JUSTICE AND DISPUTE SYSTEM DESIGN
Syllabus Spring Semester 2007 

Prof. Lisa Blomgren Bingham
Visiting Professor of Law
UC Hastings College of the Law
Room 1227
100 McAllister Street
San Francisco, CA 94102
Email: binghaml@uchastings.edu 

Description: Proponents advocate alternative or appropriate dispute resolution (ADR) as a means of providing justice other than through the civil or criminal justice systems. They argue that these systems are either inaccessible or ill-suited to address the interests of disputants. Employees may seek recognition of unfair or inappropriate treatment in the course of a long and perhaps continuing relationship. Divorcing couples need to learn how to resolve disagreement and collaborate on parenting after the marriage ends. Businesses may wish to turn a contract dispute into a new and more workable long-term deal. Victims of crime may seek evidence of remorse and want personal forms of restitution instead of prison terms. Proponents argue that dispute resolution can provide better procedural justice; disputants with more voice in and control over a decision-process perceive the process and its outcome to be fair. Proponents also argue that these processes can provide better substantive or distributive justice than a civil justice system that the disputant needs a lawyer to navigate.

            However, a case in which parties use dispute resolution does not occur in a vacuum. It occurs in the context of a system of rules and steps called a dispute system design. Moreover, it exists in the shadow of traditional justice systems. The civil and criminal justice systems represent dispute system designs created by a third party, government, in the context of a constitutional framework and the rule of law. Critics point out that government is not the only player that has an opportunity to shape and control dispute system design. Some commentators have identified the privatization of justice as a significant issue. For almost a century, the courts have protected the rights of contracting parties mutually to create a private justice system, for example in labor relations or commercial contracts, in which they substitute mediation and/or binding arbitration for litigation. More recently, the courts have enforced the right of one party to a contract to impose dispute resolution on the economically weaker party through an adhesive contract clause. Thus, a single disputant can unilaterally design and administer a dispute resolution system for cases to which it is a party.

            What happens to justice when different players control the design of a dispute system? Are there differences across dispute system designs in procedural or substantive justice? Are there differences in the nature of the cases, processes, decision standards, discovery, or available damages? Are there differences in which parties can access the system, when, and where? What is the impact of dispute system design, and control over it, upon justice? How do we compare these systems to the traditional justice systems? Is a systematic empirical comparison possible? Is it desirable as a matter of public policy?

This class will investigate literature that defines justice for purposes of dispute systems from the disciplines of philosophy, law, and social science. It will examine not only distributive or substantive and procedural justice, but also theories from organizational behavior such as interactional, informational, and interpersonal justice, and theories from sociology and anthropology concerning differences in justice across individualistic and collectivist cultures. It will examine the theory and practice of dispute system design, and identify the elements that can vary across dispute systems. Finally it will explore the impact of varying design choices in a dispute system on dispute processing, the perceptions and experience of disputants, and ultimately, justice.

Readings and Required Text:

Tricia S. Jones (Editor), Conflict Resolution in the Field: Assessing the Past, Charting the Future, Conflict Resolution Quarterly, Volume 22, Number 1-2. San Francisco, CA: Jossey-Bass Publishers (2004).

Course packets of additional readings will be available from the Bookstore.

NOTICE: Please consider this syllabus to be in draft form and subject to revision. This is a new course, and I may need to adapt things depending on our progress through the material.

Graded Assignments:

Your grade will be based upon three components:

1. Class participation. This will represent six (6) percent of your grade.

2. Write three reflections on the reading, each one-page: long. Over the course of the semester, select a reading upon which to reflect in writing. Apply the contents of that reading to a particular dispute system design or conflict resolution context or based on your experience. Share your thoughts with the class. These will represent three (3) percent each for a total of nine (9) percent of your grade.

• The first reflection paper is due Tuesday, January 30.
• The second is due Tuesday, February 20.
• The final one is due Tuesday, March 27.

3. A mid-term examination: This will be anonymously graded and represent 50 percent of your grade.

4. A final research paper (10-15 pages double-spaced) on a topic of your choice approved in advance and oral presentation on your paper to the class: This will represent 35 percent of your grade. Your paper may take the form of a research paper or a project. For example, you can document a particular local dispute system design through field research and critique it in light of the literature we read in class.

Weekly Topics and Reading Assignments:

Week 1: January 16

Tuesday: Introduction to Dispute System Design (DSD): Naming, Blaming, and Claiming; ADR Processes, DSD Elements

• Felstiner, William L. F., Abel, Richard L., and Sarat, Austin. The Emergence and Transformation of Disputes: Naming, Blaming, Claiming.... 15 Law and Society Review 631-654 (1980/81).
• Bingham, Lisa B. and Nabatchi, Tina. (2003). "Dispute System Design in Organizations." In William J. Pammer, Jr. and Jerri Killian, eds., The Handbook of Conflict Management, 105-127. New York: Marcel-Dekker.
• Plapinger, Elizabeth and Stienstra, Donna. ADR and Settlement in the Federal District Courts: A Sourcebook for Judges and Lawyers, pages 1-12 and 59-69. Washington, DC: The Federal Judicial Center and The CPR Institute (1996).
• Exercise: Definitions of Justice

Week 2:  January 22-23

Monday: DSD in Labor Relations as the Model System

• Bingham, L. B. and Chachere, D. R. “Dispute Resolution in Employment:  The Need for Research”.  In Eaton, A. E. and Keefe, J.  H. (eds.), 1999 Industrial Relations Research Association Research Volume: Employment Dispute Resolution and Worker Rights in the Changing Workplace, 95-135.  Champaign, IL: Industrial Relations Research Association (1999)

Tuesday: Repeat Players

• Galanter, Marc. Why the “Haves” Come out Ahead: Speculations on the Limits of Legal Change. Law & Society Review, Vol. 9, No. 1, Litigation and Dispute Processing: Part One (Autumn 1974), pp. 95-160 (you can skip the footnotes).
• Carrie Menkel-Meadow, Do the "Haves" Come out Ahead in Alternative Judicial Systems?: Repeat Players in ADR, 15 Ohio St. J. on Disp. Resol. 19-61 (1999). In Lexis format, just read the first 18 pages and the footnote pages are optional.

Week 3: January 29-30

Monday: Control over DSD: One, Two, and Third-Party Designs

• Bingham, L. B. Why Suppose? Let’s Find Out: A Public Policy Research Program on Dispute Resolution. Journal of Dispute Resolution, Vol. 2002(1), 101-126 (2002).
• Bingham, L. B. (2004). Control over Dispute System Design and Mandatory Commercial Arbitration. Law and Contemporary Problems, Vol. 67(1&2): 221-251.

Tuesday: Third Party Designs: DSD in Civil Litigation the State and Federal Courts using Mediation and Arbitration

• Deborah R. Hensler, Suppose It's Not True: Challenging Mediation Ideology, 2002 J. Disp. Resol. 81-99 (2002)

• John Lande, Using Dispute System Design Methods to Promote Good-Faith Participation in Court-Connected Mediation Programs. 50 UCLA L. Rev. 69-139 (2002). In the Lexis printout, read the first 36 pages and skip footnotes at the end.
• Wissler, Roselle, The Effectiveness of Court-connected Dispute Resolution in Civil Cases. Conflict Resolution Quarterly Special Issue Conflict Resolution Quarterly Special Issue, Vol. 22(1-2), pp. 55-87 (2004).

Week 4: February 5-6, 8

Monday: Justice in Jurisprudence

• Richard A. Posner, The Problems of Jurisprudence, Chapter 11 and a portion of Chapter 12: 313-62. Cambridge, MA: Harvard University Press (1990).

Tuesday: More Justice in Jurisprudence 

• Rawls, John. A Theory of Justice, Chapter 2: 54-117.  Cambridge, MA: The Belknap Press of Harvard University (1971).

Week 5: February 12-13

Monday: Justice in Social Science

• E. Allan Lind and Tom R. Tyler, The Social Psychology of Procedural Justice pp. 7-40 and 221-242 (1988).

• Robert J. MacCoun, Voice, Control, and Belonging: The Double-edged Sword of Procedural Fairness. Annual Review of Law and Social Science Vol. 1, 35 pages (2005).

Tuesday: Compared to What? Macrojustice and Microjustice: Empirical Approaches to Evaluating ADR

• David Lipsky, Ronald Seeber, and Richard Fincher, Emerging Systems for Managing Workplace Conflict, pp. 263-295. San Francisco, CA: Jossey-Bass (2003). This is a very light read.
• Marc Galanter  & Mia Cahill, SYMPOSIUM ON CIVIL JUSTICE REFORM: "Most Cases Settle": Judicial Promotion and Regulation of Settlements, 46 Stan. L. Rev. 1339-1391 (1994). Skip the footnotes, and in the Lexis printout, read first 41 pages.
• Lind, et al. In the Eye of the Beholder: Tort Litigants’ Evaluations of Their Experiences in the Civil Justice System. Law & Society Review, Vol. 24, No. 4,  pp. 953-996 (1990).

Week 6: February 20

Tuesday: DSD and Employment Law: Arbitration

• Bingham, L. B. McGeorge Symposium on Arbitration: On Repeat Players, Adhesive Contracts, and the Use of Statistics in Judicial Review of Arbitration Awards. McGeorge Law Review, Vol. 29(2), 223-260 (1998).
• The Due Process Protocol for Mediation and Arbitration of Employment Disputes (www.adr.org.)

Week 7: February 26-27

Monday: DSD and Employment Law: Mediation

• Bingham, Lisa B. Mediation at Work: Transforming Workplace Conflict at the United States Postal Service, 5-35. Arlington, VA: IBM Center for the Business of Government (October 2003).
• EEOC (website materials)

Tuesday: Efforts to Regulate or Self-regulate to Protect Justice

• Nancy A. Welsh, The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization? 6 Harv. Negotiation L. Rev. 1-94 (2001). Read first 46 pages in Lexis printout and skip footnotes.
• Richard C. Reuben, Public Justice: Toward a State Action Theory of Alternative Dispute Resolution, 85 Calif. L. Rev. 577-641 (1997). In Lexis printout, read first 33 pages and skip footnotes.

• The Consumer Protocol (www.adr.org.)
• The Health Care Protocol (www.adr.org).

Week 8: March 5-6

Monday: CATCH UP AND REVIEW

Tuesday: MIDTERM EXAM

Week 9: SPRING BREAK

Week 10: March 19-20

Monday: Justice and DSD in Family Courts

• Joan Kelly, Family Mediation: Is There Empirical Support for the Field? Conflict Resolution Quarterly Special Issue, Vol. 22(1-2), pp. 3-36 (2004).
• Donald T. Saposnek, The Future of the History of Family Mediation Research. Conflict Resolution Quarterly Special Issue, Vol. 22(1-2), pp. 37-53 (2004).

Tuesday: Justice and DSD in Community Mediation

• Timothy Hedeen, The Evolution and Evaluation of Community Mediation: Limited Research Suggests Unlimited Progress. Conflict Resolution Quarterly Special Issue, Vol. 22(1-2), pp. 101-133 (2004).
• Christine B. Harrington, Shadow Justice, 105-136. Westport, CT: Greenwood Press (1985).
• Freshman, Clark. The Promise and Perils of “Our” Justice: Psychological, Critical, and Economic Perspectives on Communities and Prejudices in Mediation. 6 Cardozo J. Conflict Resol. 1-18 (2004). Read first 11 pages in Lexis printout and skip footnotes.

Week 11: March 26-27

Monday: Family and Community in other cultures

• Laverne F. Hill, Comment: Family Group Conferencing: An Alternative Approach to the Placement of Alaska Native Children under the Indian Child Welfare Act. 22 Alaska L. Rev. 89-112 (2005). Read first 13 pages and skip footnotes in Lexis printout.

Tuesday: Justice and DSD in the Schools

• Nancy A. Welsh, Stepping Back Through the Looking Glass: Real Conversations with Real Disputants About Institutionalized Mediation and Its Value, 19 Ohio St. J. on Disp. Resol. 573-678 (2004). In Lexis printout, read first 56 pages of Lexis printout and skip footnotes.
• Tricia S. Jones, Conflict Resolution in Education: The Field, the Findings, and the Future. Conflict Resolution Quarterly Special Issue, Vol. 22(1-2), pp. 233-267 (2004).

Week 12: April 2-3, 6

Monday: Justice and DSD in Criminal Law: Restorative Justice

• Mark Umbreit, Robert B. Coates, and Betty Vos.,Victim-Offender Mediation: Three Decades of Practice and Research. Conflict Resolution Quarterly Special Issue, Vol. 22(1-2), pp. 279-303 (2004).

Tuesday: DSD and Justice for the Environment

• E. Franklin Dukes, What we Know about Environmental Conflict Resolution: An Analysis Based on Research. Conflict Resolution Quarterly Special Issue, Vol. 22(1-2), pp. 191-220 (2004).
• US Institute for Environmental Conflict Resolution, Policy Consensus Initiative Evaluation Project and skim reports and surveys to understand evaluation (www.ecr.gov/multiagency/program_eval.htm).
• www.policyconsensus.org: explore website and wealth of case studies on public policy and environmental conflict resolution

Friday: Cultural and Demographic Differences in DSD

• William Bradford, Beyond Reparations: An American Indian Theory of Justice, 66 Ohio St. L.J. 1-104 (2005). Read 62 pages of Lexis printout and skip footnotes.
• Michelle Hermann, The Metro Court Study (3 pages)

Week 13: April 9-10

Monday: Truth and Reconciliation Commissions

• Website Materials from America’s first TRC: Greensboro, NC (http://greensborotrc.org/)
• Website Materials from South Africa (http://www.doj.gov.za/trc/trccom.htm)
• Jay Tidmarsh, Mass Tort Settlement Class Actions: Five Case Studies, pp. 1-31. Washington, DC: Federal Judicial Center (1998).
• Elizabeth Berkowitz, The Problematic Role of the Special Master: Undermining the Legitimacy of the September 11th Victim Compensation Fund, 24 Yale L. & Pol'y Rev. 1-41 (2006).

Tuesday: Comparative and International DSD

• Bingham, Lisa Blomgren. (2007). Governance and Conflict Resolution in A Global and Comparative Perspective. In Proceedings of KDI-World Bank Conference on Vision 2030. Seoul, South Korea: Korea Development Institute.

• International arbitration, website materials
• http://www.iccwbo.org
• http://www.sccinstitute.com/uk
• http://www.lcia-arbitration.com/
• http://www.kcab.or.kr/English/
• http://europa.eu.int/comm/justice_home/fsj/civil/dispute/fsj_civil_dispute_en.htm
• http://www.fipse.aed.org/grantshow.cfm?grantNumber=P116J030011
• DSD for nation states and the UN, website materials: http://www.un.org/aboutun/charter/chapter6.htm

Week 14: April 16-17

Monday: DSD and the Policy Process

• Bingham, L.B., Nabatchi, T., and O'Leary, R. (2005). The New Governance: Practices and Processes for Stakeholder and Citizen Participation in the Work of Government. Public Administration Review, Vol. 65(5), 547-558.
• www.adr.gov
• www.thataway.org

Tuesday: Paper presentations

Week 15: April 23-24

Monday: Paper presentations continued

Tuesday: Concluding lecture and discussion

Final Papers Due May 1, 2007.

Copyright 2007 Lisa Blomgren Bingham. Teachers are free to copy these materials for educational use in their courses only, provided that appropriate acknowledgment of the author is made. For permission to use these materials for any other purpose, contact the author.