Justice and Control over Dispute System Design

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Justice and Control over Dispute System Design

• Lisa Blomgren Bingham
• Keller-Runden Professor of Public Service
• Indiana University School of Public and
  Environmental Affairs
• Bloomington, IN

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Overview

• Intro to Dispute System Design (DSD)
• Control over DSD
• Over what
• By whom
• How does it impact outcomes?
• How does it affect justice?
• Conclusion The research we need

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Dispute System Design

• From grievance procedures in labor relations
  (Ury, Brett, and Goldberg)
• Intentional design of a system for handling
  complaints or managing conflict
• Sequence of steps
• Array of processes
• Due process (counsel, discovery, etc.)
• Interest-based (negotiation, mediation) to
  rights-based (ENE, arbitration)
• Low to high cost

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Who Controls DSD?

• In labor relations, both parties.
• In courts, a third party.
• Increasingly in the US, corporations acting
  unilaterally one party DSDs.
• It makes a difference who controls DSD it alters
  the pattern of outcomes.
• Outcomes help us define the justice a system
  produces.

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How Does Control Over DSD Change Outcomes?

• ADR happens in the shadow of the civil justice
  system
• Settlement negotiations involve
• reservation prices,
• best alternatives to a negotiated agreement
  (BATNAs), and
• transaction costs.
• DSD alters BATNAs and transaction costs shifts
  the settlement range.

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Examples

• Court imposes mandatory private mediation. Costs
  of mediation exceed value of claim.
• Court enforces company adhesive arbitration
  clause that waives class actions. Costs of
  arbitrating individually exceed value of consumer
  claim.
• Employer hand picks arbitrators for panel. DSD
  changes BATNA from jury trial to arbitration.

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Defining Justice

• Distributive Who wins what
• Procedural Voice and control over it
• Organizational Justice in institutions
• Informational Social Accounts
• Interpersonal Respect in a group
• Corrective Righting the wrong
• Retributive Punishing the wrongdoer
• Deterrent Punishment that deters others
• Personal Corrupt judges
• Social Improving conditions in society for the
  poor and disadvantaged
• Communicative Justice as dialogue

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Control over DSD affects Justice

• Distributive justice DSD can change the overall
  pattern of outcomes.
• Corrective justice DSD may change the expected
  verdict.
• Procedural justice DSD can provide voice or
  limit it.
• No studies demonstrate that companies
  transaction cost savings are passed on to the
  consumer.

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Conclusion The Research We Need

• Comparison of varying dispute system designs
• Example ABA Top Ten Court ADR Indicators
• Using a variety of justice measures
• Multivariate, richer analyses
• Qualitative and quantitative studies.

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Resources

• Court-connected ADR DSDs Federal Judicial Center
  Website www.fjc.gov/library
• http//www.law.harvard.edu/academics/clinical/hnmc
  p//dsdsymposium2008.php