For the past several years, I’ve been mulling through the implications of procedural justice in mediation and other forms of dispute resolution. Procedural justice is, simply enough, the justice of the procedures used to make decisions and resolve disputes. Researchers “discovered” procedural justice in the 1970s, as the American administrative state experimented with ways to allocate benefits on a mass scale and as citizens began to feel alienated from the bureaucratic decision making that resulted. The researchers found, first of all, that four procedural characteristics reliably resulted in perceptions of procedural justice. First and most strikingly, people had to feel that they had a chance to express themselves, either on their own or through agents who were most concerned about upholding their interests—e.g., lawyers. Second, people had to feel that the decision maker really heard and considered what they had to say. Third, people had to feel that the decision maker was trying to be even-handed and open-minded. Fourth, people had to feel that they (or their agents) were being treated with respect and dignity. How did people determine whether they had been heard, whether the decision-maker had tried to be even-handed and was treating them with respect? They watched for visual cues; they listened to the decision-maker’s questions and responses for acknowledgment of what they had said; if the decision maker issued a written decision, they looked for evidence that the decision maker had incorporated their information into his (it was pretty much always “his” in the 1970s) reasoning
And it turned out that a lot of good flowed from people’s perception that a decision making or dispute resolution procedure was just. People were more likely to perceive the resulting outcome as just; they were more likely to comply with the outcome; and they were more likely to perceive the institution making the decision or resolving the dispute as legitimate. These were (and are) all very important results for governmental institutions in a democratic nation.
The researchers also explained why procedural justice had such profound impacts. First, people valued the opportunity for voice because it gave them a chance to influence the final outcome. They could be more confident that the final decision would be fully informed and substantively fair. But this explanation turned out to be incomplete when researchers discovered that the opportunity for voice led people to perceive procedural justice even when they had been told that their views would not and could not influence the final outcome. Scholars today theorize that people use procedural justice as a heuristic for distributive justice. In addition, however, researchers found that procedures themselves communicate whether people are valued. People notice the opportunity for voice, consideration, and dignified, and even-handed treatment. The presence or absence of these cues sends a powerful message regarding social status which then impacts people’s self-identity and self-respect.
Most of the research that has been done in this area has involved decision making by authorities—judges, arbitrators, police, managers. More recently, researchers have found that procedural justice considerations also apply in consensual processes such as mediation and negotiation. And here’s where it gets really interesting. Research now suggests that the procedural justice of these consensual processes matters more to some people than to others. Very simply, the message of respect that is embedded in a just procedure is most important to those who care very much about relationships or feel vulnerable because they are of lower status than the other negotiator or are uncertain about their perceived status. Meanwhile, procedural justice is largely a non-issue for individualists or those who are confident of their own, higher status. For these negotiators or mediation participants, the favorability of the outcome is—and always will be—most important. Procedural justice is just a pleasant addition, and enjoyed only if the outcome is also favorable. (Cites to this research posted below.)
Why is this recent research so significant, at least to me? It helps to explain why so many people with power—managers, the dominant partners in unequal relationships, members of a dominant political party—often fail to extend the courtesy of listening–really listening–to those “beneath” them. Their current status, in a sense, leads them to believe that listening—or in the parlance of the procedural justice literature, providing consideration—is unimportant and unnecessary unless it will result in a change in the outcome. No change, no need to listen. Indeed, this is the attitude taken by the Supreme Court in the three-part balancing test for procedural due process announced in Mathews v. Eldridge. On the other hand, this research also reveals that people who care about relationships and/or are of lower or uncertain status are more likely to accept unfair outcomes as long as they are treated in a procedurally fair manner. They are ready to lose, as long as they can do it with dignity.
I have been a strong proponent of the importance of procedural justice for a long time, but this research has worrisome implications.
Joel Brockerner, David De Cremer, Kees van den Bos & Ya-Ru Chen, The Influence of Interdependent Self-Construal on Procedural Fairness Effects, 96 Organizational Behavior and Human Decision Processes 155 (2005)
David De Cremer & Tom Tyler, Managing Group Behavior: The Interplay Between Procedural Justice, Sense of Self, and Cooperation, in Advances in Experimental Social Psychology (M. Zanna, Ed., 2005)
Ya-Ru Chen, Joel Brockner & Jerald Greenberg, When Is It “A Pleasure To Do Business With You?” The Effects of Relative Status, Outcome Favorability, and Procedural Fairness, 92 Organizational Behavior and Human Decision Processes 1 (2003)