This Essay crystallizes core elements of the major dispute resolution processes: litigation, arbitration and mediation. The purpose is both to clarify essential characteristics of and the role of the neutral in each process and to identify the relation of those characteristics and that role to a conception of  justice.  The piece explores whether certain shifts in process characteristics or the neutral\u27s role (for example, arbitration that is not voluntary or a mediator adopting an evaluative orientation) so fundamentally change the particular process as to compromise its relation to a compelling conception of fairness and justice

Love, Lela P.

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Pepperdine Dispute Resolution Law JournalVolume 1 | Issue 1 Article 412-1-2000Images of JusticeLela P. LoveFollow this and additional works at: https://digitalcommons.pepperdine.edu/drljPart of the Dispute Resolution and Arbitration CommonsThis Article is brought to you for free and open access by the School of Law at Pepperdine Digital Commons. It has been accepted for inclusion inPepperdine Dispute Resolution Law Journal by an authorized editor of Pepperdine Digital Commons. For more information, please contactjosias.bartram@pepperdine.edu , anna.speth@pepperdine.edu.Recommended CitationLela P. Love, Images of Justice , 1 Pepp. Disp. Resol. L.J. Iss. 1 (2000)Available at: https://digitalcommons.pepperdine.edu/drlj/vol1/iss1/4Images of JusticeLela P. Love tStrong and appealing visions shape lives and actions profoundly. Con-sider how Martin Luther King's I Have a Dream vision, aligned with his phi-losophy of nonviolence, personal courage and self-sacrifice, propelled the ulti-mate integration of public facilities in America. In contrast, the Black Panthersymbol and Black Power rhetoric energized an entirely different movement toaddress repression and the aftermath of a historical era that embraced the en-slavement of large groups of people. Or consider how Gandhi used nonvio-lent protest in India to shift power from "haves" to "have nots" in a mannerthat was inconceivable before or without his vision.The strength, clarity and appeal of different images of justice help deter-mine the acceptability and success of the processes associated with thoseimages. For any system of justice to be acceptable to parties who believe thatan injustice has occurred, the ideal behind and the workings of the process it-self must be consistent with a clear and compelling vision of fairness.While vision and reality can part company from time to time, buffetedby the exigencies of particular situations, one cannot stray far from the heartor soul of an enterprise without jeopardizing its fundamental health and well-being. In an effort to capture the vision behind the three major dispute resolu-tion processes, this essay will present an image of a judge, an arbiter and amediator. The analysis will note how current practices, in many respects, havestrayed from these images and point out the danger of having a process di-vorced from a compelling "justice" rationale.LitigationStanding straight and tall in public places, a blindfolded woman holds upscales. Since she is blindfolded, she cannot be swayed by gender, race,wealth, or other influences or advantages that one party might hold. On herscales, disputing parties rest their case: the best they can muster for them-1. Lela P. Love is a clinical professor of law and director of the Kukin Program for Con-flict Resolution at Benjamin N. Cardozo School of Law. This essay is dedicated to individualswho have in their careers or personal lives stepped forward to rescue and revive victims of theinexorable working of systems of "justice." Most notably, in my own experience, Barry Scheck(Cardozo's Innocence Project) and Russell \Veatherspoon. Thanks to Dan vcitz. Simeon Baumand Martin Love for thoughtful comments and suggestions.1Love: Images of JusticePublished by Pepperdine Digital Commons, 2000selves and the worst they can present about the other side. The matter isweighed on these scales in public view, and the balance resolves the matter.The scales themselves get more precisely balanced after each weighing,after each case. The weight and moment of precise and particular factors arecalibrated, and the blindfolded lady announces how much factors weigh, thistime, and for all time.Should a party suspect that the scales were out of balance or the blind-fold had been lifted, he may appeal to higher authorities to test the integrityof the process.This lady is accessible to all, rich and poor alike. Like the other com-manding woman standing at the Golden Door in NYC harbor with a torch ofliberty, she says, "Give me your tired, your poor, your humbled massesyearning . . . " And if one party invokes her aid, the other must answerand counter-weight the scale, or risk an unfavorable verdict. He must alsorisk the power behind this blindfolded figure-the power of the state to takeand give property and liberty.If Martin Luther King were delivering an I Have a Dream Speech aboutthe process this blindfolded woman symbolizes it might sound something likethis:I have a dream that every person can bring a claim to a public place and an intelligent,experienced and impartial third party chosen or appointed by democratic process will as-sess the facts, apply the law and determine the outcome. The whole world will watch tokeep this forum honest.I have a dream that this forum will be accessible, the procedures straightforward, efficientand understandable, the costs appropriate, and the determination speedy.I have a dream that judges will help define, clarify, and broadcast our public norms byfocusing all their attention on the explication of the law as it intersects with the facts ofeach case.I have a dream that every judge is charged with ensuring that his or her corner of thedispute resolution universe offers a fair and clean playing field. No judge will try to co-erce settlement by threatening parties with onerous outcomes. Every judge will treat eachparty with courtesy and respect.ArbitrationWise, sophisticated, trusted, and honored in his community, the arbitratoris chosen by the parties who can agree that whatever such a person decides isjust. The arbitrator does not wear blindfolds because the parties trust his dis-cretion. On the other hand, the arbitrator cannot meet privately with a party,because the parties do not trust each other.2Pepperdine Dispute Resolution Law Journal, Vol. 1, Iss. 1 [2000], Art. 4https://digitalcommons.pepperdine.edu/drlj/vol1/iss1/4[Vol. 1: 29, 2000]PEPPERDINE DISPUTE RESOLUTION LAW JOURNALThe arbitrator stands, aloof from the parties, arms folded in skepticism,but listening attentively for each clue which will piece together the puzzle offacts he must see clearly.The gift the arbitrator gives the parties is a prompt decision informed byhis expertise in the particular arena. His decision is bound to favor one partyover the other, but his quick and precise award will allow the parties to moveon with their lives and their businesses.There is no appeal from this arbitrator because, in choosing him, the par-ties chose to live with what he decides. Thus, the power of the arbitrator isimmense, once conferred by the parties, and is further bolstered by the blind-folded lady who will ensure that his awards are honored.If a party were delivering an I Have a Dream speech about arbitration, itmight sound something like this:I have a dream that I can create mV own forum and choose my own arbiterI have a dream that a special and wise expert in the particular arena of the dispute.whom I trust, can hear my dispute, and I can accept his or her judgment and put thematter behind me, win or lose.I have a dream that my dispute can be resolved in a private place, so that the indignities,dangers, and damages of a public forum do not compound the upset and anger of beingin conflictI have a dream that arbitrators are charged with ensuring that their corner of the disputeresolution universe offers a fair and clean playing field. No arbitrator will try to coercesettlement by threatening parties with onerous outcomes. Every arbitrator will treat eachparty with courtesy and respect.MediationIn this image one sees a figure sitting with the parties, her hands reach-ing towards each of them as if to support them in telling their tale or to cau-tion them in listening to each other to weigh the matter more carefully. It isalso possible that her outreached hands are pointing to the parties to remindthem of their responsibility for dealing thoughtfully with their situation andeach other, understanding the opportunities and risks inherent in variouschoices, and summoning their creativity in addressing the conflict.The figure is not alone or aloof. Her outstretched arms form a bridge be-tween the parties, so that communication and positive energy can flow again.Her presence is a catalyst setting in motion the potential that the parties hold.3Love: Images of JusticePublished by Pepperdine Digital Commons, 2000Unlike the blindfolded lady, the mediator sees all that is offered unpro-tected by formal procedure or rules of evidence. Unlike the arbitrator or thejudge, the mediator may meet with the parties together or listen to them pri-vately so that each nuance of meaning and each atom of possibility are cap-tured and offered back, in their most palatable form, for the parties.The mediator's features are hazy, since the focus and light remains onthe disputing parties. Her presence, however, exudes optimism, respect, andconfidence in the parties' capacity. She brings an energetic and urgent sensethat justice can be done by the parties' own hands.If a mediator were delivering an I Have a Dream speech about media-tion, it might sound something like this:I have a dream that I can offer a safe and private place for parties in conflict to comeand sit together at a table.I have a dream that I can help disputing parties tell their stories and explain their feel-ings and values to each other in a manner that might enable one another to understandmore clearly and perhaps build or preserve their relationship.I have a dream that the dispute can be resolved in a private place, so that the indignities,dangers, and damages of a public forum do not compound the upset and anger of beingin conflict.I have a dream that I can assist parties in discovering or constructing outcomes that seemreasonable and optimal to them.How do current practices and trends part company with the blindfoldedlady? In 1853, in his novel Bleak House, Charles Dickens sounded an alarmabout the state of the courts:"This is the Court of Chancery . . .which gives to monied might the means abundantlyof wearying out the right; which so exhausts finances, patience, courage, hope; so over-throws the brain and breaks the heart; that there is not an honorable man among its prac-titioners who would not give-who does not often give-the warning, 'Suffer any wrongthat can be done you, rather than come here.' "2Similar sentiments have been echoed by eminent jurists and scholars. In1982, Chief Justice Warren Burger summarized dissatisfaction with litigation:"Our system is too costly, too painful, too destructive, too inefficient for atruly civilized people."' 3 In addition to the shortcomings pointed out by Dick-ens and Burger, other trends jeopardize the accuracy and integrity of the im-age presented by the blindfolded "justice". For example, the system of pleabargaining in criminal cases has virtually supplanted trial by a jury of peers,2. CHARLEs DIcKENs, Bleak House (first published in 1853), Penguin Classics 1971, at 51.3. Warren Burger, Isn't There a Better Way?: Annual Report on the State of the Judiciary,Remarks at the Mid-Year Meeting of the American Bar Association (Jan. 24, 1982), in 68 A.B.A.J. 274, 275 (1982).4Pepperdine Dispute Resolution Law Journal, Vol. 1, Iss. 1 [2000], Art. 4https://digitalcommons.pepperdine.edu/drlj/vol1/iss1/4[Vol. 1: 29, 2000]PEPPERDINE DISPUTE RESOLUTION LAW JOURNALwhich places heavier charges, stiffer penalties, and the displeasure of theprosecutor and judge on the scales for any defendant so brash as to claim in-nocence and seek trial. Also, judges must manage and move heavy dockets,which places a premium on administrative and management skills over andabove qualities and capacities necessary to weigh matters precisely and to ar-ticulate norms eloquently.4 Finally, the expectation that judges becomemediators of their own cases tempts the blindfolded lady, under the guise of"mediator", to coerce the parties into settlement out of fear of displeasingthis mediator-judge.5What happened to the wise arbiter and his efficient process? By the1990's scholars and practitioners were saying that arbitration had been ru-ined.6 The key features of arbitration-simplicity, low cost, finality, andspeed-have been eroded by lawyers who bring in the cumbersome attributesof litigation-formality, delay, great quantities of paper, motions, appeals, andhigh cost.7 Additionally, the proliferation of arbitration clauses in employmentand consumer agreements, places where it is unlikely that there is meaningfulconsent to an alternative form of conflict resolution, undermines the contrac-tual feature of arbitration as a process emanating from and built by the partiesthemselves. So arbitration shifts to being a litigation look-alike, but withoutthe protections of litigation's publicly chosen judge, public forum, and ap-peals process or arbitration's protections of truly informed party consent andparty-chosen neutral(s).What is happening to mediation? As lawyers are taking training pro-grams geared towards "spinning the mediator" to gain a competitive advan-4. See State of the States: Dispute Resolution in the Courts. ruE CAwRozo 0.NIw' JoUtR.NAT Op Coiucr REsoLtrrov, wivcardozo.yuedulcojcr, quoting Daniel Weitz, N.Y.S. ADR Co-ordinator, stating: "Judges are often measured, reviewed and critiqued by the degree to whichthey can move cases along within certain time frames... A certain 'judicial badge of honor'has even evolved for those judges who have developed a reputation for being 'great settlers.'5. See James J. Alfini, Risk of Coercion Too Great, DsUTm REsoLmtuou MAGAmE (Fall1999) at 11 (concluding that judges should not mediate cases assigned to them for trial).6. See generally L.EONARD L RiSKIN AND JAMEs E. WESmROOK, DtstM REsoLno. ANDLAwyrRs (21d ed.) 585-588 (noting ways in which arbitration is becoming more like litigationand is losing its essential characteristics) and Kimberlee K. Kovach and Lela P. Love. MappingMediation: The Risks of Riskin's Grid, 3 Htv. NEG. L Rv. 71. at 90-91 and accompanyingfootnotes, (discussing how arbitration has lost much of its appeal due to becoming more likelitigation).7. See id.5Love: Images of JusticePublished by Pepperdine Digital Commons, 2000tage, and mediation (as arbitration has done) is becoming more legalized 8,mediation, too, might stray from the image of a mediator as a bridge betweenthe real parties. For example, in many programs parties file pre-mediationconfidential briefs with the mediator which often resemble litigation papers,rather than having features specifically targeted towards mediation. There isalso a tendency for attorneys to choose (on behalf of their clients) mediatorswith extensive litigation or judicial experience who are expected to providecase evaluations, transforming mediation into an adjudicatory process.9 A log-ical result of these trends may be that, like arbitration, mediation may moveaway from its roots and become an attorney-dominated, adversarial and evermore costly proceeding.'0In 1966 Martin Luther King and Stokely Carmichael participated in the"March Against Fear", a walk from Memphis, Tennessee to Jackson, Missis-sippi organized by leaders of the civil rights movement. During that march,tension developed between King and Carmichael. King was committed tononviolence. At one point the members of the Mississippi Highway Patrolshoved demonstrators, and Carmichael bitterly complained. An activist com-mitted to nonviolence teased Carmichael about his reaction: "You see,Stokely, the difference between you and the military is that a soldier has sin-gleness of purpose. When you get shoved you get confused. If you're reallynot nonviolent, you ought to get a gun and be a guerilla."" Before the marchwas over, Carmichael's group broke away from the others and adopted theslogan, "Black Power!" Many date this incident as the beginning of theBlack Power Movement.' 28. See The Director as Futurist: Jack Hanna Previews 'Coming Attractions' in ADR, 4ADR REPORT no. 4,at 3-4 (Feb. 2000)(noting that mediation is becoming more adversarial, hostileand confrontational).9. In a survey of 600 members of the Hillsborough County (Fla.) Trial Lawyers Section byMartha J. Cook, Esq., in which 160 lawyers responded, 90% of the respondents indicated thatthey would prefer "evaluative" mediation. See Martha J. Cook, Hillsborough Survey (1997); seealso Kovach & Love, supra note 6, footnotes 70 and 72 and accompanying text at 85 (discussingan attorney preference for "evaluative" mediation).10. See Mary W. Holden, As Courts Overflow, Mediation Flourishes, CHICAGO LAWYER.Mar. 1997, at 20 (quoting James J. Alfini: "Arguably what happened to arbitration is that law-yers got a hold of it and turned it into a mini-adjudication. I worry that's going to happen to me-diation as lawyers colonize the field."). See generally Kovach & Love, supra note 6, at 92-98(discussing the mutation of mediation).11. Attributed to Rev. James M. Lawson, Jr., who has been termed by historians the non-violent strategist of the civil rights movement and was a close advisor to Martin Luther King.Unpublished manuscript, written for the L.A. Time Magazine by historian Spencie Love, Profileof James M. Lawson, Jr. (1998)(on file with author).12. Id.6Pepperdine Dispute Resolution Law Journal, Vol. 1, Iss. 1 [2000], Art. 4https://digitalcommons.pepperdine.edu/drlj/vol1/iss1/4[Vol. 1: 29, 2000]PEPPERDINE DISPUTE RESOLUTION LAW JOURNALLike Stokely Carmichael confronted by brutal Mississippi officers, theblindfolded woman might get confused when she is charged with settlingcases and managing overwhelming dockets. When we impose an arbitrator onparties who have not accepted that person as their decision-maker, the ratio-nale for the process becomes muddled. They will be confused as to why theprocess is "just." When we ask a mediator to stand back and judge the mat-ter, she will get confused. We need to keep the images clear and true so that,at least, we have guide stars and, at best, we have meaningful alternativeswhen we seek systems for responding to the crisis of conflict.In this new millennium, we should continue to build novel processes,like the mini-trial, the summary jury trial, neutral experts, non-binding arbi-tration, medene (mediation combined with early neutral evaluation), arb-medand med-arb, 13 but each new process must have a clear rationale and normsof practice which place it in the constellation of processes offering parties acohejrent method of achieving justice. Since we already have powerful, work-able images and processes, we must guard and develop our systems, proce-dures, protocols, and trained skilled practitiohers to deliver on the promisesthese ideas and symbols hold out. We must block trends that run counter toformative visions. Whether our processes are pure or hybrids, to keep theirpower they must keep close to their heart and soul, as King and Gandhi keptclose to the visions they held dear. The processes and the practitioners inthem must remember their point of origin.13. For summary definitions and descriptions of these and other dispute resolutionprocesses, see RisKiN & WVEsTBROOK. supra note 6. at 1-11.7Love: Images of JusticePublished by Pepperdine Digital Commons, 2000368Pepperdine Dispute Resolution Law Journal, Vol. 1, Iss. 1 [2000], Art. 4https://digitalcommons.pepperdine.edu/drlj/vol1/iss1/4

Images of Justice

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Images of Justice

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