- The word justice comes from the Latin word “jus”, which means right or law. Justice is often used interchangeably with the word “fairness.”
- Justice should be blind but not blind with greed.
Marc Grossberg, The Best People: A Tale of Trials and Errors.
- Justice is not a legal matter but a human matter.
- Fairness is man’s ability to rise above his prejudices.
- Win or lose, do it fairly.
- Be fair. Treat the other man as you would be treated.
Everett W. Lord
- Fairness is what justice really is.
-These men ask for just the same thing, fairness, and fairness only. This, so far as in my power, they, and all others, shall have.
Fairness is a high value for Americans. They expect and even demand fairness with the law and then specifically with dispute resolution processes. Americans have long heard the mantra: No one told you life would be fair. They understand this AND they expect the implementation of law and dispute resolution to be fair.
Americans understand that life is not fair.
- Some people are born with good looks (judged according to the culture).
- Some people are born with high intelligence.
- Some people are born to rich families and others to poor.
- Some are born to loving families and others not so much.
Despite all of the above, Americans expect the legal system and the dispute resolution system to be designed and implemented fairly.
Statistics indicate that:
-95% of all crimes are plea negotiated/bargained; and
-98% of all civil complaints are negotiated
Usually without a determinative ruling by a judge or jury.
On the surface, this sounds positive, saving the legal system a lot of time and money, but are there unintended or ignored consequences?
Pleading guilty when they are criminally innocent. The National Registry of Exonerations reports that 18% of those exonerated had pleaded guilty under pressure.
While it’s hard to believe that the United States criminal justice system could be so deeply flawed that innocent people are convicted of crimes they didn’t commit, it’s even harder to fathom that some of those innocent people actually felt compelled to plead guilty, often in exchange for a reduced sentence or to avoid the death penalty. When so many innocent people are agreeing to their own wrongful convictions, it’s time to acknowledge that something is very wrong. The plea system is not a bargain; it’s a problem that has no regard for innocence.
We all are entitled to a criminal justice system that is fair, just, and adheres to the Constitution’s promise of a fair trial. And yet, we live with a broken system that no one deserves: prosecutors who threaten scared youth with harsh sentences, including the death penalty; incentives that make taking pleas over trial the most rational choice; overburdened and under-resourced public defense systems that can’t provide adequate representation; and, judges who fail to serve as a check on the truth and justice.
The National Registry focuses on serious crimes. Just think of all of the less serious crimes that result in guilty pleas who are not?
Settling Civil Cases But Not Guilty
There are literally thousands of civil cases that are settled outside of court simply to get rid of the distraction, the costs, but whatever is alleged may not have actually happened. Many companies and governments are paying out monies just to settle even over the objections of the person alleged to do the wrong.
This may be efficient for the parties involved and the legal system, but is this justice? In fact, is this encouraging more civil suits knowing that they will never go to trial?
The courts usually favor settlement. Settlement does not equate to justice and fairness.
The courts usually declare that they are overloaded and that settlement is a relief. One does wonder about the commonly accepted idea that the courts are overloaded. It seems as if many judges have a lot of time for presentations, panel presentations, judicial trips including international.
Examining the caseload of the U.S. Supreme Court may not be the right comparison to lower level courts but may be a window. At its height, the Supreme Court (SCOTUS) hears about 200 cases in 1970. During the 2020-2021 session, they accepted 62 from about 7,000 petitions.
Moreover it seems as if the cases accepted “lack gravity.” This number does not include emergency orders. To some, this may be a relief, but the caseload drop is dramatic. One assumes that SCOTUS salary levels remain the same despite the caseload drop? So, one does wonder about the sing-song of court case overload to justify the courts highly favoring and pushing out of court settlements.
80% of Judges are Former Federal Prosecutors
What do you think? Can former prosecutors or district attorneys be neutral judges? Do people realize that 80% of judges are former prosecutors or district attorneys?
In one jurisdiction, there were 13 judges. One, was from the defense bar; second, an attorney politician; the others, all former prosecutors.
The answer could be "Yes" if these prosecutors simply see their jobs as legal jobs, especially those directly out of law school.
The legal culture seems to treat being a prosecutor, being familiar with the courts,and processes almost like a stepping stone to judgeship.
On the other hand, if the lawyers are philosophically into prosecution, then maybe not.
The Cato Institute frames this lack of diversity a bit differently. They divide federal judges into those whose professional background was representing the government versus those whose background was challenging the government. The difference? 12 to 1.
There is definitely a lack of professional diversity with federal judges including the U.S. Supreme Court.
- 75% of federal judges can be classified as previous “advocates of government;”
- 10% are former “advocates for individuals;” and
- 15% somewhat represent both.
SCOTUS has had not representatives of the criminal defense for 25 years. Most believe that diversity enhances and enriches decision-making. Also, diversity promotes public confidence.
Judges Fair on “Hard” Issues But Show Their Politics on “Soft” Issues.
Some researchers divide legal issues into “hard” which includes patent, real estate, taxation, bankruptcy issues. “Soft” issues are such topics as immigration, family, sexual identity, transgender, abortion, etc.
Research and experience seems to indicate that judges, especially federal, do a diligent job in being fair in hard issues but show their politics in the soft issues.
In the soft Issues, there seems to be 90% predictability that their decision will match either their politics and the politics of their appointee.
Examples of soft issue rulings:
- Trump appointee Drew Tipton blocks President Joe Biden’s limitation on immigration arrests.
- Barack Obama appointee U.S. District Judge Mark Walker blocks Florida's "riot" law signed into law by Republican Governor DeSantis, stating the definition of riot was too vague.
- Barack Obama appointee Rosemary Marquez, a federal judge, threw out a major Trump administration rule that scaled back federal protections for streams, marshes, and wetlands across the United States, reversing one of the previous administration’s most significant environmental rollbacks.
- Many Democratically appointed judges are asking the U.S. Department of Justice why the charges against the perpetrators of the January 6 insurrection are so low. Many are simply charged with a misdemeanor of obstructing of justice.
- 8/26: In a 6-3 decision, the Supreme Court blocked the Biden administration's Covid-related eviction moratorium. "Congress was on notice that a further extension would almost surely require new legislation, yet it failed to act in the several weeks leading up to the moratorium's expiration," the court wrote in an unsigned, eight-page opinion.”
The vote split along party lines; that is, the three appointed by Democrats voted together.
- Obama-appointed judge Urrutia placed a stay on voting restrictions
- Obama-appointed judge K. Williams granted cruise company injunctive relief in regards to vaccination vs governor.
-Obama judge Randolph D Moss (Springfield, OH, b 1961) wonders why January 6 participants were only charged with obstruction charge not sedition/insurrection.
-Obama judge Beryl A. Howell wonders why prosecutors are only asking for $1.5M from January 6 criminals when insurrection costs $500M
In all dispute resolution processes: mediation, arbitration, case evaluation, and even negotiation, people expect fairness.
Historically, courts have favored dispute resolution, specifically arbitration. According to Wired:
The Supreme Court case centered around clauses in employment contracts that require employees to resolve disputes through arbitration, and preclude them from joining with others to file class-action lawsuits. In a 5-to-4 decision, the court ruled that those clauses are enforceable under federal law, which means companies can prohibit employees from banding together both privately or in court.
Such binding-arbitration clauses are widely used at technology companies, and critics say they helped allow sexual harassment to flourish by hiding complaints.
Before this case, arbitration in employment contracts was common; post this case, it may become the norm.
According to Impact Fund:
A new study from the Economic Policy Institute found that over 60 million American workers are subject to mandatory arbitration clauses, and that nearly 25 million workers have waived their right to bring a collective action.
UnFairness in Sexual Harassment Arbitration:
There are employment arbitration clause limits: Uber is now eliminating arbitration agreements in sexual harassment cases.
Microsoft is no longer enforcing arbitration in sexual harassment cases.
But in New York, the US Federal Court declared the sexual harassment arbitration ban to be unenforceable:
The 2018-2019 State Budget, which was signed into law in April 2018 by New York Governor Andrew Cuomo, contained several significant provisions addressing workplace sexual harassment, including a ban on pre-dispute agreements requiring arbitration to resolve sexual harassment claims “except where inconsistent with federal law.” On June 26, 2019, Judge Denise Cote, of the United States District Court for the Southern District of New York, in Latif v. Morgan Stanley & Co. LLC… June 26, 2019, held that this provision of the Budget is preempted by the Federal Arbitration Act (the “FAA”). Judge Cote’s ruling is consistent with prior authority holding that the FAA “preempt[s] any state rule discriminating on its face against arbitration.
FAA refers to interstate commerce so this ruling may not apply to disputes occurring solely in New York.
There is hope and a counter to the above ruling:
U.S. Congress Representatives announced bipartisan and bicameral legislation to empower sexual assault and harassment survivors…The Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act would stop perpetrators from being able to push survivors of sexual harassment and assault into the secretive, biased process of forced arbitration. This important legislation would invalidate forced arbitration clauses that prevent sexual assault and sexual harassment survivors from seeking justice and public accountability under the laws meant to protect them.
Unfairness in Employment Arbitration
Employees must wonder about arbitration fairness because:
- They are presented with arbitration clauses in their contact. The clause is not negotiable.
- Employees and customers win less often in arbitration.
- Employers often have a repeat player advantage when they appear before the same arbitrator.
UnFairness in Nursing Home Arbitration-New Mexico
The New Mexico Supreme Court (4/2020) ruled against a nursing home arbitration provision.
“We conclude that under New Mexico conscionability law a presumption of unfair and unreasonable one-sidedness arises when a drafting party excludes its likeliest claims from arbitration, while mandating that the other party arbitrate its likeliest claims,” the opinion written by Justice Shannon Bacon states. “This presumption stems from the lack of mutuality that correlates with overly one-sided contracts.”
Attorney Jeff Pitman, who represents the plaintiffs in the case, said nursing homes often use arbitration agreements, which are frequently included in a bulky admission packet and often don’t get explained very well.
“They’re asked to sign here, sign here, sign here, and usually we find that you’ve got an arbitration agreement tucked in there somewhere,” he said.
Fair Securities Arbitration-FINRA (Financial Industry Regulatory Authority)
FINRA operates the largest securities dispute resolution forum in the United States, and has extensive experience in providing a fair, efficient and effective venue to handle a securities-related dispute. The resolution of problems and disputes is accomplished through two non-judicial proceedings: arbitration and mediation.
FINRA is authorized by Congress to protect America’s investors by making sure the broker-dealer industry operates fairly and honestly. We oversee more than 624,000 brokers across the country—and analyze billions of daily market events.
To most, this arbitration system seems fair. FINRA has a roster of arbitrators and mediators of which the parties agree.
According to attorneys Shustak, Reynolds, and Partners:
FINRA’s arbitration forum has been criticized by investor rights and consumer protection groups, who claim the forum is unfair to investors. Among other differences from court,
FINRA cases are decided by arbitrators, rather than a judge or jury; the proceedings are not a matter of public record (the only aspect of a FINRA arbitration that is public is the final award, if there is one); and the discovery tools available to litigants are more limited. Depositions and interrogatories are generally prohibited.
Critics of FINRA arbitration also challenge the statistical “win rate” for public investors. Each year, FINRA analyzes its arbitration docket and publishes statistics on the types of cases brought and the relief, if any, awarded. Over the past 5 years, those statistics show that investors recovered money in just 38-43% of arbitrations that proceed to a final hearing. And those investors who do recover money rarely recover all or anywhere near the total damages claimed. These “win rate” statistics do not, however, reflect the more than 80% of filed cases that are settled, withdrawn or otherwise resolved prior to hearings. Nor is there empirical data to demonstrate investors would fare substantially better in court than in arbitration, as court often is a more costly forum in which to litigate. But the point is, according to critics, that investors should be able to choose the forum for their claims.
UnFairness in Mediation
Very often a company or agency will offer employment mediation. Many of these designate their Human Resources Employees to be the mediators. In the definition of mediation, the mediator must be fair and neutral. HR employees work for and are hired by Company Management. Very few of the so called HR Mediators are viewed by employees as “neutral and fair.”
There is one agency that uses co-mediation. One mediator is an outsider and the other, an insider. The reasoning is that an outside mediator cannot understand the complexities of the agency. It is unclear why the mediator needs to know this information since they are mediating between two people who work for the agency. All those who participate also complete evaluations. They usually rate the outside mediators as 95% neutral and fair; whereas, the inside mediators are rated at 50%, neutral and fair.
So, Americans have the right to expect and to get fairness for the U.S. Legal System. Fairness includes real neutrality for those people and processes who profess to be such. Fairness also includes “choices.” If one learns about a dispute resolution process like arbitration, all parties should be able to opt in or out.
“Choice” was the essence of the ABA (American Bar Association) experimental program: The Multi-Door Dispute Resolution (Courthouse) Project.” This experiment involved a taxonomy of disputes. Each dispute would be analyzed with a recommended dispute resolution process that matched the dispute qualities. Each ”door” symbolized a separate dispute resolution process. The parties would then “choose” the dispute resolution process whether that be mediation or arbitration, etc.
See Recommended Books under “Blogs” drop down menu. Clicking on any book will lead one to the discounted Amazon site.
Roy J. Lewicki is the author of 'Essentials of Negotiation', published 2015 under ISBN 9780077862466 and ISBN 0077862465. Publisher: McGraw Hill Higher Education
The Conflict Resolution Training Program, Leader’s Manual, ISBN: 0-7879-6077-2. Prudence Bowman Kestner and Larry Ray
5 Languages of Appreciation in the Workplace.
Getting Your Way Every Day.