Primer on Dispute System Design Janet Martinez 23 June 2018

Dispute System Design One or more processes adopted to prevent, manage or resolve a stream of disputes connected to an organization or institution

Array of Design Contexts Public and Community Justice Court ADR Claims Facilities Community [neighborhoods, restorative justice] Conflict and the Organization Commercial: vendors/suppliers, regulators Consumers Collective Bargaining; Employment Ombuds International/Transnational States as Contracting Parties to Treaties Cross-boundary Commerce Transitional Justice

Analytic Framework GOALS PROCESSES & STRUCTURE STAKEHOLDERS Which types of conflicts does the system seek to address? What does the system designer seek to accomplish? PROCESSES & STRUCTURE Which processes are used to prevent, manage and resolve disputes? If more than one process, are they linked or integrated? What are the incentives and disincentives for using the system? What is the system’s interaction with the formal legal system? STAKEHOLDERS Who are the stakeholders? What is their relative power? How are their interests represented in the system?

Framework - continued RESOURCES SUCCESS & ACCOUNTABILITY What financial resources support the system? What human resources support the system SUCCESS & ACCOUNTABILITY How transparent is the system? Does it include an evaluation component? Is the system successful? CONTEXT & CULTURE How does the context affect its viability and success? What aspects of culture (organizational, social, national) affect the working of the system?

Possible Goals Prevent/manage/resolve Substantive outcome Efficiency/resource saving for institution and user Reputation Relationships Compliance Safety Satisfaction Public recognition Organizational improvement

Conceptions of Justice Outcomes Substantive, Distributive, Utilitarian, & Social Justice Voice and Process Control Procedural Justice Organizations Organizational, Interactional, Informational, & Interpersonal Justice Community Corrective, Retributive, Deterrent, Restorative, Transitional, Communitarian, Communicative Justice

Example: Claims Resolution Facilities Trigger Asbestos, oil spill or other tort Natural disaster Terrorist [September 11] Process Control Court, congress/parliament, special master Process Choice Fact finding Establish liability Allocation of compensation Mediate, arbitrate

Commercial: European Directive Over past 20 years EU emphasized use of alternative dispute resolution (ADR) processes to improve access to justice Commission’s 2002 Green Paper made ADR a political priority Diverse civil litigation experience across Europe 2008 Mediation Directive implemented May 2011, to cover civil, cross-border disputes (but may apply internally as well)

Example: Online dispute resolution (“ODR”) What is ODR? The use of information and communication technology to help parties prevent, manage, and resolve disputes What are current examples? Ecommerce Public disputes Administrative Tribunals Courts Cross-border UNCITRAL WG III: Technical Notes on ODR; EU Directive

Overview of Ethics in DSD What are Ethics? Norms? Guidelines? Best Practice? Ethics for Whom? Individual designer/provider organization Internal/External Individual/Team U.S./international Professional affiliations [lawyers who design?] Ethics When? Prevent, manage, resolve Phase: Assessment, Design, Implementation, Evaluation