Evaluating Dispute System Design: Forms of Justice as Measures of Accountability and Impact Lisa Blomgren Amsler (formerly Bingham) Keller-Runden Professor of Public Service Indiana University School of Public and Environmental Affairs Bloomington, IN

Overview Big Picture: Dispute System Design (DSD) Political Economy: Institutional Analysis and Development (IAD) Public Administration: Accountability and Performance Measurement Psychology, Philosophy, Jurisprudence: Varieties Of Justice Nightmare of Accountability: Ferguson Conclusion

Dispute System Design (DSD) Origins Integrative Negotiation (Mary Parker Follett 1918) Interest-based Negotiation (Fisher & Ury, 1981; Fisher, Ury, and Patton 1991) DSD Origins: Interests, Rights, Power in Collective Bargaining (Ury, Brett, & Goldberg 1988) In Organizational Development (Costantino & Merchant 1996) In Fortune 1000 (Lipsky, Seeber, & Fincher 2003) In Law and Courts (Rogers, Bordone, Sander, & McEwen 2013) In Private and Public Systems (Amsler, Martinez, and Smith 2016 forthcoming)

IAD and Cooperative Governance in Political Economy Institutional Analysis and Development 7 categories: 1.participants (individual or corporate) 2.their positions or roles 3.potential outcomes 4.allowable actions and the outcome function 5.individual control over this function 6.information available to participants about actions and outcomes, and 7.costs and benefits (incentives, deterrents) Elinor Ostrom (1990, 2000, 2005, 2011)

DSD Analytic Framework (Smith and Martinez, 2009) Goals Stakeholders Context and Culture Processes and Structure Resources Success and Accountability (adding context and culture, Amsler, Martinez, Smith, under contract Stanford University Press)

Collaborative Governance: Voice and DSD across the Policy Continuum Upstream in the Policy Continuum Legislative and Quasi-legislative Action Making policy Midstream Executive Implementing Policy Downstream Quasi-judicial Judicial Enforcing Policy Bingham, 2005, 2009, 2010

Upstream Midstream Downstream Dialogue and Deliberation Alternative Dispute Resolution Dialogue and Deliberation Collaborative Networks Public Policy ADR Legislative Quasi-legislative Making policy Executive Implementing Policy Quasi-judicial Enforcing Policy Judicial British Columbia -- Citizens Assembly Deliberative Polling Participatory Budgeting Choice Work Dialogue Study Circles Public Conversations Citizen Juries Consensus Conferences Participatory Budgeting Negotiated Rulemaking US Institute for Environmental Conflict Resolution Collaborative Public Management -- Watershed networks LA Neighborhood Councils Mediation & facilitation in lieu of agency adjudication and civil enforcement --EEOC, USPS, EPA Advisory and binding arbitration at FDIC, EPA Court-connected ADR programs Private ADR providers Truth & Reconciliation Commissions

Accountability in Public Administration Accountability is the obligation of public servants to the public. Being called to account for one’s actions to carry out the public will and the various values it embodies. An instrument for a higher authority to exert control. Three key elements: Information provided by the accountable party Discussion between the accountable party and the oversight body The consequences for the accountable party. ( Brandsma and Schillemans 2013)

Accountability Frame for Analysis Dubnick and Frederickson (2009) and Dubnick and Yang (2011) Six Accountability Promises MEANS OR MECHANISMS: Three instrumental promises Control (inputs) Ethical behavior/choices (processes) Performance (outcomes). ENDS OR VIRTUES: Three intrinsic promises Integrity (inputs), Legitimacy (processes), and Justice (outcomes).

Means through Performance Measurement: Government Reporting and Results Act Requirements of GPRA: Strategic Planning, Annual Performance Plans, & Annual Performance Reports ALL REQUIRE USING PERFORMANCE MEASURES. GPRA Measure Requirements: Quantitative, Objective, Measurable Measurement Types Inputs: Resources consumed Outputs: Quantities produced Outcomes: Results

Can We Measure Accountability in DSD through Varieties of Justice? (incomplete list, Bingham ) 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 Can we measure the instrumental promise of performance using the intrinsic promise of justice in DSD?

Accountability as Intrinsic Promise of Justice: Examples US Department of Justice Agency Litigation & ADR Accountability using distributive justice finds no statistically significant difference in outcomes if AUSAs use ADR (Bingham et al. 2009a). USPS REDRESS Program: EEO Mediation Accountability using procedural justice (PJ) measures in voluntary mediation through exit surveys of employee and supervisor perceptions. Reported every six months for 12 years (Bingham et al. 2009b). US Occupational Safety and Health Review Admin. Accountability using PJ in surveys on DSD shows Repeat Players prefer mediation to adjudication with an ALJ.

The Nightmare Scenario: FERGUSON POLICE AND COURTS MEANS: MECHANISMSENDS: VIRTUES INPUTSCONTROL: POLICE CONTROL VIOLATIONS OF LAW, MINOR INFRACTIONS OF CODES INTEGRITY: POLICE ACT WITHIN THEIR TECHNICAL AUTHORITY BUT BIASED ENFORCEMENT PROCESSESETHICAL BEHAVIOR: ARRESTS BY POLICE AND CONTEMPT ENFORCEMENT BY MUNICIPAL COURT DEMOCRACY: UNDER- REPRESENTATION BY RACE IN ELECTED OFFICIALS AND POLICE HIRING; CONVICTIONS DISENFRANCHISE VOTERS OUTCOMESPERFORMANCE: COLLECTION OF REVENUE TO SUPPORT GOVT. WITH PERFORMANCE OF POLICE MEASURED BY CITY JUSTICE/EQUITY: SYSTEMIC PERVASIVE VIOLATION OF CIVIL RIGHTS AND RACISM DISCRIMINATION BY CLASS AND RACE

Implications of Accountability Frame for Research on DSD We need to use institutional design to build shared meaning. Babbling equilibrium, apples & oranges We need to incorporate accountability and performance measurement into DSD. We need transparency in how designs promote justice and which kind. We need to measure what impacts and justice a system produces.