Wednesday, May 20, 2015

Reimagining Adjudication: ADR as a Laboratory

Deanna ParrishFerguson. Staten Island. Cleveland. A national outcry against police brutality. A resounding call that Black Lives Matter. Not a moment, but a movement, to question the legal system: its actors, its tools, and its available remedies.

Responding to this cry for systemic revision, Harvard Law School Dean Martha Minow and Yale Law School Dean Robert Post called for students to “regain trust in the legal system.” Regaining trust may not be the issue. Public opinion surveys, such as those conducted in 2014 by the National Center of State Courts, suggest that courts remain the most trusted branch of government, and that court users express confidence in fairness of proceedings. However, that individuals trust adjudicative options does not suggest that their experiences with them are optimal. A survey carried out by the National Consumer Council1 showed that about three-quarters of those who had experienced a serious dispute agreed “the present legal system was to slow, too complicated, too easy to twist if you knew the rules, needed bringing up to date, and was off-putting for ordinary people.”2 These findings are particularly salient when considering the courtroom experiences of communities of color. African-American defendants who enter courtrooms “report worse treatment, more negative outcomes, lower perceptions of the quality of the court’s decision-making process, and less trust in the motives of court actors.”3

This dissonance between the public’s stated trust in the legal system and sub-optimal experiences within in it is not surprising. According to the mind sciences research of Professor John Hanson, apparently unfair outcomes associated with processes that are otherwise perceived as legitimate are generally perceived by the public to be just.4 Humans tend to alleviate the dissonance between their desire for justice and existing inequalities by “creating an illusion of justice through assumptions, arguments, or stereotypes about the blameworthiness of the victim.”5 In many instances, these stereotypes and arguments are the same ones that the #BlackLivesMatter movement is committed to overcoming.

Perhaps, then, before embarking on the project of reestablishing as trustworthy a system whose options produce disparate experiences and outcomes for its users, we should first examine and reimagine those options. In this exercise, students of Alternative Dispute Resolution (ADR) ask: how might ADR serve as a laboratory for the design of more equitable and accessible justice-seeking measures?

Among the adjudicative options worth examining, litigation is the linchpin. It is not only the most common form of dispute resolution in the United States, but it produces gross disparities in terms of accessibility,6 process,7 and outcomes8 for marginalized communities. Further, as has been raised by many communities, litigation is unequipped to address issues outside of the legal questions determined to be relevant by the judiciary—despite instances when those non-legal issues impact the administration of justice for many. As a rights based mechanism, litigation uses leverage to force participants to take or avoid a course of action, and thereby “end” a dispute. This emphasis on “ending” disputes as opposed to “resolving” them, hinders litigation’s potential. “As soon as it becomes clear who is likely to win, it is advantageous for both sides to avoid the costs and uncertainty of further litigation.” Cost and time pressures result in a process that need not, and as a result does not, address systemic issues that underlie disputes.  However, this process is flipped. Under the interests-based negotiation model taught at the Harvard Negotiation and Mediation Program, any dispute resolution mechanism should begin with a process where the parties explore interests and understand one another; only when this doesn’t work, should they move on to rights-based or power-based approaches.

The Department of Justice report on the Ferguson Police Department revealed economic motivations9 and a culture of complicity10 driving the city’s administration of justice, and encouraged many readers to revisit the processes through which justice is achieved. These findings suggest that non-optimal experiences in the courtroom may be related to, or even rooted in, larger and more systemic issues elsewhere in our justice system.  In this moment, ADR presents itself as a possible complement—and in some instances appropriate replacement—to traditional adjudicative options. While individual ADR options traditionally include mediation, arbitration, and negotiation, options addressing systemic factors and community grievances have historically included Truth and Reconciliation Councils11, Community Courts, and Community Conferencing Centers, among others. These processes, although diverse, prioritize the goals of the multi-door courthouse: to afford parties voice in how to resolve their disputes, and to save the courtroom for cases that need it. This user-driven choice, some argue, makes ADR a fair alternative to traditional adjudicative measures.

However, other scholars have expressed legitimate concerns regarding the silencing effect that ADR may have on disputing parties—concerns that also apply to social movements. Ugo Mattei and Laura Nader note that ADR practices “may be used to suppress people’s resistance, by socializing them toward conformity by means of consensus, cooperation, passivity, and docility, and by silencing people who speak out angrily.” From this perspective, the danger with ADR is twofold. First, there is the fear that ADR may be employed as a Band-Aid solution that does not handle disputes in meaningfully—or with more nuance than one could achieve through litigation. Second, ADR’s core value of voluntary interest in resolving the dispute may be understood to require civility or calm between parties. Under this understanding, by not providing an outlet for emotional expression, ADR could omit critical substantive components to the dispute in of itself. Further, such an iteration of ADR may dismiss the rightful place of indignation among victims and otherwise oppressed people. These critiques suggest that the ADR system could perpetuate the same disparities in access, process, and outcomes, as the “litigation explosion” that prompted its founding. If ADR is to be explored as a possible alternative or complement to traditional adjudicative strategies, critical thought must be put into how ADR can correct the shortcomings of litigation, and not recreate or perpetuate them in a different form.

diagram

This diagram12 is helpful because it reveals how litigation makes visible, and indeed requires positions, but how obfuscated underlying power structures and personal interests can be. ADR has the potential to “flip the script”: to prioritize the systemic and interests-based conversations that may not have a place in court, and reserve positional and power-based conversations for the litigators. ADR may facilitate difficult conversations that can reveal parties’ underlying interests, and help guide creative problem solving that may touch on factors and opportunities not immediately relevant to the case. Solutions that recognize stakeholders’ contexts and incorporate stakeholders’ input are shown to have greater success in shifting future behavior and preempting future conflicts.13 While this may not be the most compelling option for every case, by starting adjudicative processes in some form of ADR, individuals have the opportunity to engage with one another free from the threat of publicity, punishment, or judgment that trial requires.

ADR has the potential to be less a form of social control, and more a cost-effective, expedient, and emotions-centered process. Its emphasis on underlying interests and creative problem solving may offset the elite power dynamics of the traditional litigation system and ultimately provide more equitable outcomes for people that currently, and historically, have borne the brunt of litigation’s shortcomings. Nowhere is this potential more saliently demonstrated than in Lauren Abramson’s ADR work in Baltimore. Using the community conferencing model—in which a facilitator unites all relevant parties in a dialogue circle, and through open-ended inquiry moves participants from “conflict to cooperation”—Abramson, a trained psychiatrist, reports communities with 60% reduction in recidivism and over a 95% success rate in Baltimore courts, schools and neighborhoods. For example:

In one neighborhood, Southeast Baltimore, young people had been a source of hundreds of calls to the police over a two-year period. The adults in the neighborhood were irate and frightened due to the youth playing on the streets, making noise and damaging property; the youth were frustrated because they had nowhere else to play. Matters came to a head in the fall of 2001 and the local neighborhood association asked the CCC to hold a conference, which was attended by 44 people, including 13 kids. At first, the adults just yelled at the children, but then the kids began to express themselves, protesting that they had no safe place to play.14

The result in this case: a local resident agreed to supervise football games in the park. Violence decreased and community members felt safer, more connected to one another, and prouder of their neighborhood. This outcome simply would not have been achievable through litigation, in large part because this outcome—and the creative problem-solving inherent to many forms of ADR—is dependent upon relationships and information that would be deemed irrelevant in the litigation setting. This example demonstrates the power of flipping the script: examining causes and interests before the effects they produce. By doing so, all parties, including the already over-burdened justice system, can win.

I believe that we should answer Minow’s call to rebuild trust in our legal system by using Abramson’s work—and the work of many powerful ADR advocates—as a guide. By experimenting with different forms of ADR, and integrating its principles into our adjudicative processes, ADR has the potential to equalize access, experiences, and outcomes in dispute resolution.

Deanna Parrish ’16 is a 3L at Harvard Law School. In addition to facilitating in the Real Talk initiative, Deanna has served as a teaching assistant in the the Negotiation Workshop and the Harvard Negotiation Institute. During her studies at HLS, Deanna has taken The Lawyer as Facilitator workshop, Dispute Systems Design, and the Negotiation and Mediation Clinic (HNMCP). She has also written a multi-party negotiation case.

 

1 Taylor Nelson AGB 1995.
2 Marian Liebmann, Mediation in Context 12 (2000).
3 M. Somjen Frazer, The Impact Of The Community Court Model On Defendant Perceptions Of Fairness: A Case Study At The Red Hook Community Justice Center, Center for Court Innovation 3 (2006), available at http://courtinnovation.org/_uploads/documents/ Procedural_Fairness.pdf.
4 Ronald Chen & Jon Hanson, The Illusion of Law: The Legitimating Schemas of Modern Policy and Corporate Law, 103 Mich. L. Rev. 1 (2004).
See Jon Hanson & Kathleen Hanson, The Blame Frame: Justifying (Racial) Injustice in America, 41 Harv. C.R.-C.L. L. Rev. 413, 417 (2006).
6 Litigation presents various barriers to entry, including limited low-cost legal assistance and the fear of a lengthy trial.
7 Regarding process, Professor Vincent Cardi has found that involvement in litigation seriously impacts the mental health and wellbeing of litigants. In fact, criminal defendants described litigation as a “nightmare” in which the “process is the punishment.”
Outcomes are equally lopsided, with over 96% of criminal defendants entering a guilty plea, and 2/3 of all incarcerated Americans awaiting trial.
9 “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.”
10 “Partly as a consequence of City and FPD priorities, many officers appear to see some residents, especially those who live in Ferguson’s predominantly African-American neighborhoods, less as constituents to be protected than as potential offenders and sources of revenue.”
11 Carrie Menkel-Meadow, Roots and Inspirations: A Brief History of the Foundations of Dispute Resolution, in The Handbook of Dispute Resolution 13-31 (Michael L. Moffitt & Robert C. Bordone eds., San Francisco: Jossey-Bass 2005).
12 AAA Handbook on Employment Arbitration and ADR: American Arbitration Association (2010), available at https://books.google.com/books?isbn=1933833491.
13 Rogers et al., Designing Systems and Processes for Managing Disputes (Wolters Kluwer, 2013).
14 Laura Mirsky, The Community Conferencing Center: Restorative Practices in Baltimore, Maryland, Int’l Inst. for Restorative Practices (Mar. 9, 2004), available at http://www.iirp.edu/article_detail.php?article_id=NDA3

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