16 Pages Posted: 23 Mar 2017
Date Written: March 21, 2017
There are far fewer trials now than ever before. 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. Law and legal rules are our society’s expression of justice; if we want outcomes of legal disputes to comport with justice, what does the absence of trials tell us about the optimal nature of negotiated justice? One key component of fairness and legitimacy for our legal system is procedural justice—namely, the fairness of the process used to reach an outcome. Perceptions of procedural justice serve as important determinants of people’s satisfaction with their experience in the justice system. In the courtroom, understanding what kind of process is fair is facilitated by a set of clear norms and rules that govern behavior. Judges oversee a formalized process, parties sit in designated spaces, and the courtroom itself offers cues about the role of the rule of law. Yet when parties resolve their disputes through negotiation—in the shadow of the adversarial process but not directly within the adversary system—it is much harder to understand what process will leave participants with the perception of procedural justice.
Recent research has suggested an important role for procedural justice in shaping responses to negotiated outcomes in legal disputes. But shifting the burden of fair process from a neutral third party such as a judge or arbitrator onto lawyers creates an ethical challenge for attorneys. Should lawyers be responsible for creating a fair process for negotiating parties? And, if so, how can they provide a fair process in negotiated settlement while retaining their role as zealous advocates in an adversary system? 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 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.
Keywords: settlement, negotiation, procedural justice
JEL Classification: K1, K4, K41
Suggested Citation: Suggested Citation
Hollander-Blumoff, Rebecca E., Fairness Beyond the Adversary System: Procedural Justice Norms for Legal Negotiation (March 21, 2017). Fordham Law Review, Vol. 85, 2017; Washington University in St. Louis Legal Studies Research Paper No. 17-03-02. Available at SSRN: https://ssrn.com/abstract=2938765