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Why Care About What People Want From the
Legal System?
45 Am. J. Comp. L. 871
American Journal of Comparative Law
Fall 1997
There are several reasons for a subjective
psychological analysis which focuses on people's
feelings about law and the legal system. The first is
political. As Sarat notes “it would be strange,
indeed, to call a legal system democratic if its
procedures and operations were greatly at odds with
the values, preferences, or desires of the citizens
*872 over a long period of time. Yet, there is
evidence of a public “crisis of confidence” in the
legal system.
Symposium
Civil Procedure Reform in Comparative Context
*871 CITIZEN DISCONTENT WITH LEGAL
PROCEDURES: A SOCIAL SCIENCE
PERSPECTIVE ON CIVIL PROCEDURE
REFORM
Recent public opinion polls provide evidence
that dissatisfaction with the legal system is
widespread and that the public generally holds
lawyers and judges in low regard. Studies of the
courts indicate that large proportions of the
American public indicate low levels of confidence
in legal authorities. For example, during the period
1972 to 1987 only 30-40% of Americans were
found to express “a great deal of confidence in the
Supreme Court as an institution of government”
(National Opinion Research center, General Social
Survey).
Tom R. Tyler [FNa1]
Copyright (c) 1997 American Society of
Comparative Law, Inc.; Tom R. Tyler
During the past several decades there has been
an increase in research exploring the subjective
evaluations of those people who deal with the legal
system. Those public evaluations are understood
through interviews with people who have dealt with
police officers, judges, and other types of legal
authorities. While judges and lawyers often conduct
informal interviews with jurors or clients after their
experiences with the legal system (see, for example,
Woolf, 1996), this analysis draws upon the more
systematic research conducted by social scientists
for information about people's feelings about their
experiences in court or with the police and to
explore the role of those judgments in shaping
people's reactions to their experiences with the legal
system.
Further, on the local level, the public is found to
express widespread dissatisfaction with local courts,
in particular the criminal courts (Sarat, 1977; Tyler,
1990). For example, national surveys indicate that
between 1970 and 1990 around 80% of adult
Americans indicated that the courts are “too lenient”
on criminals. The public faults the courts on a
variety of grounds, including the failure to control
crime, too much leniency, letting too many
criminals escape on “technicalities”, making too
many erroneous judgments, and giving defendants
too many rights (e.g., the exclusionary rule). While
these grievances are directed at issues of criminal
law, there is no evidence that the public
distinguishes the handling of criminal and civil
cases. Instead, the public has a generally negative
impression of the courts and the law.
Interviews with the public suggest that the
American justice system is currently suffering from
a crisis of public confidence. One source of this
public discontent is with dissatisfaction developing
out of people's personal experiences with the courts
and the law. This article reviews what is known
about the sources of public dissatisfaction (i.e.,
What does the public want from the courts?) and
suggests some ways that such dissatisfaction can be
mitigated. While America is not unique in having
public dissatisfaction with the justice system, most
of the research reviewed focuses upon the American
experience. However, that research which has been
conducted in other countries suggests that the
psychology of the litigant experience is similar
across cultures.
Issues of discontent with law and legal
authorities are not primarily or exclusively an
American issue. The question of how to create and
maintain a climate of legitimacy is central to the law
in all societies. For example, France (Lariviere,
1996) and England (Woolf, 1996) have established
legal procedures, but are also currently seeking
ways to deal with public discontent with their civil
and criminal justice systems. At the same time,
other societies, such as China (Cohen, 1996), are
trying to create legitimacy for their legal rules,
1
Both specific decisions and laws are difficult to
enforce using threats of punishment. In a recent
review of deterrence research on drug use, for
example, MacCoun (1993) suggests that at best 5%
of the variance in law-related behavior can be
explained by variations in the perceived certainty
and severity of punishment, a suggestion consistent
with the findings of recent panel studies on lawrelated behaviors, which show that deterrence
considerations have, at best, a minor influence on
behavior (see Paternoster, Saltzman, Waldo,
Chiricos, 1983; Paternoster, 1987). Despite
increasing police size, enhancing the penalties for
drug use, and filling American prisons with drug
offenders, the United States has been generally
unable to lessen drug use.
which exist on paper, but are seldom followed in
practice.
The Voluntary Acceptance of Judicial Decisions
The lack of public confidence in the legal
system is creating a number of problems for
lawyers, judges, and the legal system. The most
direct consequence is difficulty securing the
acceptance of legal decisions. Although the decision
by a judge following a trial or other judicial
proceeding is often thought of as closing a legal
question, in reality the parties to disputes often fail
to obey those decisions (McEwen and Maiman,
1981). This requires relitigation and potentially
coercive efforts to compel obedience. A recent
example of an especially problematic area of
compliance is child support payments. The courts
have had difficulty making child support decisions
which will actually be followed, primarily by
fathers. As a consequence, divorce*873 cases
frequently are not settled and there must be a series
of rehearings by the courts.
In the parallel case of drunk driving Ross
(1982) points out that the level of police
enforcement needed to bring the probability of
punishment to the level required to deter offenders
is prohibitively high. Hence, authorities must
depend on voluntary deference to their decisions by
most of the population, most of the time. Authorities
need for people to take the obligation to obey the
law onto themselves, and to voluntarily act on that
perceived obligation.
Beyond compliance with specific judicial
orders, it is important that people generally comply
with laws and legal regulations. Yet, there is also
widespread evidence of increasing disobedience
with law in everyday life (Tyler, 1990). In the area
of tax noncompliance, for example, belief in the
increasing frequency of underpayment is widespread
(Roth and Scholz, 1989; Roth, Scholz, and Witte,
1989).
Securing voluntary deference to judicial
decisions is especially difficult since disputants
typically go to third-party authorities only with
conflicts that have proven to be too difficult for
them to resolve *874 through bilateral discussions
and negotiations (Rubin, 1980; Thibaut and Walker,
1975). Hence, the legal system is usually presented
with conflicts in which the parties have the fewest
common interests and are in the greatest
disagreement. This makes it especially difficult to
give either or both parties what they want and feel
they deserve. Further, conflicts typically come to the
court after they have escalated and negative feelings
are very high (Rubin, 1980). Hence, courts are faced
with the problem of effectively resolving the most
difficult conflicts.
It is particularly important to the legal system to
not only obtain compliance, but to secure voluntary
compliance. This is the case because, while some
coersion is possible, the legal system relies heavily
on the voluntary cooperation of most of those who
appear before it. The legal system has at best limited
ability to compel people to obey the law and is
heavily dependent on widespread voluntary
cooperation with judicial directives.
In cases of widespread disobedience with court
orders, as has recently occurred in the United States
with child support payment orders, the courts have
had difficulty securing compliance through
threatening or using punishments. Similarly, in the
cases handled in small-claims courts, cases
involving landlord-tenant disputes, conflicts among
neighbors, nonpayment of bills to businesses for
products or services, consumer dissatisfaction with
products or services, and other minor disputes,
noncompliance is widespread.
All of these factors point to the importance of
creating decisions which disputants are willing to
voluntarily accept and to obey. Hence, public
dissatisfaction and distrust is particularly troubling,
since people are less likely to defer to decisions
made by authorities whom they do not respect.
Broader Policy Implications
Dissatisfaction with the legal system is also
having broader policy consequences. One such
consequence is increasing public support for citizens
2
who take the law into their own hands. Robinson
and Darley (1995) recently studied the relationship
between the written law and public views about
appropriate penalties for various types of crimes.
One important area of discrepancy revealed by their
work is citizen response to vigilante actions.
Citizens are very forgiving of those who take the
law into their own hands, since they feel that the law
is not working, so citizens are not to be blamed for
acting in their own defense.
civil justice system, in contrast, makes much less
use of juries and gives greater power to judges. That
procedural choice reflects a greater concern with
efficiency and a greater willingness to trust elites to
make legal decisions (Lariviere, 1996). In other
words, the form of the trial is not only dictated by
concerns about “truth” or “justice” in particular
cases, it is also influenced by the larger political and
social concerns of particular societies. These
concerns include issues of societal goals and social
values (Chase, 1996), as well as a particular political
and legal history.
A second consequence of public dissatisfaction
is an effort to take authority away from the legal
system. A recent example of such an effort in
California is the “three strikes and you are out”
initiative. While often noted as an example of public
punitiveness, the initiative is also an effort to limit
judicial discretion since, under the initiative, judges
have no flexibility in sentencing. This constraining
of judicial flexibility is hardly an isolated instance,
since one of the major changes in sentencing
procedure during the past decade has been the
development of various forms of sentencing
guidelines.
Dealing with the Problems of the Legal System
Sources of public dissatisfaction
The first issue raised in this analysis of court
problems is the source of public dissatisfaction. One
clear source of public dissatisfaction is personal
experience with the courts, as a plaintiff, defendant,
or juror. Studies show that those with greater
personal experience with the courts hold more
negative attitudes (Sarat, 1977).
Of course, we are not only concerned with
people's attitudes about legal authorities and their
decisions because those attitudes influence
compliance behavior and their policy positions.
People's attitudes are also important because, to the
extent possible, legal decisions should be based on a
consensus of the parties to the dispute about what is
just. People should be able to willingly embrace the
solutions reached in legal proceedings. They should
want to accept those solutions. In other words,
justice does not flow only from the interpretation of
legal doctrines by legal scholars, judges, and/or
philosophers, who tell people what is a just solution
to their problems. It *875 also develops from the
concerns, needs, and values of the people who bring
their problems to the legal system. In this sense, the
parties to a dispute “own” the dispute and should be
involved in its resolution. While the legal system
and society more generally have legitimate interests
in the interactions of citizens, those interests do not
preclude concern about the values of the disputants.
Why does personal experience lead to
dissatisfaction? One argument is that such a finding
is inevitable. After all, the courts must resolve the
most difficult problems. Most disputes are resolved
by the parties themselves and only those cases
involving anger, intractable problems, or both end
up before judges and mediators. Hence, authorities
are constantly faced with the most difficult cases.
Further, the administrative problems of the courts
lead to delays in reaching settlements, and litigation
is usually unexpectedly costly to the parties
involved. In such a situation, it is seldom possible to
give both parties what they want or feel they
deserve. Dissatisfaction may, therefore, be
inevitable.
Despite these realities dissatisfaction is not
inevitable. On the contrary, there are a number of
actions which legal authorities can take which will
increase their respect in the eyes of the public.
Further,*876 those actions are consistent with the
effective handling of legal disputes. Legal
authorities can both do their jobs well and create
public satisfaction. The key is to have a clear
understanding of what people want from the courts.
In fact, historically the concerns of the public
have had an important role in shaping the
development of legal institutions and procedures. In
the case of the United States, the form of the
American jury, for example, differs substantially
from European juries in ways that are shaped by the
American political climate. For example, the
widespread use of juries and the use of a unanimous
verdict rule reflect the fear that Americans have of
giving power to legal elites (i.e. judges). The French
Providing Access to Justice: Procedural
Preferences for the Resolution of Disputes
The first issue involved in knowing what people
want from the courts is to examine people's
3
preferences concerning how disputes should be
resolved. Legal authorities recognize that one
important aspect of dispute resolution behavior
involves providing people with timely and
affordable opportunities to resolve problems. From
this perspective there has been considerable concern
within the legal community about the costs of and
delays associated with the resolution of legal
disputes via formal judicial procedures such as trials
(Burger, 1982). These concerns arise from the belief
that part of the responsibility of the legal community
is to provide citizens with reasonable dispute
resolution opportunities. Reasonable opportunities
are both affordable and timely. For example, court
delays of two or three years have not been unusual
in urban courts. Such delays deny the parties to a
dispute any opportunity for the timely resolution of
their cases within the legal system.
frivolous rejection of demands for trials, such
programs typically include some type of penalty for
those whose trial outcomes are not greater than the
proposed settlement. Hence, such programs might
more properly be labeled court-annexed mediation
programs, with court supported incentives for
accepting mediation solutions.
Although inspired by concerns about providing
timely justice for citizens, the move toward informal
legal procedures may create a dilemma for lawyers
and judges? This dilemma flows from discrepancies
in the evaluation of informal legal procedures on the
objective and subjective levels. One possible
standard for evaluating civil procedures is the
objective quality of the decisions reached. On this
level legal scholars have voiced concerns about the
heavier emphasis on the desires and interests of the
parties which occurs in informal dispute resolution,
leading to a minimization of concern over legal
principles and precedents (Fiss, 1984; Resnik, 1982,
1987). Similarly, concerns have been expressed
about the appropriateness of mediation in settings
such as domestic violence (Fischer, Vidmar, and
Ellis, 1993). The other standard is subjective and
focuses on the feelings of disputants.
An important movement arising within the legal
community as an effort to reduce congestion in
court calendars, to diminish court costs, to speed
case disposition, and to reduce the time and cost to
litigants of resolving disputes is the alternative
dispute resolution movement. Programs
incorporating such alternative procedures seek to
serve the joint interest of society and the disputant in
having swift and low-cost justice.
Do informal procedures provide satisfactory
solutions to those people who bring their problems
into the court system? It is to this latter question that
this article is addressed. If disputants are satisfied
with the solutions reached via informal procedures,
then lawyers and judges can encourage the use of
such procedures without facing the issue of whether
to encourage clients to enter into procedures which
will not be satisfactory to them and/or the court
system, irrespective of whether those procedures
save them time and money and bring about a more
timely solution to their problems. In other words,
lawyers need to know whether there are value
tradeoffs involved in the procedural choices they
urge their clients to make and, if there are, the
nature of those tradeoffs.
One of the principle suggestions of the
Commission on the Future of the California Courts
is for the greater use of alternative dispute resolution
forums. The Commission argues that efforts to deal
with the future of the courts must incorporate the
widespread use of nonadjudicatory--i.e., alternative-dispute resolution processes. The report concludes
that “fundamental to the commission's vision of
multidimensional public justice is a wide array of
appropriate dispute resolution procedures” in
addition to traditional judge and jury trials
(Dockson, 1993, p. 40). The report advocates
encouraging people to use such procedures by
requiring that they use them prior to the right to trial
and by imposing economic costs on those who
choose to reject informal settlements and go forward
with a trial.
Ideally, it should be possible to identify
procedures that are timely, inexpensive, and provide
satisfactory dispute resolution experiences to those
who bring their problems to legal authorities. If such
procedures exist, then difficult tradeoffs can be
avoided.
There are many possible forms which
“alternative” dispute resolution might potentially
take. One common type of alternative dispute
resolution procedure is court-annexed arbitration.
Such programs divert some cases in the court
system to informal hearings *877 before a mediator
or experienced attorney. In such hearings disputants
are provided with a decision on liability and
damages, which they are free to either accept or
reject and demand trial de novo. To discourage the
Research on Subjective Evaluations of
Alternative Dispute Resolution Procedures
Research on disputant's subjective evaluations
of informal procedures provides good news. The
findings suggest that some, but not all, informal
4
process, would mediate in the future, and would
recommend it to a friend. In other words, many
found the mediation process useful even if it did not
directly lead to a solution to their problem.
procedures are satisfactory to most of the disputants
*878 who experience them. McEwen and Maiman
(1981) compared mediation to adjudication in a
study of 403 cases in small claims court in Maine.
They found that mediation was more favorably
evaluated than adjudication. In particular, in 44% of
the mediated cases both parties viewed the
settlement as fair, while only 24% of the adjudicated
cases had this outcome. Further, parties were more
likely to comply with mediated settlements. In
mediated cases 71% fully complied, while only 34%
fully complied in adjudicated cases. Interestingly,
53% fully complied in cases in which there was an
unsuccessful mediation, followed by adjudication.
More recently Pearson and Thoennes (1989)
found that about seventy-five percent of mediation
clients expressed satisfaction with *879 mediation
and indicated that they would recommend it to
others. A similar study of divorce mediation (Kelly,
1989) concludes that the findings “consistently
favor mediation as a method for reaching
comprehensive divorce agreements when compared
to the adversarial process (p. 84)”.
McEwen and Maiman report that the mediation
program was also enthusiastically supported by
judges, who felt it allowed them to focus their
attention on those cases than most needed their
attention. It was also supported by lawyers, who
found that it helped them to “coax an unreasonable
client into a reasonable settlement (p. 242)”.
Further, people are more willing to accept
agreements which develop during mediation.
Pearson and Thoennes (1984) indicate that 85% of
those who successfully mediated their dispute report
general compliance with the agreement by both
parties, while only 60% of other groups report
compliance. This pattern of compliance with
agreements was found to be “more durable” over
time “than with those agreements worked out in
other ways (p. 509)”.
A similar small-claims based mediation
program in Pittsburgh was evaluated by the RAND
corporation (Alder, Hensler, and Nelson, 1983).
Again, mediation was found to be generally
favorably viewed, with 75% of respondents
reporting satisfaction with the procedure and 74%
accepting the decision. An evaluation of a mediation
program in New Jersey, again by the RAND
corporation, but involving automobile cases,
supported these findings by showing that disputants
generally “viewed arbitrators and arbitration
hearings quite favorably (MacCoun, Lind, Hensler,
Bryant, and Ebener, 1988; p. 43).”
These findings support the argument that at
least some forms of informal justice provide an
alternative to the formal legal system. Informal
justice is widely viewed by disputants as satisfactory
and produces agreements which people are often
willing to accept. Hence, research findings suggest
that there may be effective ways for the legal system
to provide greater access to justice for people with
disputes. If the courts implement the widespread use
of alternative procedures, court popularity will not
be hurt. On the contrary, such an effort should
increase public satisfaction.
Mediation programs have been widely used in
family law cases involving divorce and child
custody. Approximately 50% of the civil cases filed
in state courts are for the dissolution of marriage
(see Feldman, 1990), making family law cases an
important element in arguments that the courts are
“clogged” with civil actions. Further, the prohibitive
legal fees and lengthy duration of divorce
proceedings make more difficult an already painful
and damaging transition in people's lives.
What Types of Informal Justice are Popular?
The previous discussion has focused heavily on
one form of informal justice-- mediation. While the
findings outlined suggest a favorable view of
informal justice, it is important to note that they do
not provide a blanket endorsement of all informal
legal procedures. One common type of informal
procedure is a settlement conference. In such a
conference the lawyers and judge negotiate a
resolution to a legal dispute.
A longitudinal evaluation of a custody
mediation program in Denver (Pearson and
Thoennes, 1984), suggests that over 80% of those
exposed to mediation develop their own agreement
during the mediation process, while only 50% of
those who do not use mediation develop their own
agreement. Further, 92% of those who successfully
mediated and 61% of those who unsuccessfully
mediated indicate that they were satisfied with the
A comparison of three methods of dispute
resolution--trials, mediation, and settlement
conferences--conducted by the RAND corporation
suggests that disputants evaluate settlement
conferences to be both less satisfactory and less fair
than both mediation and formal trials (Lind,
5
whether informal justice is, in fact, better in these
objective terms. As Lind, MacCoun, Ebener,
Felstiner, Hensler, Resnik, and Tyler (1989)
suggest: “One of the principal reasons for designing
and instituting procedures such as court-annexed
arbitration or settlement conferences is the hope that
these procedures will resolve cases more rapidly and
reduce the cost of justice. Less delay and lower
litigation costs are desirable in their own right, of
course, but it is generally assumed that delay and
cost are also undesirable because they are important
sources of litigant dissatisfaction (p. 17)”.
MacCoun, Ebener, Felstiner, Hensler, Resnik and
Tyler, 1989). Hence, the settlement conference,
while an informal method of dispute resolution, is
not viewed as satisfactory by those who experience
it. There are features of mediation that make it
particularly attractive beyond simply being an
informal alternative to the formal courts. Those
features will be discussed in the second section of
this article.
What are the Limits on Mediation Effectiveness?
While studies generally suggest that mediation
is popular, it is not always equally popular, nor is it
always equally effective. Research*880 suggests
that mediation is more likely to be effective and
popular when both sides admit partial liability for
the problem. In a study of small claims cases,
Vidmar (1986) found that cases of jointly admitted
partial liability were more likely to produce
compromise verdicts. Under circumstances in which
there is a clear legal answer to the dispute, with one
party having legal rights, adjudication may be more
effective (Vidmar, 1987). Under such circumstances
adjudication may produce a more effective solution,
since compromise is less possible. Mediation, in
other words, is most likely to be effective when the
parties can meet in the middle, with each side
making some consessions to the other. More
unilateral outcomes are more likely to require an
authoritative judgment of the type typically made by
a judge or arbitrator.
The good news about alternative dispute
resolution is that it is popular. Unfortunately, the
bad news is that it does not produce aggregate
economic savings for the courts. In fact, the good
news turns out to lead to the bad news. Since people
like mediation, they are less likely to settle their
disputes outside of the courts. Instead, they seek
*881 the use of court mediation. Increases in the use
of mediation offset the economic gains flowing from
lower levels of adjudication.
MacCoun, Lind, Hensler, Bryant, and Ebener
(1988) addressed this issue in their analysis of the
New Jersey automobile arbitration program. Their
study found no differences in the rate of trial, an
important source of court costs, linked to whether or
not there was a mediation program. Instead, the
existence of mediation “appears to be offering
informal adjudication to litigants who would
otherwise have reached a private settlement or
permitted their case to be disposed of by default or
dismissal (p. 34)”. Further, the program did not
lessen the length of time within which cases were
disposed. Finally, their interviews with attorneys
suggests that the program did not have “a
measurable influence on billable hours or legal fees
(p. 41)” and, more generally, did not reduce the
private costs of litigating an auto negligence suit.
The importance of the issue of legal rights is
highlighted by the finding of recent studies on child
custody mediation hearings that fathers are more
satisfied than mothers with mediation hearings
(Emery, Matthews, and Kitzmann, 1994). This
satisfaction was not linked to mediation producing
more favorable outcomes for fathers, since mothers
were in the strongest position in mediation, and in
adjudication, and won approximately 90% of
custody battles (Emery, Matthews, and Wyer,
1991). Rather, fathers valued the opportunity to
present their case which was offered by mediation.
Mothers, who felt in a strong position legally, were
less concerned about the opportunity to discuss the
case.
In the case of custody cases, Pearson and
Thoennes (1984) suggest that mediation led to
quicker case resolutions and “modest savings in
attorneys' fees (p. 507)”. The argument that
mediation speeds case resolution is also made by
Emery, Matthews, and Wyer (1991), who suggest
that agreements are reached in “half the time” (p.
410).
Does Mediation Save Time and Money?
Overall, findings are unclear about whether
mediation reduces the delays and costs of the
traditional court system. The problem in making
such comparisons is that most cases are not actually
resolved in trials (Tyler, 1989). Despite a common
tendency to think of trials as the model means of
One of the original motivations for the
alternative dispute resolution movement was
concern about the costs and delays associated with
the formal legal system. Cases not only often took
years to be resolved. The costs of litigation were
prohibitively high. Hence, one issue of concern is
6
resolving legal disputes, in actuality, the vaste
majority of cases are settled privately without a trial
verdict (MacCoun, Lind and Tyler, 1992). A recent
large-scale survey found that only 11% of all civil
disputes actually resulted in a court filing, and of
those filings, only 8% went to trial (Trubek, Sarat,
Felstiner, Kritzer, and Grossman, 1983).
benefits for disputants, irrespect of whether it is less
costly or more timely.
The popularity of ADR programs, combined
with the failure of people's feelings to be linked to
objective indicators of gain or loss or delay raises
the larger question of what disputants want from the
legal system and the criteria by which they evaluate
it.
Because most cases are not settled in trials,
formal trials, while strikingly expensive and time
consuming, are not the relevant comparison for
mediation. In programs lacking mediation many
cases are settled in bilateral bargaining, settlement
conferences, or because they are dropped by the
disputants. Hence, mediation does not replace trials.
However, in situation in which bargaining is
difficult and, therefore, trials are more frequent,
such as divorce or child custody hearings, mediation
may lessen court costs and delays.
Consider three possible aspects of their
experience that people might use to evaluate their
experiences with lawyers and judges. First, there is
winning. People might want to dominate the
settlement, coming out with as many assets as
possible. Second, people might want for the
settlement to be fair, for “things to come out right”.
Third, people might care about how their problem is
resolved--about the process they experience when
dealing with legal authorities.
The findings regarding informal justice are
paradoxical. While such procedures often lead to
greater satisfaction with the legal system than the
more traditional methods of case disposition (formal
trials, settlement conferences), it is not clear that
such procedures actually meet the goal of solving
problems of delay and litigation cost. Ironically,
some of this failure is linked to the popularity of
informal justice. In the New Jersey automobile
arbitration study, for example, *882 case resolution
was not hassened by the availability of mediation
because many people who would otherwise have
settled waited to have the opportunity to have a
mediation session (MacCoun, Lind, Hensler, Bryant,
Ebener, 1988). The availability of mediation,
consequently, increased satisfaction, but did not
reduce delay. Mediation, provides people with
important benefits, which they value, but those
benefits are not primarily linked to the quicker
resolution of their disputes or to decreases in the
costs of litigation.
If you ask people what they want, they often
say that they want to win. Their feelings are echoed
by the assessments of lawyers and judges, who see
disputants as reacting to their experiences in the
legal system in terms of how much they gain or lose.
Consequently, lawyers and judges do not focus very
much of their attention on how disputes are
resolved--since they do not feel that this issue is
important to members of the public.
However, the findings of research paint a very
different story. They suggest that the most important
issue to people is the process by which their case is
handled (Lind and Tyler, 1988). The second most
important concern is the fairness of the outcome.
Finally, the least important issue is the degree to
which people “win”, i.e., the *883 number of assets
they receive in the settlement. While no one is
happy if they do not receive what they want or feel
they deserve, happiness or unhappiness is most
strongly linked to feelings about whether their case
was handled in a fair way.
While the concern with developing informal
alternatives to the formal procedures of the court
originally developed out of the desire to provide
disputants with timely and affordable justice, that
effort was based, at least in part, on the assumption
that people evaluate their experiences with the legal
system in terms of the costs and delays they
experience. Interestingly, studies of people's
reactions to their experiences in court and mediation
suggest that there is little relationship between
objective indicators of cost and delay and litigant's
subjective evaluations of their experience with the
legal system (Lind, MacCoun, Ebener, Felstiner,
Hensler, Resnik, and Tyler, 1990). This finding
suggests that informal justice may have important
Let me illustrate this point with an example
from the research on child custody hearings which
has already been outlined. It has been noted that
fathers value mediation, although they are seldom
able to gain their desired outcomes. Why? In
mediation hearings fathers are given the opportunity
to present their arguments about how custody should
be handled. In other words, they receive a hearing
that they view as fairer. A direct test of this
argument using interviews with parents after child
custody hearings demonstrates that judgments about
the fairness of the hearing have an important
7
independent influence on satisfaction (Kitzman and
Emery, 1993).
sorts seemed to play at most a minor role in
determining litigants' attitudes (p. 77).”.
The importance of procedural concerns is
especially strong when the issue being examined is
dissatisfaction with lawyer, judges, mediators and
the courts. While procedural evaluations are the
most important factor in shaping personal
satisfaction, they are typically the only factor which
influences the impact of experiences on views about
the legal system. Hence, the impact of personal
experience on views about the over legal system is
heavily based on procedural judgments.
Lind, Kulik, Ambrose, and de Vera Park (1993)
similarly examined willingness to accept mediation
decisions in federal court in cases involving
substantial amounts of money. The amounts in
controversy ranged from $10,000 to $800,000. Still,
the primary factor disputants considered when
deciding whether or not to accept mediation results,
rather than going on to trial, was the fairness of the
mediation hearing (beta = .47, p < .001), with a
lesser influence of the objective favorability of the
outcome (beta = .20, p < .01).
The importance of procedural issues was first
made prominent in the United States through the
research of John Thibaut and Laurens Walker
(1975). They suggest that the use of fair decisionmaking procedures is one mechanism through which
both the winner and the loser can be reconciled to
the outcome recommended by a third party such as a
judge. Their research, however, involved the use of
laboratory experiments.
Beyond issues of money, those dealing with the
legal system often face substantial deprivations of
liberty. Casper, Tyler, and Fisher (1988) studied 411
defendants charged with felonies in three American
cities. Their concern was with post-disposition
satisfaction with the case disposition process. Their
results suggested that the primary influence on
satisfaction was procedural justice. For example,
defendants were asked if they regretted the way
their case was handled. Such judgments were
primarily determined by assessments of the fairness
of the disposition process (beta = .28, p < .001),
with sentence length have a lesser influence (beta =
.12, p < .05).
Subsequent studies have shown that the
procedural justice effects outlined are found in
important legal contexts, where substantial issues
are at stake. Consider, first, the issue of decision
acceptance. MacCoun, Lind, Hensler, Bryant, and
Ebener (1988) examined the willingness to accept
decisions in the New Jersey Automobile Arbitration
Program, a mandatory pretrial mediation program
for automobile injury lawsuits. They found that
judgments of the fairness of the mediation hearing
had a significant influence on the intention to accept
that award (r = .40, p < .001), an influence greater in
magnitude than the influence of winning or losing (r
= .30, p < .001). Further, the study found that the
primary thing litigants reported wanting from the
hearing was the opportunity to “tell their side of the
story” (62% of plaintiffs; 63% of defendants).
Interestingly, issues of delay and the cost of
litigation, which are often suggested to influence
litigants feelings, were found to have little impact on
satisfaction with case dispositions. This echoes a
similar finding *884 of an earlier evaluation of
judicial procedures (Lind, MacCoun, Ebener,
Felstiner, Hensler, Resnik and Tyler, 1989) that
“litigants' judgments of fairness and their
satisfaction with the court showed remarkably little
relation to the cost of the case or how long it took to
resolve. Litigation cost, in particular, was more
weakly related to satisfaction and perceived fairness
than we expected: there was in fact no indication at
all that litigation cost was a source of perceived
injustice or dissatisfaction. Economic concerns of all
As has been noted, procedural justice
judgments are found to be especially important to
people's evaluations of the third parties with whom
they deal-- lawyers, judges, prosecutors--and to
judgments about the court system and the law.
Tyler, Casper, Fisher (1989) examined the impact of
experiencing the felony case disposition process on
views about legal authorities and government. They
found that such general views about the legal system
were affected by experience. However, it was only
procedural justice which influenced views about
legal authorities (beta = .48) and government (beta =
.18). There was no influence of either distributive
justice or outcome severity. Further, attitudes
toward legal authorities and government were found
to generalize to views about the law.
People have also been found to generalize from
personal experiences to their everyday behavioral
orientation toward the law. Those who have
experienced procedural injustice are subsequently
less likely to follow the law in their everyday lives
(Tyler, 1990). Again, it is the injustice of procedures
that seems crucial, and the *885 favorability or
unfavorability of outcomes has no direct effect on
people's later law-abiding behavior.
8
reasonable complaints is seldom available, it is
particularly important that people view the
procedure as fair (Kerstetter, 1995).
The influence of procedural justice is also
found in recent studies exploring why people sue
(see Lind, 1996, for a review of this literature). For
example, Bies and Tyler (1993) interviewed workers
in the Chicago area about their experiences with
their organizations and supervisors. They focused on
those workers why had had negative experiences
with their work organizations, and who believed that
there were legal agencies to which they might
complain. Bies and Tyler (1993) examined what led
workers of this type to consider lawsuits against
their work organization. They found that the
primary influence on likelihood of considering suing
was whether people felt that the procedures through
which their negative experiences occurred were or
were not fair. In contrast, the likelihood of winning
in court had a minor influence on judgments about
whether or not to sue.
*886 The situation of police misconduct is
hardly unique within the law. Recent legal
developments in the area of laws concerning rape
focus on a similar difficulty. In the aftermath of
allegations of rape the typical defense is that sexual
relations were consensual. In such settings it is
typically a question of two conflicting stories, with
little independent evidence and no eyewitnesses. It
is in an effort to deal with the inherent ambiguity of
such situations that recent law has focused on the
possibility of judging consent through signs of
“post-traumatic stress” in the victim (Frazier and
Borgida, 1992). Again, the difficulty of sustaining
potentially valid grievances points to an especially
great need to provide procedures which victims will
view as fair.
The importance attached to procedural justice
accords with the more general finding that people
have a moral orientation toward the law and legal
authorities. They obey the law because they think
that legal authorities are legitimate and ought to be
obeyed, and that following the law is morally
appropriate. These moral judgments have more
influence on people's law-related behavior than do
judgments about the likelihood of being caught and
punished for law-breaking behavior (Tyler, 1990).
These findings provide wide support for the
basic suggestion that procedural justice judgments
are key to people's reactions to their experiences
with legal authorities. This finding suggests that the
public has a very moral orientation toward the
courts. They expect the courts to conform to their
moral values, and judge it against moral standards.
In particular, they focus strongly on the fairness of
the procedures by which the courts make decisions.
Of course, these findings do not suggest that
self-interested judgments have no effect. They do
influence disputants. However, a substantial
component of procedural influence does exist, and
this provides authorities with opportunities to bridge
the concerns of parties to a dispute. The findings
indicate that procedures provide a cushion of
support, with those who receive negative outcomes
through fair procedures continuing to have positive
feelings about their experience with the legal
system.
This finding has optimistic implications for the
courts. It suggests that people's satisfaction can be
increased under circumstances in which people do
not receive favorable outcomes. Hence, both parties,
and particularly “the loser”, can come away from
their experiences feeling positively toward their
lawyers, the courts, and the legal system. The use of
procedures acts as a “cushion of support” for the
system. People who judge their court procedures to
be fair do not become negative in their feelings,
irrespect of the outcomes they obtain. In contrast,
those who judge the court procedures in their case to
be unfair become more negative in their feelings if
they receive negative outcomes. With a fair
procedure, those who do not win have another basis
for continued support of the legal system. As a
consequence, both parties have a basis for accepting
outcomes received from the courts.
Procedural issues are also likely to be especially
important when authorities are unable to deliver
favorable outcomes. One example of such a
situation is the review of citizen complaints about
police misconduct (Kerstetter, 1995). One of the
persistent problems in the regulation of police
conduct is that in most instances there is neither an
independent witness (83%) nor independent
probative evidence (93%; see Kerstetter and Van
Winkle, 1989). In such situations, the review
basically involves the police officer's testimony
against that of the complainant. Not surprisingly,
most complaints, whether legitimate or not, are not
sustained during the review process. In situation of
this type, in which evidence to support potentially
Early work in procedural justice, in particular
the pioneering studies of Thibaut and Walker
(1975), emphasizes the importance of reconciling
both parties to a dispute to the outcome of a conflict
resolution effort: “One of the major aims of the legal
process is to resolve conflicts in such a way as to
bind up the social fabric and encourage the
9
Walker (1975) found that participation in trials
underlies judgments that the adversary system is
fair, while participation has been found to enhance
the fairness of plea bargaining (Houlden, 1980),
sentencing hearings (Heinz and Kerstetter, 1979),
and mediation (Kitzmann and Emery, 1993;
MacCoun, Lind, Hensler, Bryant, and Ebener, 1988)
continuation of productive exchange between
individuals (p. 67)”. Hence, procedures are
important because they provide a way in which both
parties to a conflict can accept the outcomes more
easily. This makes it possible to make difficult
allocation decisions without destroying either
ongoing relationships or the legitimacy of the legal
system.
Voice effects have not been found to be
dependant on having control over outcomes.
Instead, people have been found to value the
opportunity to express their views to decisionmakers in and of itself (Tyler, 1987). For example,
victims value the opportunity to speak at sentencing
hearings, irrespective of whether they influence the
sentences criminals receive (Heinz and Kerstetter,
1979). Interestingly, lawyers and judges often
oppose sharing control because they *888 think that
people want to share control over the final decisions
in a case. In fact, people are primarily interested in
sharing the discussion over the case, not controlling
decisions about how to handle it.
*887 These findings suggest a strategy for legal
authorities faced with difficult conflicts. By making
decisions in ways people see as fair, authorities can
gain greater acceptance of those decisions. Hence,
judges have substantially more ability to gain
acceptance for decisions which do not give people
what they want or feel they deserve than they often
believe. The key to such an ability is making
decisions in ways which people will view as fair.
In terms of the broader public concerns
reflected in the dissatisfaction expressed about the
courts, the message of these findings is also quite
positive. The courts and lawyers can make difficult
decisions without losing public support. To do so, it
is important to recognize the importance of the
fairness of procedures.
Ethnographic studies of narratives in courts
indicate that people want to tell their story, but that
they look to legal authorities (“lawyers) to put that
story into legally relevant form and to make
decisions about which legal principles apply to it
(judges) (Conley and O'Barr, 1990). Hence, people
are satisfied even when they lose, if they have had
suitable opportunities to express their sense of what
the problem is and how it should be handled.
What Leads a Procedure to be Viewed as Fair?
Of course, knowing that people react to
procedures that they view as fair is only helpful in
the abstract. To implement a procedural justice
strategy, it is necessary to understand which
elements of a procedure make it seem fair to the
litigants who experience it. Studies of procedural
justice suggest that people have a complex model of
procedural fairness. Seven or eight independent
elements are typically found to contribute to
people's judgments about the fairness of a legal
procedure (Tyler, 1988). In addition, situational
factors shape the importance of those factors.
Hence, there is no single procedure viewed as fair in
all situations (Tyler, 1988).
An interesting additional benefit of allowing
each side to state their case is that the other side
hears their story. Disputants typically enter the legal
system believing that justice is on their side. In fact,
studies of disputants suggest that they often see little
justice in the other parties' case. However, hearing
the other side of the case presented to a third party
allows each side to see that, in fact, there is another
side to the case. Since, the willingness to
compromise is crucial to success in mediation, this
is an important added benefit of mediation.
This discussion will focus on four core
elements that are widely found to influence
assessments of the fairness of legal procedures:
voice/participation, trustworthiness, interpersonal
respect, and neutrality. All of these elements
typically matter as much or more than the
favorability of the decisions reached.
The finding that people value the opportunity to
participate by expressing their opinions and stating
their case explains several seemingly paradoxical
findings in studies of differing legal forums. The
first finding is that mediation is more popular than
adjudication in the resolution of small claims and
civil cases (McEwen and Maiman, 1981). Why?
McEwen and Maiman attribute these findings to the
greater opportunities for participation allowed by
mediation.
Voice/participation. People feel more fairly
treated if they are allowed to participate in shaping
decisions which affect the resolution of their
problems or conflicts. The positive effects of
participation have been widely found. Thibaut and
10
civil cases in the French criminal courts, because
they feel that they will have greater opportunities to
participate in a case occurring within the criminal
law system. Ironically, the French civil court system
recognizes this dissatisfaction with trials and
provides a large number of levels of appeal for
dissatisfied litigants.
The second finding is that plea bargaining is
rated as a fairer procedure than a trial by defendants
on trial for felonies (Casper, Tyler, Fisher, 1988).
For example, among those who received an average
prison sentence 52% rated plea bargaining fair,
while only 24% rated their trial fair. Among those
who received a heavy sentence 15% rated plea
bargaining fair, while 0% rated their trial fair. In
both cases, litigants indicated that they felt they had
greater opportunities to participate in the more
informal procedure.
Trustworthiness. A second factor affecting
judgments about the fairness of procedures is the
disputants' assessment of the third-parties'
trustworthiness. That is, their judgment about
whether or not the third-party is motivated to treat
them in a fair way, to be concerned about their
needs, and to consider their arguments.
Interestingly, trustworthiness is the primary factor
that people consider when evaluating the fairness of
legal authorities (Tyler and Lind, 1992). The
importance of trustworthiness is illustrated by a key
limitation of the already outlined voice effect.
People only value the opportunity to state their case
if they believe that the authority involved has
considered their case. In other words, they must
believe that their arguments have been sincerely
considered, even if they were then rejected.
The idea that informal judgments of justice may
depart from the formal structures of the court is
further supported by a study of the Pittsburgh courtadministered mediation program (Adler, Hensler,
and Nelson, 1983). That study found that 75% of
cases referred to mediation were settled. Mediation
was generally rated as a satisfactory procedure for
dispute resolution, rating which were linked to
judgments that it was fair. An analysis of the
meaning of fairness indicated that litigants had an
informal “fair hearing” standard against which they
evaluated their experiences. Receiving fairness
involved: 1) having an adequate chance to state
one's case and 2) having*889 an unbiased, impartial
decision-maker. Both of these elements of
subjective fairness were met by mediation.
How can lawyers and judges communicate that
they are trying to be fair? A key antecedent of
trustworthiness is justification. When presenting
their decisions, authorities need to make clear that
they have listened to and considered the arguments
presented. They can do so by explaining why they
are making their decisions.
The importance of participation also explains
another previously noted finding of studies of the
legal system--that people view settlement
conferences as unfair (Lind, MacCoun, Ebener,
Felstiner, Hensler, Resnik, and Tyler, 1989). In a
settlement conference the judge and lawyers
typically negotiate an agreement, often without the
client present. Lawyers are often surprised when
they present their clients with what they regard as a
favorable settlement, only to be met by anger and
hostility. Such negative feelings are easily
understood from a participation perspective. Clients
want to be involved in the solution of their cases.
*890 Trust is a general concept and could
potentially reflect concerns about a variety of
aspects of the authority. Studies suggest that the
particular aspect of legal authorities that is most
central to the willingness of people to accept their
decisions is trust in their benevolence. In other
words, people focus most heavily on whether or not
they think that the mediator, lawyer, or judge they
are dealing with cares about them and their
problems and is truly trying to find a solution that is
good for them (Tyler and Degoey, 1996). This is
ironic, since most legal training focuses on issues of
competence in understanding and interpreting the
law. This aspect of authoritativeness is referred to as
neutrality, and will be discussed below.
Issues of voice and participation are not
uniquely American. Lariviere (1996) notes that there
is widespread dissatisfaction with the justice system
in France. This dissatisfaction develops from limited
opportunities for participation in that countries'
inquisitorial procedures, and occurs despite the fact
that the resolution of cases is relatively swift and
inexpensive. He notes that litigants in the civil
justice system have no opportunity to address the
court, which hears evidence from experts who have
interviewed the parties prior to the trial.
Consequently, people find the litigation experience
emotionally and psychologically dissatisfying.
Lariviere notes that people often try to initiate their
Interestingly, there is considerable evidence that
the basis of authoritativeness (e.g., of the ability to
gain voluntary acceptance from members of the
public) is changing from neutrality-based to trustbased. Neutrality-based authority gains credibility
through signs of professionalism and expertise, e.g.,
the evenhanded application of rules, lack of bias,
11
use of facts, rules, and procedures, etc. Such signs of
“professionalism” make the particular authority
dealt with a minor issue. A person, for example, can
go to any police officer or judge and receive
uniform, consistent, treatment and decisions.
Increasingly, however, there are suggestions that
this type of authority is less compelling to the
public. Instead, people are focusing on their views
about the morality and benevolence of the authority
with whom they are dealing. This focus on
trustworthiness leads to an interest in knowing the
particular authority with whom one is dealing. As a
consequence, it encourages personal connections
between citizens and authorities, and deference
based on a knowledge of the authorities' history and
values.
Trust is also important because it speaks to the
future. Judgments about current intentions allow
people to predict the future, since intentions develop
from a person's character--which people view as
generally stable and unchanging. Since people are
long-term members of society, their loyalty depends
on their predictions about what will happen in the
long-term. For this reason, people's attitudes toward
authorities depend as their judgments about the
benevolence of authorities changes. If they believe
that the authorities are trying to be fair and to deal
fairly with them, they develop a long-term
commitment to society.
The importance which people place upon the
motives and character of the judge, police officer, or
mediator with whom they are dealing suggests one
of the difficulties in instituting a rule of law within a
society (Cohen, 1996). Although the rule of law
suggests a focus upon the neutrality of procedures,
even within such procedures people are strongly
affected by their views about the particular
authorities with whom they are dealing. This is
especially true within a society such as China, were
personal networks have served as an important
source of authority.
An example of the encouragement of trustbased authority can be seen in the recent movement
toward community-based policing (Tyler and
Kerstetter, 1994). In an earlier historical period
police officers walked neighborhood “beats”.
Consequently, they knew the members of the
community their policed, and were known by that
community. Their authority developed from a
personal history, which led to trust in their motives
and values. That model of policing was then
replaced by a model which emphasized
“professionalism” in policing. Police officers were
removed from everyday contact with particular
groups of citizens. Instead, they exercised authority
over large areas and their authoritativeness was
linked to professional training and conduct (i.e., to
neutrality). Ironically, recent changes toward
community-based policing reflect a move back to
the earlier trust-based model. Those changes are
being encouraged by declining confidence in the
professionalism of the police. Hence, individual
police officers need to develop personalized
connections with people in the community. In
essence, authorities need to create their own
legitimacy*891 on an individual basis. They cannot
rely on the general legitimacy which they may have
as a member of the police force.
Interpersonal respect. Another important
element in people's reactions to legal authorities is
linked to the interpersonal respect they experience
through their treatment by authorities. Studies
suggest that being treated politely, with dignity and
respect, and having respect shown for one's rights
and status within society, all enhance feelings of
fairness. These findings are especially striking in
that such interpersonal treatment is essentially
unrelated to the manner in which their dispute is
resolved.
The importance of interpersonal treatment is
emphasized by the findings of a RAND study on
satisfaction with alternative forms of adjudication
(Lind, MacCoun, Ebener, Felstiner, Hensler, Resnik,
and Tyler, 1990). Their findings suggest that “the
perception of procedural dignity was the crucial
variable leading to higher procedural fairness ratings
for trials than for bilateral settlements (p. 981)”.
*892 Dignified treatment matters because it shows
that “the civil justice system took the litigants and
the dispute seriously”. “After all, the trial was in all
likelihood one of the most meticulous, most
individualized interactions that the litigant had ever
experienced in the course of his or her contacts with
government agencies”. The way that one is treated
during this experience carries important messages
concerning social status, self-worth, and selfrespect.
Why is trust such a central issue to those
dealing with authorities? An important clue is
provided by research on people's judgments about
the legal system (Tyler, 1990). In a study of citizens
in Chicago it was found that citizens recognized the
widespread existence of unfair treatment on the part
of the police and courts. However, when asked what
would happen if they dealt with the police or courts,
over 90% predicted that they would be treated fairly.
Hence, people have an illusion of benevolence--a
distorted sense that they are secure. Whenever
people deal with legal authorities, this illusion is
potentially open to question.
12
Reaffirming people's sense of their standing in
the community can be as or more important than
solving their problems. For example, studies suggest
that the police have little hope of solving residential
burglaries unless they arrive soon after the crime.
Hence, efficiency minded police administrators have
argued that the police should not even come out to
people's homes--they should have citizens submit a
written form detailing damages and losses.
However, from a psychological perspective, this
ignores the important symbolic role of being
allowed to call on the police for their services in
times of need. If the police do respond, and take the
citizens' complaint seriously, then public views
about the police remain high in the aftermath of
victimization (Parks, 1976). The police have
reaffirmed the person's right to call upon the
authorities during times of trouble.
the psychology of fairness. Litigant conceptions of
justice focus heavily on the enactment or
implementation of formal procedures (Tyler and
Bies, 1990). This includes attention to opportunities
for participation, inferences of trustworthiness,
interpersonal respect, and evidence of neutrality.
Hence, there is an important interpersonal
component to justice. This interpersonal component
includes process values which are distinct from the
correct application of legal rules. Those values have
little to do with the solution to the problem which
originally brought the parties into court. Hence, they
indicate a new arena for legal training. A better
understanding of the concerns of clients will enable
lawyers, judges, police officers, mediators, and
other legal authorities to act in ways that are more
likely to represent the publics' true concerns.
Of course, there are clear limits to the ability of
the courts to be supportive of people's procedural
concerns. Perhaps the most central limit is one of
case load. Judges are not simply free to spend their
time listening to litigants tell their stories in court.
Judges must dispose of cases to manage the
enormous number of cases facing the legal system.
Hence, some compromises with reality are
inevitable.
Neutrality. People are also influenced by
judgments of the neutrality of decision-making
procedures. Neutrality includes assessments of
honesty, impartiality, and the use of facts, not
personal opinions, in decision-making. Basically,
people seek a level playing field in which no one is
unfairly advantaged. Since people are seldom in the
position to know the “correct” outcome, they focus
on evidence that the procedures were even-handed.
It has already been noted that people focus on
procedural justice in situations in which the correct
outcome is unclear. Similarly, people focus on
neutrality when the appropriate outcome is unclear.
Further, the courts would not be doing their
duty if they simply surrendered the design of legal
institutions to public views, ignoring the concerns of
legal authorities. Clients lack the sophisticated
knowledge about the legal system, and about the
consequences of alternative legal procedures, which
might be used to design optimal legal procedures.
Of course it is important not to overstate the
case. People are not solely concerned about process
issues. They are also concerned about the fairness of
the outcome they receive and, to a lesser extent,
about its favorability. There are also self-interested
elements to people's reactions to their experiences.
Hence, it will never be possible to completely avoid
the dissatisfaction that develops out of failing to
receive desired or “deserved” outcomes. It is,
however, striking how much of people's reactions to
their experiences are not driven by such outcomebased judgments. It is these more social aspects of
people's evaluations that provide the greatest
possibility for improving citizen feelings about the
courts.
As an example, members of the public typically
dismiss concerns about Constitutional protections
for the rights of the accused, since it is difficult for
most people to imagine that they might be falsely
accused of a crime. Such problems are viewed as
likely to be encountered by “others”, who are
different in background and values, and may
actually be guilty. The difficulty people have putting
themselves in others' shoes is illustrated by the
results of a study of law enforcement searches and
seizures conducted by Slobogin and Schumacher
(1993). That study had subjects rate the
intrusiveness of a wide variety of search and seizure
activities by the police, for example monitoring a
telephone or a body cavity search (highly intrusive)
or looking through the foliage in a public park or
walking through a magnetometer at an airport (low
intrusiveness). It was found that people consistently
rated the same search to be less intrusive if it was
conducted on another person than they did if the
search involved them. Consequently, people's
Formal and Informal Justice
This review of important procedural elements
suggests strongly that there needs to be greater
attention paid to the interpersonal context*893
within which legal procedures are operationalized.
There is clearly a distinction between the formal
structure of the law and formal legal procedures and
13
which legal procedure to pursue, before approaching
the courts, are strongly influenced by assessments
about likely gain or loss. However, once people
actually deal with legal authorities, their concerns
change and they focus more directly on issues of
participation, trustworthiness, respect, and neutrality
(Tyler, Huo, Lind, 1995). In other words, they focus
on the nature of their connection with society and
legal authorities.
judgments about legal protections should not guide
the design of law.
*894 Broader Implications
There are two central implications of the model
of legitimacy which has been outlined. The first is
that citizens have a very different perspective on the
legal system than do lawyers and judges. In
particular, citizens want different things from the
system than they are typically given. Further, the
things that citizens want reflect a clear and
describable “psychological” model of public
concerns. However, that model departs substantially
from the model of legal decision-making which
lawyers and judges are socialized into in law school
and which dominates discussions about law and
legal authority in law journals and judicial education
conferences. Hence, there is a substantial gap
between desirable treatment as described by the
clients of the legal system (i.e., people who come to
the court with problems) and as represented in the
formal structure of the law and enacted by legal
authorities.
*895 This transformation in the psychology of
people's concerns helps to explain one of the
paradoxes which has been found in studies of
mediation programs. When neighborhood justice
centers have been established, they have typically
found that very few people bring their disputes to
them. People do not think that mediation will be
responsive to their need, which they think is to get a
statement that they are legally in the right. On the
other hand, once led into mediation by the courts,
people are very satisfied. This satisfaction develops
from the satisfaction of their “true” needs by the
mediator. Hence, people's orientation changes once
they establish a connection with a social authority,
in this case a mediator.
The second implication of the findings outlined
is that people are more interested in their long-term
social bond with legal authorities and with the legal
system than they are in the resolution of a particular
grievance. Grievances, disputes, or other problems
are important because the way they are handled
gives people important information about their
status within society (Tyler and Lind, 1992). Hence,
people focus on the broader meaning of their
experience with the legal system, and judge their
outcomes in this framework. In other words, people
accept “losing” more easily if they do not see losing
as having negative implications for their standing in
society and the likelihood that over time they will
receive fair outcomes from the legal system and
society more generally.
In summary, the existing evidence suggests that
a procedural strategy can effectively manage
conflicts of values and interests. Authorities benefit
when those within their group accord them
legitimacy based on judgments about the fairness of
their decision making strategies, and on perceptions
of their neutrality, trustworthiness, and willingness
to respect group members (i.e., the antecedents of
procedural justice). Leaders benefit because they are
able to secure voluntary compliance with their
decisions, which is more efficient than relying on
their ability to govern based on reward or coercion.
This procedural/relational underpinning of
legitimacy is crucial to the effectiveness of
authorities, since it allows authorities to act without
having to compel obedience to their decisions and to
social rules. Legitimacy gives authorities
discretionary power, which can be used to serve the
long-term interests of the group.
One implication of recognizing that people's
connection to authorities are strongly affected by the
nature of the social bond between authorities and
disputants is the suggestion that treatment will
matter more when people have a stronger social
bond with those with whom they deal. Studies
examining the psychology of the litigant at different
points in the litigation process support the prediction
that people's relational concerns are stronger when
they have a personal connection with authorities and
the system those authorities represent. Studies find
that people's concerns are transformed as they begin
dealing with legal authorities. Prior to dealing with
the courts people have an instrumental orientation
toward their problem. For example, choices about
In contrast, if legitimacy were based on policy
agreement or outcome favorability, then authorities
would lose legitimacy whenever they created
policies which countered the self-interests or values
of individuals or groups within society. However,
research studies have failed to support the
instrumental model of authority. Instead, they have
supported the predictions of the relational model
which provides a hopeful conclusion about the
ability of authorities to bridge across differences
among subgroups within a larger social context. It
14
interests. Research has demonstrated how people's
attention can be diverted away from distal,
distributive issues to proximal, procedural issues. In
fact, people may use the fairness or unfairness of
procedures as a heuristic for determining the justice
of the outcome distribution (Folger, 1987; Lind,
Kulik, Ambrose and de Vera Park, 1993).
Perceptions of a procedure as fair might discourage
a critical assessment of outcomes. The heuristic that
fair procedures lead to fair outcomes (Tyler and
Lind, 1992) might be overused, leading to relative
satisfaction with otherwise undesirable results (e.g.,
Greenberg, 1990; Tyler and McGraw, 1986).
suggests that authorities can garner widespread
support for their policies, as well as make difficult
decisions without losing public support, if they
utilize fair decision-making procedures and show
respect for individual members of their society.
Existing research shows that the procedural
justice approach has considerable ability to bridge
differences in values and interests in conflicts. Such
an approach allows authorities to effectively manage
intractable differences in opinion about what the
“right” solution to these problems should be. For
example, there are many solutions to a conflict
between individuals. The research suggests that if
people perceive that the policy adopted to deal with
the problem is arrived at using fair procedures, then
there is a higher likelihood that they will *896
accept the policy than if the procedures used are
perceived as unfair, even if they might benefit from
an unfair policy. This is the key advantage of a
relational justice strategy.
Scheingold (1974), for example, has examined
the use of courts by members of disadvantaged
groups and suggests that the courts often provide
only symbolic satisfactions. That is, the
disadvantaged derive satisfaction because they focus
on the proximal procedural issues involved in
litigation, rather than on the distal distributive
problems that they initially hoped to solve.
Ostensibly just procedures can obscure the fact that
nothing has changed.
These findings suggest a positive direction for
the efforts of legal authorities. In the current climate
of dissatisfaction, the moral climate needed to
enhance the functioning of law can be rebuild
through the behavior of legal authorities. Studies
make clear that people who receive fair treatment
from legal authorities leave their experiences with
the legal system are not only more likely to
voluntarily accept decisions, they are also more
likely to leave with a positive orientation toward the
law, irrespective of the outcome of their case (Tyler,
1990; Tyler, Casper, and Fisher, 1989). Hence the
key to building support for the legal system lies in
citizen judgments that the procedures of law are fair.
*897 Limits on the Procedural/Relational
Strategy for the Effectiveness of Legal
Authorities
A key premise of the psychological model
outlined is that people's concerns about the
information communicated by fair procedures and
respectful, dignified treatment are linked to issues of
social identification. This model assumes that
people use their treatment by authorities as a sources
of information about themselves (Hogg and Abrams,
1988, 1990; Tajfel, 1978; Tajfel and Turner, 1986).
As group representatives, police officers and judges
communicate information about people's value to
the larger group through their actions (Hogg and
Abrams, 1988; Tyler and Lind, 1992). Fair and
respectful treatment accords importance and status
to individual group members while unfair and
disrespectful treatment communicates marginality.
These findings also have important implications
for training lawyers, judges, and other legal
authorities. Legal training focuses on appropriate
principles for use in resolving law-related disputes.
It assumes that the primary function of legal
authorities is to provide a equitable solution to legal
problems. These findings suggest that the public
considers such issues when reacting to dealings with
legal authorities. However, the public's definition of
fairness is much broader and includes several issues
not typically addressed by legal authorities. Hence,
one approach to seeking to rebuild public trust in the
legal system is to pay greater attention to these
issues
Identification and the Exercise of Authority
While research findings generally support the
importance of fair, respectful treatment, there are
situations under which people become more or less
concerned with procedural justice and relational
issues. In particular, the operation of procedural
justice should be influenced by issues of
identification. Identification with the society the
authority represents should facilitate the influence of
judgments about treatment on perceptions of
legitimacy and policy acceptance. In other words, if
Potential Dangers of a Procedural Justice Strategy
However, we must be wary of possible abuses
of a procedural strategy. Fair procedures can be
enacted to distract individuals from their true
15
people identify with the legal system and legal
authorities, they are more likely to defer to decisions
because those decisions are fairly made, and they
will give less weight to whether those decisions are
favorable or unfavorable.
Congress had a strong influence on policy
endorsement. Those who felt that Congress made
decisions fairly were more willing to support
government policies, irrespective of whether those
policies favored them.
The key point is that identification with society
should change how people define procedural justice.
One effort to examine how identification influences
the dynamics of reactions toward authorities focused
on a situation involving the regulation of scarce
resources. That study examined people's willingness
to defer to authorities to deal with a scarcity
problem. Tyler and Degoey (1995) considered the
California water shortage. They interviewed a
random sample of 402 residents of San Francisco in
an effort to explore the antecedents of judgments
about the legitimacy of the water commission--the
government agency which makes regulations
governing water allocation. They compared the
influence of the treatment people receive from the
agency to the influence of judgments about the
favorability of the decisions the agency makes.
Their basic findings support the conclusions of prior
procedural justice research. They found that
judgments about the fairness of the actions of
authorities influence their legitimacy. People are
more willing to support authorities and their rules if
those authorities act in procedurally fair way.
Further, in forming judgments about policy
support, those who identified more strongly with
society relied more heavily on procedural
judgments, and less heavily on instrumental
judgments. If respondents did not identify strongly
with the overall American society, they decided
whether to support Congressional policies by
evaluating whether those policies benefited them.
However, if they identified strongly with American
society, they decided whether to support
Congressional policies by evaluating whether
Congress made decisions fairly (i.e., in neutral
ways, with benevolent motives, and with respect for
citizen rights). Again, leaders benefited from
people's identification with the society.
In a study of organizational employees, Huo,
Smith, Tyler, and Lind (1996) also showed that
employees' reactions to how their supervisors
handled a work conflict were determined by the
degree to which they identified with the work
organization. People who identified highly with the
work organization reacted to how their supervisors
handled their conflict in terms of whether they were
fairly treated. In contrast, people who identified less
with the work organization evaluated their
supervisors in term of whether they received
favorable outcomes.
The key additional analysis conducted by Tyler
and Degoey is an exploration of the relationship
between identification with the overall *898
community and the role of fair treatment in
legitimizing authorities. The results suggest that
those who identify with their community evaluate
authorities more strongly in terms of the fairness of
their treatment.
The findings presented illustrate how
identification with society can enhance the
effectiveness of authorities. Authorities benefit from
people's identification with the group they represent,
since those who identify highly with the group
evaluate authorities in terms of relational*899 issues
such as their neutrality and trustworthiness, as well
as through their treatment of citizens. Those who did
not identify with the group focused more strongly
on whether the decisions of the authorities favored
them. Identification with society enhanced the
legitimacy of authorities and hence, their ability to
elicit voluntary compliance with decisions which
were not congruent with the short-term interests of
some group members.
The finding that identification with society is
linked with a focus on treatment in evaluations of
authorities is also supported by two other studies.
Smith and Tyler (1996) studied a sample of 352
White residents in the San Francisco Bay Area, who
were interviewed concerning their attitudes about
public policies against work place discrimination
and in favor of redistributive economic programs
(“affirmative action”). This study explored the
willingness of the advantaged to support
Congressional policies which benefit the
disadvantaged. Respondents were asked to evaluate
the fairness of Congressional decision-making
procedures, and their evaluations were linked to
their willingness to support Congressional policies.
The study also assessed identification with
“Americans in general”. The study found that
judgments about the decision-making procedures of
The importance of declining legitimacy has
already been noted. This declining legitimacy
parallels a decline in the degree to which Americans
feel attached to their communities. In recent decades
American society has witnessed the increasing
breakdown of families, communities,
16
neighborhoods, and ethnic, cultural, and religious
institutions. Hence, at the same time it is struggling
with problems of its own legitimacy, the legal
system “must be all things to all people (Weinstein,
1966)”, solving disputes that traditionally would
have been solved outside the confines of the formal
legal system. Increasingly, “The legal system
embodies our last remaining vestige of a sense of
“community”--of shared values and expectations.
All the other dimensions of our lives--race, religion,
education, the arts, regional loyalty, and so on-divide us as much as they join us together because
they are based on matters of “substance” on which
we so often disagree (Terrell and Wildman, 1992, p.
422)”.
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