Fall 1999 Human Rights Magazine

By Thomas D. Barton

Over the past half-century, human rights protection in America has been closely linked with adjudication. Ironically, the considerable success of civil rights suits may have deflected attention from less formal methods for ensuring human rights. (See, Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse, 4-6 (1991).) Although litigation provides considerable power and range to resolutions of human rights problems, many violations can be prevented or rectified using less forceful techniques.

Creative problem solving (CPS) offers a fresh look at procedures and thought processes for resolving human problems. (See generally, Symposium, The Lawyer as Creative Problem Solver, 34 Cal. W. L. Rev. 267 (1998).) By reflecting on the cultural and organizational dynamics that lead to human rights violations, CPS may help conceive of innovative methods for minimizing those violations. Although CPS grows out of the alternative dispute resolution (ADR) movement, it attempts to be more preventive, flexible, and reflective toward the problems themselves. As a thought process, CPS may be used by lawyers, judges, or any other decision maker in a regulated environment. As a reform movement, CPS proposes structures for improving communication within organizations and among the general public.

The underlying premise of CPS is that richer communication about people’s rights and needs will create a culture that respects human difference and freedom more readily.

The ADR Option

In 1984, when the current movement toward ADR was being solidified, Yale Law School Professor Owen Fiss published a cautionary article entitled Against Settlement, 93 Yale L.J. 1073 (1984). In it, Fiss offered several reasons why private settlement of disputes may be undesirable. Litigation, he points out, tends to equalize power between disputing parties by ceding decision making authority to a disinterested, state-backed third party judge. In contrast, where settlements are negotiated, as in arbitration and mediation, decisional authority remains with the disputants. Therefore, any differences in power between disputants due to disparate financial resources, sophistication, or temperament are likely to be reflected in the bargained outcomes. (Id., at 1076-77.) Settlement, in other words, may well produce a far less advantageous result for the less powerful person than the likely outcome obtainable through court decree.Further, because many lawsuits involve organizations or causes that are larger than the particular persons seeking redress, settlement could be complicated by questions about who is authorized to consent to a settlement proposal. (Id., at 1078-82.) Perhaps even more importantly, a matter resolved outside the courts is never, in a sense, publicly joined. (Id., at 1085-87.) The outcome of a negotiated or mediated problem is not legal precedent; therefore, people in positions similar to a vindicated victim’s are not informed through a publicly disseminated case report that they may be legally protected. When disputes are privatized, arguably, we lessen the opportunity to advance substantive liberty interests to a wider group.

The Dilemma

These serious questions about the compatibility of ADR and individual rights—questions concerning integrity, public awareness, and just application of the rights—have never been fully answered. Yet, in the ensuing fifteen years since Fiss and others raised their concerns, diversion of disputes from the courts has nevertheless become commonplace. ADR continues to thrive because it responds to several pressures. For example, judicial efficiency (a well-publicized goal that helped advance the concept) remains an important concern. People also embrace ADR in reaction to what they see as undesirable social and cultural consequences of over-reliance on litigation. These include atomized individualism, in which rights are advanced with an adversarial zeal that ignores the impact on the community; financial exploitation of victimhood, which discounts personal accountability and interpersonal accommodation; and damaged interpersonal relationships that follow bitter court battles. The spread of ADR creates an obvious dilemma for those who support its goals but also urge strong legal protections for human rights. Simply rejecting ADR as a procedure when the problem somehow touches on important issues of individual liberty is one alternative. This strategy, however, was rejected by Fiss as unrealistic and impractical. (Id., at 1089.) Perhaps, a better resolution of the dilemma can now be found by applying the principles of CPS.

Creative Problem Solving

Creative problem solving is an emerging movement of theory, practice, and legal education dedicated to a variety of goals: (1) promoting institutional structures that prevent problems from arising in the first place; (2) developing principles to suggest the procedure(s) that might best resolve a particular problem once one does arise; (3) inventing new procedures for resolution, because having more alternatives available makes finding an appropriate fit between problem and procedure much simpler; and (4) providing lawyers and others with the skills and attitudes that will enable them to choose among, and effectively use, a number of alternative procedures. (See generally, Thomas D. Barton, Creative Problem Solving: Purpose, Meaning, and Values, 34 Cal. W. L. Rev. 273 (1998).)

Prevention

The first (and often the best) way to avoid litigation is to prevent problems from arising. Then, the hazards of using ADR to resolve human rights issues are fully transcended; the justice needs of particular individuals are secured by practices that arise from the environment, rather than being forced by judgment and power. To advance prevention, CPS would investigate the circumstances under which human rights violations usually occur, and suggest ways to construct more supportive social environments.This alternative device is not a formal procedure. It simply promotes routinely respectful treatment of every person and stresses consistent efforts to understand people who attempt to express a point of view. For example, structuring institutions and environments that broadly respect human differences and encourage forthright communication throughout every level of authority, will prevent many breaches of individual rights. Institutionalizing several alternative channels of communication helps people speak more candidly, and make the everyday, small accommodations to one another that prevent minor disagreements from becoming formal grievances. This gives everyone the satisfaction of being heard and subtly imparts a message that it is everyone’s responsibility to listen to others.

Matching Problem with Procedure

Where disputes do arise, CPS suggests carefully matching decisional procedures to particular problems. First, there must be a variety of alternative approaches available for use. Second, procedures can often be used nonexclusively, with multiple attempts at solving an entire problem or pieces of a problem. Finally, allocation of problems to various procedures will be more subtle if the decisions about alternatives remain in the hands of the problem holders and their attorneys, rather than forced by court rule. Whatever other devices may be available, traditional civil rights litigation should remain an option; litigation is a legitimate procedure for resolving some problems. It should be avoided where possible but preserved for instances in which a decision by a powerful, independent judiciary is needed—for example, in dealing with human rights abuses committed by the government itself. The disparity in power between the parties in this circumstance can only be leveled by the insertion of a third party from a co-equal branch of government. In general, individual rights take on a more abstract, universal quality when argued formally before courts. That is simultaneously a strength and a weakness of litigation. On the one hand, assessing the right to be greater than the particular individual asserting it does tend to equalize power between disputants. On the other hand, detaching legal arguments from the particular parties ignores the long-term effects of the legal judgment on the social and interpersonal relationships of the disputants. Yet, even that weakness may sometimes be an asset, if the relationship is not valued by the person asserting a liberty interest. Indeed, that may be the very point of the litigation—to provide a way to sever whatever connection the plaintiff had with the defendant. Litigation has served the important historical function of securing freedom for individuals from unwanted expectations and stereotypes. Shedding identities and role expectations through self-determination is an important philosophical underpinning of human rights—one often achieved only through a state-imposed decree. Wherever that is the case, formal litigation should remain available. Where both parties desire their involvement to continue, however, more room exists to experiment with alternative procedures. Equalizing power between such disputants does not necessarily require state intervention. Rather, any third party whose objectivity is respected can help resolve the dispute. Where both parties have a stake in continuing their relationship, be it an employment, family, or civic setting, an incentive exists for inviting, and respecting a disinterested third party.The role played by third parties can be more or less authoritative. In arbitration, for example, the third party determines the issues raised and argued by the parties to the suit. In mediation, in contrast, the third party merely facilitates a communication that will lead to a solution mutually agreed on by the disputants. In one model of mediation, the mediator scrupulously avoids offering suggestions about possible resolutions; in other models, the mediator makes proposals for the parties to consider. Even where the mediator makes no substantive contribution, however, some redistribution of power occurs simply from the facilitation by a skilled mediator. In between arbitration and mediation are a variety of settlement procedures that distribute decision-making authority between the disputants and the third party. Some of these procedures are informal, like asking the advice of an experienced third person. Organizations can increase the extent to which "advice-givers" resolve disputes quickly, simply by designating a number of people to play this role. (William L. Ury, Jeanne M. Brett & Stephen B. Goldberg, Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict, 48 (1989).)Other devices distributing decision making authority between the disputants and a third party include "facilitated" negotiations (Susan L. Carpenter & W.J.D. Kennedy, Managing Public Disputes: A Practical Guide to Handling Conflict and Reaching Agreements, 224-257 (1988); Gary S. Berman, Facilitated Negotiation: An Effective ADR Technique, 50 Disp. Resol. J. 18 (1995)) and "final offer" arbitration. (Ury, Brett and Goldberg, at 57.) In facilitated negotiations, a third party is brought in to assist the parties in communicating and settling their grievance by consent. This could be especially important where the parties do not understand one another’s positions or are approaching the dispute too emotionally. A facilitator takes a stronger role than a mediator to define the issues, control the pace and sequence of the parties’ dialogue, summarize the positions of each disputant, and help formalize an emerging agreement. Although a facilitator does not necessarily suggest a solution, the direction exercised over the parties’ presentations naturally compensates for an overly aggressive or weak style of one party.In "final offer" arbitration, the third party cannot compromise the parties’ positions. Instead, one of the parties’ final offers is treated as the decision. Id. This creates an incentive for each party to make a reasonable proposal, presumably one that takes into account the other’s needs. Id. Once again, the procedure has the effect of distributing power more equally between the disputing parties.

Inventing New Mechanisms

Unlike ADR, CPS urges the development of devices to publicize rights and issues and promote public discussion, as well as mechanisms to resolve particular disputes. Greater awareness of individual rights not only helps prevent abuses, but also guides even informal dispute procedures. Where the concept of human rights has cultural vitality, advisors are more likely to respond in ways that do not necessarily favor prevailing power distributions. Increased public awareness about human rights could also provide at least a partial corrective for the hazards in using more formal ADR procedures identified by Professor Fiss. The concern that private settlements divert issues from legal precedent and public discourse, for instance, could be addressed by developing alternatives to official case reports.Suppose, for example, that the ABA Section of Individual Rights and Responsibilities were to create a series of websites dedicated to narratives about human rights problems that are being informally resolved. In some respects, information provided unofficially in such a format could function better than case reports to inform and educate the public about their rights. Reporting violations and their resolutions in a narrative style, rather than in the formal language of a case report, would make the information more accessible to the public. Second, some of the information reported would be more complete than that provided in a typical judicial opinion. Third, the history of the dispute could be amplified. Knowing what resolutions had been unsuccessfully attempted could help those responsible for designing institutional grievance procedures. Finally, public commentary on outcomes could be invited by using an electronic bulletin board. This method would also represent a significant advance over existing opportunities for public discussion about local or national judicial decisions.

Attitudes and Skills

The new devices for resolving human rights issues can protect those rights in different, yet often stronger, ways than litigation provides. But apart from the operation of the procedures, the very process of their creation within any institution will help to advance rights and protect against abuses. First, constructing solutions requires reflection on and discussion of the patterns of social interaction that chronically lead to disputes. Such a process might suggest legislative or institutional reform initiatives that could reduce the recurrence of the problem. Second, the construction of these procedures implies an understanding and mastering of the skills required to apply the procedures. Finally, new procedures require an acknowledgement of both the psychological need that people have to express their positions, and the obstacles that stand in the way of communicating them. Where those in authority are willing to understand the frustrations of those who are not being heard and give those voices a chance to contribute, human rights are likely to be realized.

Creative problem solving is committed to generating new approaches to peaceful, effective, just resolutions of problems, and to training others in their use. Especially in the case of human rights, lawyers have the training, aptitude, and visibility to enable them to make special contributions. The dilemma of ADR and human rights may be transcended, but only through an understanding of the need to do so, and a willingness to try new approaches.

Thomas D. Barton is a professor of law at California Western School of Law in San Diego, California.