The Application of Procedural Justice Research to Judicial Actions and Techniques in Settlement Sessions

Abstract

This paper presents a questionnaire that is a work in progress. The questionnaire is designed primarily to assess lawyers’ perceptions of the procedural justice offered by judicial settlement sessions in individual civil, non-family cases. The questionnaire may be used by: judges seeking confidential feedback on their management of settlement sessions; individual courts or court systems seeking systematic information regarding their judges’ settlement efforts; and larger empirical research projects. To explain the need for the questionnaire, the paper provides a brief contextual history of judicial settlement in the U.S., including the evolution of relevant rules of civil procedure and judicial ethics provisions and the current state of judicial performance evaluation. Because the logic of the questionnaire is grounded in procedural justice, the paper also examines the procedural elements that most reliably lead to perceptions of procedural fairness: the opportunity for voice; respectful treatment from the decision-maker; even-handed treatment by the decision-maker and neutrality of the forum; and trustworthy consideration from the decision-maker.

The questionnaire is designed to expand upon the current state of knowledge regarding the procedural justice provided by judicial settlement by asking questions designed to identify: 1) the concrete judicial actions that occur during settlement sessions; 2) the relationship between these concrete actions and lawyers' (and clients') perceptions of procedural and substantive justice; and 3) the influence of certain contextual factors upon such perceptions (e.g., whether the settlement judge is the presiding judge, whether the judicial action occurred in joint session or caucus, and whether the parties suggested or requested the settlement session). The lawyer questionnaire is the first of a planned set of questionnaires on judicial settlement that will also include questionnaires for clients and judges.

Keywords: procedural justice, settlement, judicial settlement session, judicial ethics, judicial performance evaluation, judge, mediation, mediation, caucus, Rule 16, Model Code of Judicial Conduct