To Achieve Justice in Peace, Hear the Other Side
Procedural justice theory argues that people will accept outcomes based on the fairness of the mediation or peacemaking process. Many studies have confirmed that when decisions are fairly made, people are more willing to accept them voluntarily. Procedural justice has been found to have an especially important role in keeping agreements. One group of researchers studied the factors that led to performance of mediation agreements. They found that the procedural fairness of the initial mediation session was the central cause for people adhering to the agreement 6 months later. Thus, the fairness of the peacemaking process is just as, if not more, important that the outcome itself.
Two explanations have been proposed to describe the importance of procedural justice. One develops from the idea that people want control over the decisions determining their disputes. By having influence over decisions concerning their fight or conflict, people have some assurance that the outcome will be fair to them. The reality is that people do not have direct control over judges, juries and arbitrators. In mediation or peacemaking, however, the parties have complete control over the process. The mediator or peacemaker is a process manager, but is not making decisions. This process control is very important because it provides a sense of justice necessary to sound, lasting agreements.
A field study of court-annexed arbitration procedures found that people expressing unfairness felt they had too little opportunity to tell their story. The ability to control the process increased the parties' sense of justice even when the decision maker was seen as biased, when he or she was seen as acting in bad faith, and when the outcomes were important. The only sense of injustice arose when the decision-maker did not appear to give consideration to the parties ’ views. In other words, the decision-maker must be seen as giving due consideration to the views expressed, even if he or she is not influenced by those views. The opportunity to tell one’s side of the story is a potent factor in feeling that justice has been served. Mediators and peacemakers must therefore allow stories to be told. Most importantly, the people participating in the process must feel like they have been heard.
People are remarkably sensitive to the politeness and dignity they experience with mediators and peacemakers. Respect signifies status within a group. Consequently, people want to be accorded equal status in disputes and conflicts. When they are not treated politely or with dignity, people will complain of injustice.
Finally, trustworthiness influences judgments about procedural fairness. Group members wish to understand the underlying motivations of peacemakers, so that future behavior can be predicted. For this reason, trust is a key component of legitimacy. Trust involves questions of security, that is, people’s efforts to predict how the peacemaker will act in the future. Ethical trust is far more important than trust in the peacemaker's competence.
One fundamental rule for achieving justice in peacemaking is audi alteram partem “Hear the other side.”
Each conflict presents its own challenges and measures of justice. Thus, no objective measure of justice is possible or desirable; instead, justice is ephemeral and subjective. Justice is what a person feels is fair to him or her. In peacemaking, we strive for each party to be dealt with as much objective fairness as possible. We want each party to have the opportunity to feel that justice was achieved. We should be deeply concerned whenever a party in a peacemaking process feels injustice at the hands of the peacemaker.
When dealing with injustices arising from the conflict, peacemakers should keep in mind the slippery nature of justice. By understanding the theories of justice, peacemakers can help parties articulate their feelings of injustice. One possibility is to encourage parties to talk about their notions of justice. People can be engaged to discuss justice in terms of fairness and equal treatment. Oftentimes, a strong sense of injustice will be intertwined with identity issues, such as loss of face and disrespect. Once stated explicitly, the injustices can more easily be separated, respected, and processed appropriately.
Finally, justice implies a different perspective for lawyer peacemakers than is normally held by lawyers in general. In peacemaking, the perception of substantive justice, being treated fairly and equally, is as important as procedural justice. Lawyer peacemakers cannot easily shrug off a compromise settlement that ends a lawsuit, but does not address deeper injustices. This is especially true when the parties will have a future relationship. Thus, the responsibility to assure that the parties are experiencing justice in the peacemaking process is much greater than found in traditional lawyering.