Imagine you are on a
planet with no atmosphere. Much like our
moon, there may be great mountains, stunning vistas, sweeping plains, and more
beauty than you could ever imagine. But
with no atmosphere, your experience can never be complete because you are
shielded by a spacesuit.
Sometimes courts can similarly shield their users from experiences that would enhance the user's court experience. Court processes and services are designed to be fair and just, but there is also a need to process cases efficiently. Because of this focus on addressing as many matters as possible in a short amount of time, paired with assumptions that users know how to handle the matters they are there to address and an avoidance of giving legal advice, the court can deprive users of a true sense of what they are going through.
In
an effort to remedy that, procedural justice is fast becoming a guiding
principal to improve court services.
Court employees continuously think in terms of “procedure” and
“justice,” and so the idea that they would implement
procedural justice seems redundant.
However, in practice, procedural justice has very little to do with
procedure or justice and, in some ways, is contrary to the way we traditionally
view the role of courts and court employees.
Procedural
justice refers to the way people perceive
the process rather than the process itself.
Studies show that people are more likely to comply with results they do
not like or agree with if they feel the manner in which those results were
achieved was fair. And the most
important determinants of whether a person perceives the process as fair are
the people who conduct the process.
Thus,
even with all the coercive tools available in the judicial system to ensure
people participate in the process (e.g., subpoenas) or abide by their orders,
the most important tool may be court employees.
Procedural
justice is important at every step in the process, not just in the
courtroom. From the first contact with a
person while entering the courthouse until the issue is resolved, courts are
being judged on whether the process is fair.
If courts succeed, the people using the court will accept their
responsibilities even if they disagree with the end result. If courts fail, the process could be longer
and require more work postjudgment.
Procedural
justice relies on four basic principles, which often overlap:
·
The person must have a voice in the process;
·
The person must feel that the process is neutral;
·
The person must feel respected in the process,
and;
·
The person must understand the rules by
which decisions are made.
Voice.
Voice means the opportunity to have input in the decision. It is not enough merely to have the right to
speak. Rather, people must have an
opportunity to tell their story in their own words and have a say in what they
feel the outcome should be. Voice
applies as much at the counter as in the courtroom. As part of feeling they have a voice, it is
important that people know that the person they are speaking to is sincerely
listening and understanding what they are saying. For that reason, it is often useful to repeat
back to the person what it is that you hear.
In light of other principles in procedural justice, the response should
not put a positive or negative value on the person’s words; rather, a simple
“what I hear you saying is…” will suffice.
Neutrality. Neutrality is having
principled decision-makers who make decisions based upon rules and not personal
opinions. They must apply the rules
consistently. The easiest way to
demonstrate neutrality is to be transparent and open about how the rules are
being applied and how decisions are being made.
This may require a little extra time to explain what the rule is. It is also useful to be sure to treat all
people the same. Being on a first name
basis with the local attorneys while treating the self-represented with a
generic “you” can send a signal that there are insiders and outsiders and raise
questions concerning the neutrality of court staff.
Respect. Demonstrate respect by
affirming to people that they are viewed as important and valuable and that
both they and their problems are taken seriously. If a judge or hearing officer is running
late, an explanation and apology may be in order. Thanking people for doing something – even if
we expect them to do it – will go a long way toward showing that we regard
people as important. Often people come
into a court setting confused about how cases are handled. Providing information about what to do, where
to go, when to appear, and what will happen next demonstrates respect for them
and for their right to have their problems handled fairly. Although court employees worry about giving
legal advice, information of a kind that explains what a person might
experience is far different from telling a person how to conduct litigation.
Understanding.
Understanding (or trust as it is sometimes called) is cultivated by
clearly describing the rules in how a decision is made. It is not enough to accept or refuse to
accept a filing or to hold a hearing and make a decision. Court users need to understand why, what
rules were applied, and what went into the decision. Simply explaining what is happening and then
demonstrating that the result was reached through that process develops trust
in the process. It is vital to trust and
understanding that courts and their employees avoid using confusing language or
jargon. Jargon, in particular, leaves the impression that there are rules that
only an insider understands.
Here are a few ways
to deliver services that satisfy procedural justice principles:
• Create
brochures or websites to help people understand where to go, what to do, and
what the rules are;
• Be sincere and caring. Have empathy for the person using court
services;
•
Listen,
and demonstrate you are doing so, by repeating back key concepts. Ask if you understood correctly;
•
Explain
why you are doing what you are doing;
•
Apply
rules consistently, both personally and within the office;
•
Explain
what is happening and explain how the result follows from it;
•
Say
please and thank you – often;
•
Use
signs and help desks;
•
Tell
people what to expect in terms of events, time, and outcome;
•
Use
plain English; and
•
Avoid
acronyms.
Every day,
Michigan's courts and their staffs work hard to make fair decisions that impact
many lives. It would be a terrible misfortune if any of those people receive a
fair decision and are not able to appreciate the atmosphere of justice in which
it was delivered. Please feel free to share some of the ways your office is
using procedural justice to get better outcomes and serve the public better and
we may highlight them in future issues of Connections. You may contact me at cappss@courts.mi.gov or 517-373-5975.
[Ed. Note: This article is reprinted with permission from the Friend of the Court Bureau's Newsletter The Pundit, Volume 32, No. 1, March 2017, with some edits.]