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The Negotiator’s Role within a Dispute System Design:
Justice and Accountability
Lisa Blomgren Amsler
Editors’ Note: To many who are frustrated with ill-organized, expensive, catch-as-catch-can approaches to handling entirely predictable conflict, dispute system design has seemed a logical, socially productive way of planning to reduce the costs of conflict, and effectuating justice on a larger scale. Amsler shows how this is not always the case, beginning with an analysis of how Boston lawyers on all sides effectively conspired to keep the pattern and practice of abuse of children in the Roman Catholic Church quiet for decades. This was a system at work—there is no denying it. Thus questions of justice and accountability rise at the outset when analyzing or, even more important, planning any dispute resolution system. Amsler lays out the criteria and makes proposals for how to design and effectuate a system that is not only systematic, but requires justice.
Negotiators need to understand the institutional context within which they work. These institutions will vary widely; analyzing them involves the field of dispute system design (DSD). Negotiators have an opportunity to take a system apart, critique it, and make the system accountable. In fact, their failure to do this was the subject of a recent movie, “Spotlight,” about the Boston Globe team of journalists whose reporting took apart the system the Roman Catholic Archdiocese put in place to protect priests who engaged in sexual abuse of children in their parish. The Globe reporters described a DSD in the shadow of the formal justice system, in which lawyers on both sides negotiated settlements to hide all evidence of the abuse and ensure there were no public court records that would demonstrate the pattern and practice of transferring priests repeatedly from one parish to another. As negotiators, lawyers for both sides knowingly participated in this system, rationalized their participation through lawyer codes of ethics that require attorney-client confidentiality, and got paid for doing it.
How can negotiators play a role in making systems accountable? How do we define and measure accountability for DSD? This chapter will encourage the use of lateral thinking by crossing several different silos of scholarly work in law, political science, public administration, psychology, and philosophy. It discusses how negotiators should approach DSD, both for public institutions in governance and private sector institutions in the shadow of the law. It introduces DSD, its history, and a related research area, Institutional Analysis and Development (IAD). It introduces accountability and performance measurement from public administration. It explores how we might apply concepts of justice from psychology, philosophy, and jurisprudence to measure accountability.
It will then examine the negotiator’s role in accountability in three different DSDs, involving forced or mandatory arbitration, systematic suppression of evidence of sexual abuse by priests of minors in “Spotlight,” and Ferguson, Missouri’s systemically racist DSD in the local criminal justice system of police and courts. As negotiators, we need transparency in how DSDs promote justice; we need to build accountability and performance measurement into DSD; and we need to take responsibility for helping to ensure that these systems are accountable to the people who use them and to the public.
DSD Applied to Governance: Voice Across the Policy Continuum
Negotiators can use DSD in a much broader array of settings than originally conceived; they can use it at different points for “voice” from stakeholders or the public across the entire policy process. The policy process is like a stream, running from headwaters upstream in legislation downstream to adjudication of conflicts. DSD applies across this policy continuum (Bingham 2009a) whenever institutions design and provide opportunities for voice (Bingham, Nabatchi and O’Leary 2005; Bingham 2010). For example, DSD applies upstream in the legislative or quasi-legislative process for making policy when sponsors design opportunities for public engagement, dialogue, and deliberation. It applies midstream in the executive branch when administrative agencies implement policy through collaborative or network public management (e.g. disaster management) and forms of dispute resolution (e.g. environmental mediation). This view of DSD’s range is broader than....
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