Fairness Beyond the Adversary System: Procedural Justice Norms for Legal Negotiation

Fordham Law Review, Sep 2017

Part I of this Article provides background on procedural justice and its relationship to negotiation. Part II then discusses the results of a recent empirical study that I conducted on the factors that help shape perceptions of procedural justice in the negotiation setting. Lastly, Part III explores the strategic and ethical implications of these results for the practicing lawyer in settlement negotiations.

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Fairness Beyond the Adversary System: Procedural Justice Norms for Legal Negotiation

Fairness Beyond the Adversar y System: Procedural Justice Norms for Legal Negotiation Rebecca Holland-Blumoff 0 1 0 Thi s Colloquium is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact 1 Washington University School of Law , USA Recommended Citation - The tale of the vanishing trial is, by now, familiar and well worn.1 The arc and import of the narrative differ by teller: some decry the loss of an adjudicated outcome, either by judge or by jury,2 and some praise the proliferation of alternative methods for dispute resolution that might allow for more flexibility and efficiency.3 Either way, the decline in trials and adjudicated outcomes raises critical questions about the nature of the adversary system. The decline in trials has raised particular concerns in the criminal context, where “negotiated justice” has drawn a phalanx of critics.4 Plea bargaining is susceptible to a negotiation analysis,5 and understanding plea bargaining as an essential interpersonal interaction casts doubt on the idea that the criminal adversarial system enshrines the hallmarks of a just, neutral process, rooted firmly in the rule of law. In the civil context, though, worries are sometimes less acute: liberty is not at stake, the power differential may be less dramatic between the parties, and the private ordering * Professor of Law, Washington University School of Law; Visiting Professor of Law, Harvard Law School, fall 2016. Thanks to Susan Appleton, Deborah Dinner, Matt Bodie, and participants in Fordham University School of Law’s colloquium entitled Civil Litigation Ethics at a Time of Vanishing Trials, particularly Judith Resnik and Bruce Green, for helpful commentary and suggestions. For an overview of the colloquium, see Judith Resnik, Lawyers’ Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations, Arbitration Mandates, and Privatized Processes, 85 FORDHAM L. REV. 1899 (2017). at issue in these cases has been subject to a “market” type of analysis.6 However, the shift from a system of public, adversarial, and ordered civil dispute resolution to a set of private, negotiated, and ad hoc resolutions has raised serious concerns about our enforcement of the laws and our understanding of legal outcomes. The disappearance of adjudicated civil disputes shines a keen light on what we—as a society, as individuals, and as legal professionals—expect and want from so-called “private” ordering. This Article takes as fundamental premises ( 1 ) that laws and regulations play a vital role in our society and ( 2 ) that even in a system of largely nonadjudicated justice, law and legal rules should remain important in guiding the resolution of disputes in situations where those rules would otherwise apply.7 Law and legal rules are our society’s expression of justice; if we want outcomes to legal disputes that at least comport with justice, what does the absence of trials tell us about the optimal nature of negotiated justice? If justice is a key ideal for the resolution of legal disputes, how can lawyers best achieve outcomes that are not, at a minimum, at odds with the law? If we are negotiating, as I have argued in prior work, in the “shadow of legal process,”8 what are the implications for the appropriate behavior of lawyers in an adversary system? One key component of fairness and legitimacy for our legal system is procedural justice—the fairness of the process used to reach an outcome. Almost a half century of robust empirical research has clearly established the importance of procedural justice in how people assess the legitimacy of the legal system, leading to important judgments about adherence to decisions as 6. For analysis using a market-based approach, see generally Maurits Barendrecht & Berend R. de Vries, Fitting the Forum to the Fuss with Sticky Defaults: Failure in the Market for Dispute Resolution Services?, 7 CARDOZO J. CONFLICT RESOL. 83 (2005); Frank E.A. Sander & Stephen B. Goldberg, Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure, 10 NEGOT. J. 49 (1994); Steven Shavell, Alternative Dispute Resolution: An Economic Analysis, 24 J. LEGAL STUD. 1 (1995). But see Fiss, supra note 2, at 1075 (“Settlement is for me the civil analogue of plea bargaining: Consent is often coerced; the bargain may be struck by someone without authority; the absence of a trial and judgment renders subsequent judicial involvement troublesome; and although dockets are trimmed, justice may not be done. Like plea bargaining, settlement is a capitulation to the conditions of mass society and should be neither encouraged nor praised.”). 7. By this, I certainly mean to exclude a category of “nonlegal” disputes—those for which law typically provides no (...truncated)


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Rebecca Holland-Blumoff. Fairness Beyond the Adversary System: Procedural Justice Norms for Legal Negotiation, Fordham Law Review, 2017, Volume 85, Issue 5,