A New Research Framework

Empirical studies suggest that adversarial proceedings are capable of generating greater party satisfaction. In 1974, Laurens Walker et al. conducted a study of 99 male business students.² Starting from the premise that the perceived fairness of both the procedure and outcome of a dispute resolution process was important to its legitimacy and parties’ resulting “feeling of justice”, they conducted a business simulation where a controversy would place the participants as defendants in a trial. Using a control group, they examined the effects of adversarial and non-adversarial procedures, pretrial belief about guilt, and outcome of the judgment on the participants’ perceptions of the adjudication. The results showed that

The authors provide several hypotheses to explain the results of their study. The physical separation of the spokesman in the adversarial trials may have produced an aura of equality essential for the perception of a trustworthy and satisfactory procedure. There could be a preference for processes that balance the biases of two attorneys (adversarial representation) rather than an essentially individual process that attempts to rule out bias altogether (inquisitorial representation). There could also be a cultural specification of “proper” adjudicative procedure. In other words, the subjects, being presumably aware of the frequent use of adversarial procedures in American trials, may have considered deviations from this model to be unfamiliar and thus untrustworthy and unsatisfactory. The authors nuance this latter explanation, however, by mentioning that French participants, who would be used to an inquisitorial system, also preferred the adversarial procedure to the inquisitorial model.³

Empirical studies have also identified subjectively perceived procedural fairness of a dispute resolution mechanism as a key factor contributing to party satisfaction . Since 1988, Tyler and his collaborators, particularly E. A. Lind, have conducted several studies to examine why people obey the law.⁴ According to Tyler , public support for laws and authority is based on how citizens judge the way in which such authority exercises power.⁵ Procedural fairness induces the general belief that a legal system is trustworthy, which is more crucial to explaining voluntary compliance with the system than traditional rational choice theory, cost-benefit explanations in terms of the risk of being caught and punished, the ability of legal proceedings to lead to favourable outcomes, or deontological, Kantian ethics that explain compliance through a general moral standard that laws must be obeyed.⁶

A 1990 study by Lind et al. showed that perceived fairness and outcome satisfaction are mainly subjective and that they correlate with attitudes rather than objective measures such as a favourable outcome, delays, or costs. A litigant’s perception of fairness would thus depend more on whether he or she had modest expectations about his or her case than on whether he or she received a favourable outcome.⁷ In this study, Lind et al. interviewed litigants in personal injury disputes that were resolved by trial, court-annexed arbitration, judicial settlement conferences, or bilateral settlement. According to them, a distinction can be drawn between parties’ perception of procedural fairness and their satisfaction with the outcome of a dispute, which tracks Thibaut and Walker’s work showing little to no correlation between the two concepts. Thibaut and Walker notably argued that control over the case outcome and process is a crucial factor in the perception of procedural fairness, because greater control over process is seen as leading to fairer outcomes.⁸ However, the procedural complexity and formality of a trial are thought to limit opportunities for litigant participation in the dispute resolution process. Taking a somewhat different but compatible stance, Lind and Tyler suggest that perceived fairness depends largely on symbolic features of the procedure and the implications of these features for the social status of the person in question; they argued that “dignitary process” issues are extremely important because respectful and dignified treatment implies that one is a full-fledged, valued member of society.⁹ Lind et al.’s 1990 study led to the following results:

Thus, it appears that dignitary processes produce stronger perceptions of procedural justice, arguably because litigants feel that the persons and subject matter involved in the dispute have been treated as being important and have been accorded respect.¹⁰

In 1997, drawing on these findings and the idea that people expect the courts to conform to their moral values, Tyler proposed a multicomponent description of what leads a procedure to be viewed as fair.¹¹ According to Tyler , perceived fairness stems from four elements that have nothing to do with the outcome of a case. Two broad findings are noteworthy. First, citizens have very different expectations about the legal system than do lawyers and judges, bringing to light the existence of a gap between desirable treatment and outcome as defined by a justice system’s “clients” and as defined by the formal structure of the law . Second, litigants are more interested in their long-term social bond with legal authorities and the legal system than with the outcome of a particular case; the ways disputes are handled do matter because they give people information about their status within society. People accept losing a case more easily if this does not have negative implications for their social reputation and the likelihood that “over time they will receive fair outcomes from the legal system and society more generally.”¹²

Tyler identified the following four values, which apply once individuals are actually engaged in dispute resolution,¹³ as providing greater satisfaction¹⁴:

Participation ¹⁵ in decisions that affect the resolution of dispute is the first key factor. To be meaningful, as opposed to just formal, participation involves (1) having an adequate chance to state one’s case and (2) having an unbiased, impartial decision-maker to actually hear the arguments . Ethnographic studies of narratives in court show that people want to tell their story but look to legal authorities to put that story in relevant legal form and make decisions about which legal principles to apply. Finally, hearing the other side of the case seemingly provides additional benefits regarding a party’s willingness to compromise or accept an unfavourable outcome, confronting litigants with the idea that justice is not necessarily “on their side”.¹⁶

Trustworthiness is the second factor and is viewed by Tyler and Lind as the primary factor in evaluating procedural fairness.¹⁷ Trustworthiness implies primarily that third-party neutrals care about the litigants (ironically, judges are mostly trained to interpret the law, a skill that pertains more to neutrality than trustworthiness). In order to achieve trustworthiness, third-party neutrals must (1) be motivated to treat litigants in a fair way, (2) be concerned about the litigants’ needs, (3) consider the litigants’ arguments, and (4) justify their own decisions.¹⁸

Interpersonal respect, in the sense of “procedural dignity”,¹⁹ is the third key factor. Respect or procedural dignity does not necessarily involve a ceremony. Rather, it involves (1) being treated politely, (2) being treated with dignity and respect, and (3) having respect shown for one’s rights and status within society.

Neutrality in making decisions, a value traditionally emphasized by jurists, is the last key factor. Neutrality is shown in practice through (1) assessments of honesty by third-party neutrals, (2) their impartiality, and (3) the use of facts rather than personal opinions as the basis of decisions.²⁰

Neutrality and interpersonal respect work hand in hand. For example, Tyler underlines the loss of trust that occurs where community policing has been replaced by broadened and less personalized policing. According to him, “authorities need to create their own legitimacy on an individual basis. They cannot rely on the general legitimacy which they may have as a member of the police force.”²¹ There are broader implications if one is to conceive of neutrality as central to the implementation of the rule of law , because of the importance people place in the personal characteristics of a judge, mediator, or police officer. As Tyler notes, “Although the rule of law suggests a focus upon the neutrality of procedures, even within such procedures people are strongly affected by their views about the particular authorities with whom they are dealing.” This is particularly relevant in countries “where personal networks have served as an important source of authority.”²²

Despite the general view that unfavourable outcomes do not matter in litigants’ perceptions of fairness, Tyler added nuance to this position in his latest account of procedural justice.

According to Tyler, procedure acts as a cushion of support to mitigate the effects of unfavourable outcomes delivered by legal authorities.²³ If authorities deliver unfavourable outcomes through a procedure that is viewed as fair, the unfavourable outcome does not, in and of itself, harm the legitimacy of the authorities. His studies also “contradict the suggestion that procedural justice matters less when the outcomes are more important.” It actually matters at least as much.²⁴ In the long run, however, continuous delivery of unfavourable outcomes may undermine the legitimacy of the judiciary, though this has not been proven and some studies actually point to the contrary.²⁵ Tyler thus concludes that the cushioning effect of fair procedures is very robust. Tyler also notes that prior positive views about the legitimacy of authorities tend to shape a legitimate view of the authorities’ actions at a later date.

From these findings, we can draw three significant conclusions. First, even in contentious contexts, people are more interested in their long-term bond with society than in their short-term gain or loss. This finding is important. It contradicts the idea that the rule of law should only be concerned with short-term achievements. Second, despite the social-bond factor, people still think strategically when they evaluate their course of action prior to commencing a dispute resolution process. As a result, outside of a dispute resolution context, a rational choice framework is still an adequate model of peoples’ preferences. This effectively means that dispute resolution processes are instrumental in placing the social bond first and self-interest second—that is, in recreating the social fabric . Third, although studies are not yet available to prove this conclusion, we may presume in the interim that dispute resolution experiences shape citizens’ perceptions of the fairness of a legal system and therefore influence the strategic choices they may have to make at a later date. Negative experiences may lead citizens to resolve their disputes in private. This observation is important because it articulates the key role institutions play in effecting social change: a citizen’s interaction with a public institution like the court system generates information about the trustworthiness of that institution.