At the Intersection of Justice and Winning
While our brothers and sisters (at least one of whom, Omar Kahdr, was fifteen years old when first imprisoned) continue to suffer agonies beyond imagining at the off-shore U.S. gulag at Guantanamo, I decided to conduct an extremely unscientific survey at the intersection of Justice and Winning.
Before discussing some of those survey results (deadline extended -- take the survey NOW!) I remind my readers of the differences between distributive justice ("how much of the pie should I fairly get") and procedural justice ("how is my share of the pie fairly determined?"). See my earlier post on the several kinds of justice that scholars of dispute resolution study here.
Would We Rather Have Justice or a Bigger Piece of Pie?
One of the survey's goals is to find out what attorneys and mediators believe they would rather have --most of the pie or a fair means of dividing it.
Responses on this topic continue to run neck and neck. If forced to choose between winning in an unfair process or losing in a fair one, 53% of our mediators and attorneys would choose winning over fairness.
What Our Respondents Think Justice Is
What do our respondents mean when they use the terms "fair" or "just"? The survey permits a limited, but telling, range of "justice" options. Our respondents were asked to check as many of the "following factors that indicate . . . the negotiation or mediation process was 'fair' or 'just.'"
I list here only those that received more than 50% of the "vote."
The mediator
"listened carefully to all parties" . . . . . . . . . . . . 91%
"appeared to understand party positions" . . . .84%
"appeared to understand party needs" . . . . . . 84%
"was impartial" . . . . . . . . . . . . . . . . . . . . . . . . . . . 83%
"suggested resolution options impartially" . . . 69%
The parties
"listened to one another" . . . . . . . . . . . . . . . . . . .66%
"were honest in what they disclosed" . . . . . . . . 64%
"understood one another" . . . . . . . . . . . . . . . . . . 53%
To sum up, more than fifty percent of the (primarily mediator) respondents, if forced to choose, would rather "win" than have an attentive impartial mediator who understood party positions and needs and suggested resolution options impartially.
More troublingly, if the choice comes down to winning or losing, most of our respondents would prefer to be dishonest or to have dishonesty mar the proceedings, than to honestly lose.
Think Locally, Act Globally
This is no idle survey. When casting my own vote, I forced myself to think about how I really behave "locally" as opposed to the way I think I should behave. If the cashier gives me more change than I deserve, I always give it back. But if I don't discover her error until I get home, I'm unlikely to drive back.
If we can extrapolate from this "local" practice, I am honest when it is convenient to be so and not so much when it is not.
Which likely explains why a country of laws and, more particularly, why we as lawyers, have let the Guantanamo situation exist and persist. It's not because we don't care. It's because we're busy.
Nor do I think that if any of us thought about it longer than it takes to fill out a survey, we would jettison procedural fairness for a result that is best for ourselves (be it the largest slice of the pie or the illusion of safety in a dangerous world).
Which takes us full circle to the pained recognition that we have allowed injustice to flourish at Guantanamo and elswhere on our watch.
Now what? I recently said to someone, "I feel like standing naked in front of the White House with my hair on fire demanding representation and a fair process for the detainees. But because I blog, I'm blogging about it."
It's a start. But it's not enough.
What do YOU think we should be doing?
