Special Issue on Procedural Fairness - American Judges Association

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ABOUT THE AMERICAN JUDGES ASSOCIATIONThe American Judges Association (AJA) is the largest independent association of judges in the United States,and it also has about 150 members who are Canadian judges. Formed in 1959, it has about 2,500 membersfrom all levels of the judiciary—municipal, state or provincial, and federal; trial, appellate, and administrative.The majority of its membership consists of state trial-court judges.The American Judges Association seeks to serve as the Voice of the Judiciary ® by speaking out on issues ofconcern to judges and by working to improve the work done by judges and the judiciary. The AJA provideshigh-quality educational programs for judges at an annual educational conference and publications withinformation useful to judges. The AJA supports a variety of programs and initiatives that promote fair andimpartial courts, including the work of Justice at Stake, a partnership of more than thirty organizations,including AJA, dedicated to maintaining fair and impartial courts.The American Judges Association is governed primarily by a 45-member Board of Governors and an eightmemberExecutive Committee. This white paper was approved by American Judges Association actingthrough its General Assembly at its meeting on September 29, 2007.ACKNOWLEDGEMENTSThe authors and the American Judges Association wish to thank the following people for their advice andhelp in developing this position paper: Paul Anderson, Seth Andersen, Michael Bender, Greg Berman, BertBrandenburg, Frank Broccolina, Colin Campbell, Alan Carlson, Mary Celeste, John Conery, Douglas Denton,Jay Dilworth, Gordon Doerfer, Sue Dosal, Gerald Elliott, Donovan Frank, Gene Flango, Geoff Gallas,Timothy Fautsko, Larry Heuer, Elizabeth Hines, Collins Ijoma, Dallas Jamison, William Johnston, AlanKalmanoff, Rebecca Kourlis, Susan Ledray, Dale Lefever, Barry Mahoney, Tanja Manrique, Lynn Mather,Thomas Mengler, Alanna Moravetz, Gayle Nachtigal, Brian Ostrum, Diane Pawlowicz, Bruce Peterson,Kathleen Flynn Peterson, Marcy Podkopacz, David Rottman, Steve Schele, Roy Schotland, Noreen Sharp,Steve Swanson, James Swenson, Sandra Thompson, Tom R. Tyler, Chelle Uecker, Kent Wagner, RogerWarren, David Wexler, Russell Wheeler, Penny White, and Richard Zorza. Thanks also to Laura Taken, whois Judge Burke’s law clerk. <strong>Special</strong> thanks to Rachel Sharpe, judicial assistant to Judge Leben, who providedsubstantial research and drafting assistance for the paper.Court Review - Volume 44 25
Procedural Justice and the CourtsTom R. TylerPeople come to the courts about a wide variety of problemsand disputes. Although this has always been thecase, in recent years the court system has become thebranch of government in which people deal with an everbroader variety of issues and concerns. And, the people whobring their problems to court have themselves become increasinglydiverse in terms of their ethnic and social backgrounds.In addition, more and more of these people choose to representthemselves, rather than acting through lawyers. Finally, thesechanges are occurring in an environment in which people havegenerally lower levels of trust and confidence in all forms ofgovernmental authority. All of these trends pose a challengefor the courts.In dealing with these problems and disputes, one core goalof the judicial system is to provide people with a forum inwhich they can obtain justice as it is defined by the frameworkof the law. This is the traditional concern of judges, and thegoal emphasized in legal education – the correct application ofthe law to particular legal disputes.A second goal of the courts is to handle people’s problemsin ways that lead them to accept and be willing to abide by thedecisions made by the courts. The effectiveness of the courtsin managing social conflicts depends upon their ability to issuedecisions that are authoritative, i.e. that shape the conduct ofthe parties that come before them. Courts want that deferenceto continue over time, with people adhering to court judgmentslong after their case, so that the parties are not continuallybringing the issues back into the courts for re-litigation.Finally, the courts want to retain and even enhance public trustand confidence in the courts, judges, and the law. Such publictrust is the key to maintaining the legitimacy of the legal system.THE IDEA OF PROCEDURAL JUSTICEThe concepts behind procedural justice have developedfrom research showing that the manner in which disputes arehandled by the courts has an important influence upon people’sevaluations of their experiences in the court system. 1 Thekey finding of that research is that how people and their problemsare managed when they are dealing with the courts hasmore influence than the outcome of their case on the issuesnoted above. Judgments about how cases are handled are generallyreferred to as assessments of procedural justice to distinguishthem from assessments of the favorability or the fairnessof the outcomes that people received. Studies suggest firstthat procedural justice has an impact on whether people acceptand abide by the decisions made by the courts, both immediatelyand over time. Second, procedural justice influences howpeople evaluate the judges and other court personnel they dealwith, as well as the court system and the law.Problems with noncompliance with the decisions of judgesare long-standing.One major motivation for the alternative dispute resolutionmovement, which seeks alternative forums to traditionalcourtrooms, is the effort to find a way to increase the willingnessto accept the decisions made by third-party authorities.In family court, for example, judges have struggled to findways to make decisions about child custody and child supportthat would be willingly followed by both fathers and mothersand that would, to the degree possible, create positive postseparationdynamics in which both parents took responsibilityfor supporting their children financial and emotionally. And,procedural justice is found to be effective in both creating positivedynamics within families and in facilitating long-termadherence to agreements. 2 In other words, the use of fair proceduresencourages a positive climate among the parties,which is more likely to promote both a long-term relationshipand adherence to the agreements made about how to handleissues, such as child custody, that are related to that relationship.MISCONCEPTIONS ABOUT PROCEDURAL JUSTICEBefore discussing the implications of the procedural justiceapproach, let me comment on a common misconception aboutthis perspective. That is that it suggests that people are happywhen they lose. On the contrary, no one likes to lose.However, people recognize that they cannot always win whenthey have conflicts with others. They accept “losing” morewillingly if the court procedures used to handle their case arefair. This is true both for formal procedures such as trials andfor informal procedures, including settlement conferences,mediation sessions, and arbitration hearings.One reason the procedural justice approach results in “losing”being more acceptable to litigants is that it minimizes thedegree to which problems are framed in terms of winning andlosing, as well as generally shifting the focus of attention awayFootnotes1. E. ALLAN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OFPROCEDURAL JUSTICE (1988); Tom R. Tyler, Social Justice: Outcomeand Procedure, 35 INT’L J. PSYCHOL. 117 (2000).2. PENELOPE E. BRYAN, CONSTRUCTIVE DIVORCE: PROCEDURAL JUSTICEAND SOCIOLEGAL REFORM (2005); Peter A. Dillon & Robert E.Emery, Divorce Mediation and Resolution of Child Custody Disputes:Long-term Effects, 66 AM. J. ORTHOPSYCHIATRY 131 (1996); RobertE. Emery, Sheila G. Matthews & Katherine M. Kitzmann, ChildCustody Mediation and Litigation: Parents’ Satisfaction andFunctioning One Year After Settlement, 62 J. CONSULTING &CLINICAL PSYCHOL. 124 (1994); Katherine M. Kitzmann & RobertE. Emery, Procedural Justice and Parents’ Satisfaction in a FieldStudy of Child Custody Dispute Resolution, 17 LAW & HUM. BEHAV.553 (1993).26 Court Review - Volume 44
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Special Issue on Procedural Fairness - American Judges Association

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