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Can Judges Provide Access to Justice Through Settlement Conferences?

Jennifer Shack, April 30th, 2019

This following isn’t new research (it was published in 2016), but it does present a framework for examining access to justice in ADR processes.

In research he conducted in Quebec, Jean-Francois Roberge found that judicial settlement conferences offer parties a sense of access to justice (SAJ). He also determined that particular factors were linked to parties having a more positive perspective of the process. These included judge behaviors and process characteristics. He discusses this research in “’Sense of Access to Justice’ as a Framework for Civil Procedure Justice Reform: An Empirical Assessment of Judicial Settlement Conferences in Quebec (Canada),” (Cardozo Journal of Conflict Resolution, 2016).

Roberge had two objectives for his research. The first objective was to assess parties’ perceptions of the quality and value of the settlement conference. The second research objective was to identify the factors that had a determining influence over the degree of SAJ the users had.

Background

To explore the capacity of settlement conferences on participant sense of access to justice, Roberge developed a “Sense of Access-to-Justice Index,” which is based on the Hague Model Measuring Access to Justice, but tailored to settlement conferences. The SAJ Index contains what Roberge calls the three pillars of SAJ:

  • The user’s feeling of fairness of outcome and process
  • The user’s feeling of usefulness of the process (particularly cost-effectiveness)
  • The user’s sense that professional support was available from the judge-mediator

Each of these is made up of subcomponents. The user’s feeling of fairness of outcome and process is based on the quality of the outcome and quality of the process.  The quality of the outcome is based on four types of fairness:

  • Distributive fairness –does the outcome match the parties’ capacity, limits and needs?
  • Reparative fairness – does the outcome compensate for loss (both financial and non-financial)?
  • Functional fairness – does the outcome resolve the problem?
  • Transparent fairness – is the outcome substantiated and comparable to outcomes in similar situations?

The quality of the process is based on:

  • Fairness of process – decision-making process is coherent and impartial and allows the parties to be heard, considered and involved
  • Informational treatment – transparent communications lead to an enlightened decision
  • Interactional treatment – sincere communications respect the parties’ status and dignity

Usefulness of the process is focused on different types of cost:

  • Financial costs
  • Psychological and emotional costs (stress, negative feelings)
  • Opportunity costs (especially to business and reputation)

The feeling of professional support depends upon three approaches judges use to help parties obtain justice and the presence of participatory justice:

  • Risk manager – the judge assesses the strengths and weaknesses of each party’s case
  • Problem-solver – the judge identifies the needs and interests of parties
  • Justice facilitator – the judge develops a relationship of cooperation and trust between the parties

Participatory justice is the involvement of the parties in the “process to define and settle their dispute in a way that generates a feeling of justice for them. Collaboration, respect, proactiveness, and creativity are all statistically significantly correlated with the concept of participatory justice.” (p. 346)

The Study

The judges who conducted the settlement conference had been trained in facilitative mediation and integrative problem-solving. Questionnaires were distributed to parties and lawyers directly after the settlement conference. The questionnaires consisted of 67 items that explored the parties’ and lawyers’ SAJ, utilizing the theoretical framework discussed above. They were completed by 380 parties and 360 lawyers.

Findings

SAJ Score

Roberge developed a 100-point scale for each of the three areas of SAJ (the participants’ feelings of fairness, usefulness and professional support). The aggregated SAJ score for all respondents was 83 (averaged across the three areas), with usefulness (89) and support (88) being higher than fairness (71). Parties on average scored their experience lower than lawyers, particularly in terms of fairness. Parties scored a 65 on fairness, while lawyers scored a 77.

There were discrepancies between other groups in the survey as well.  Defendants were significantly more positive than plaintiffs. Those who reached agreement were  more positive in their ratings than those who did not. There was also a significant difference in assessment based on costs. The higher the costs incurred, the lower the assessment. Further, those who lost more than $10,000 in opportunity costs or spent more than 100 hours resolving the problem gave lower assessments of the process.

Factors Influencing SAJ

Roberge also looked at which factors influenced different aspects of SAJ, based on the participants’ answers to the 67 items on the questionnaire. The factors listed below are verbatim and were presented in the article without explanation. I tried to glean what they each mean from elsewhere in the article, which proved difficult. Any wording in parentheses is my understanding of what those items mean based on Roberge’s discussion of the factors.

The following had the most influence on the participants’ feelings of fairness, listed by order of how much influence each had:

  • Active judge for a fair solution for the parties (judge who helps the parties find a solution that appears to them to be fair and adapted to their needs)
  • Facilitative judge towards a sense of justice
  • Communication that allows to create trust (communication process that creates trust)
  • Unbiased process in favor of a party
  • Judge listens to needs and interests of the parties
  • Communication that allows justification
  • Process compliant to ethical norms
  • Active judge for a solution based on needs

Factors influencing participants’ sense of usefulness:

  • Communication that allows to create trust (communication process that creates trust)
  • Negotiated solution less risky than trial
  • Process that allows involvement of the parties
  • Negotiated solution faster than trial
  • Process that allows consideration of the parties
  • Communication that allows justification

Factors influencing participants’ sense of professional support:

  • Active judge for a fair solution for the parties (judge who helps the parties find a solution that appears to them to be fair and adapted to their needs)
  • Judge listens to needs and interests of the parties
  • Facilitative judge towards a sense of justice
  • Judge looks for a solution based on needs
  • Process compliant with ethical norms
  • Judge listens to legal positions

Conclusion

While the article is somewhat frustrating in that Roberge never fully describes the factors influencing participant perspectives on their experience in the settlement conference and doesn’t provide a list of the questionnaire items used to develop the factors, it is an interesting take on measuring access to justice for a legal process. It is more common, at least in the US, to break down his determinants of a sense of access to justice into individual elements: access to justice, cost and procedural justice. Pulling them all together creates a more global conception of access to justice, one in which justice is not accessed unless the process provides procedural justice and limits psychological and emotional costs.

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