find lacking, and when these fairness-related goals are achieved, whatever the DR processes is, it can be regarded as true to the value of justice. In the blog posts that follow in the coming days of May I offer an analysis of the process goals of procedural and substantive justice and impartiality to further elucidate the nature of justice in DR systems.
Comments or responses to these thoughts are most welcome at any time!
 NADRAC, Discussion Paper on Issues of Fairness and Justice in Alternative Dispute Resolution (Commonwealth of Australia, 1997), 20. See also, Cecilia Albin, Justice and Fairness in International Negotiations (Cambridge University Press, 2001).
 Martin A Frey, ‘Does ADR Offer Second Class Justice?’ (2000) 36 Tulsa Law Journal 727, 727.
 Cecilia Albin, ‘The Role of Fairness in Negotiation’ (1993) 9(3) Negotiation Journal 223, 223.
 See Morton Deutsch, Distributive Justice: A Social Psychological Perspective (Yale University Press, 1985) and Michael L Moffitt and Robert C Bordone, The Handbook of Dispute Resolution (Jossey-Bass, 2005) 90.
 Albin, above n 3, 225.
 Ibid. Carrie Menkel-Meadow, ‘Whose Dispute Is It Anyway: A Philosophical and Democratic Defense of Settlement (In Some Cases) (1994) 83 Georgetown Law Journal 2663.
 Albin, above n 3, 225
 Menkel-Meadow, above n 6.
 Frey, above n 2, 727.
 Albin, above n 3, 225.
 NADRAC, above n 1, 20.
 Stuart Wolpert, ‘Brain Reacts to Fairness as it Does to Money and Chocolate, Study Shows’ UCLA Newsroom Science + Technology April 21, 2008, 6. See also, E Allan Lind, ‘Fairness Heuristic Theory: Justice Judgments as Pivotal Cognitions in Organizational Relations’ (2001) 56 Advances in Organizational Justice 88.