Justice and fairness have been at the forefront of our minds this year in the United States. The country has been facing increased calls for justice and fairness for all Americans, regardless of the color of their skin or other characteristics. As the year has continued, many people have had to shift their ideas of what justice and fairness mean as we have watched and become more aware of the injustices that large portions of Americans face.
The terms tend to be discussed as a pair, and rarely will a discussion of one happen without a mention of the other, even if the intention is to keep them separate. These two terms are so bound up in one another that their definitions include discussions of the other, usually with other terms like equality and equity. An understanding of these terms is important for daily life and equity work.
Considering Justice and Fairness
Justice and fairness are essential considerations for alternative dispute resolution practitioners and participants. The goal of alternative dispute resolution mechanisms is to create solutions while treating the parties with fairness and equality and giving the parties a sense of justice. This article will discuss the intersection of these terms and alternative dispute resolution processes. It will begin with an examination of the definitions of both justice and fairness, as well as the differences between them.
The article will then discuss the relationship between justice and fairness and why the two terms are often discussed in the same conversation. This will include a discussion about fairness as an element of justice. Next, the article will discuss the implementation of justice and fairness in alternative dispute resolution mechanisms and how practitioners can be aware of the concepts as they practice.
Fairness
Defining justice and fairness is important to ensure everyone works from the same starting place for the rest of the discussion. Both terms have a variety of definitions and mean different things to different people. Because of this, the discussion of the definitions will include a variety of meanings and characteristics attached to each term before seeking to create a working.
Fairness: The definition of the term used during the discussion in the rest of the article. Fairness is often described as a way of evaluating people or situations without bias. It means that each person within a group has an equal opportunity to benefit. For example, if someone offers a reward for completing a task, it is fair if everyone has equal ability and time to complete the task and, therefore, earns the reward. It is unfair if the reward is only offered based on a person’s characteristics or the person offering the reward’s opinion of them.
The Purpose of Fairness
Fairness seeks to establish an equitable way of dealing with decisions that affect others. It seeks to give other people equity without bias or using their experiences to influence the situation. Yet, each person’s standard of fairness is influenced by their own experiences and how they hope other people will treat them. Our sense of fairness is often offended when we feel as if someone has treated us, unlike how we would have treated them. What seems fair to one person may not be fair to another.
At the same time, fairness also requires an understanding of the experiences of others. What would seem fair from an objective point of view may not always be fair for each person. For example, the same time to complete a task may be unfair if different people use different tools or have different experience levels. And there will likely always be someone who finds a decision unfair.
Types of Fairness
There are also two types of fairness in the world. These are:
- Substantive: Substantive fairness is the substance of the decision or evaluation. The substance is what the decision is actually about or the subject matter. For example, if someone tries to split money among various people, substantive fairness would be how the money is divided and the decision to evaluate who receives what.
- Procedural: Procedural fairness is fairness in the way in which the decision is made. It deals with who makes the decisions and how they make them. The procedure aims to make the decision objective, honest, and meticulous.
Fairness requires treating people equally based on their experience and ability in similar situations. It requires the removal of inappropriate criteria and avoidance of favoritism and prejudice. It also requires that we do not take advantage of people’s mistakes or lack of knowledge and correct unfairness personally and institutionally as quickly as possible. Taking all of this together, a working definition of fairness would be that fairness is a decision-making process that sets aside bias and personal experience to create a solution that gives each person an equal opportunity to achieve a goal.
Justice
Many people will define social justice as a way to live a fair life. Others will say that justice is the way that humanity agrees is the morally correct way to live. It is a moral and political concept encompassing what the broader social structure has determined is right and good. Justice can also mean that each person receives what they deserve. Justice is often defined as a standard people are held to, whether willingly or unwillingly. Once the standard is identified, each person should be given what they deserve based on that standard.
However, because people will have different ideas of what the standard of rightness is and what everyone deserves, justice is not a concrete term and standard that can be applied across the board. Justice will often shift and change as the situation in which it is being applied changes. However, Aristotle sought to define justice despite these issues by asserting that “equals should be treated equally and unequally.” However, even this definition fails in the world because people often assign characteristics to people to make them unequal, even though they would typically be considered equal aside from these assigned characteristics.
Some of these differences are deemed appropriate because they contribute to one’s or another’s well-being—such as someone putting on their mask in an airplane before they help another. Yet others are arbitrarily assigned by others as they move through life. When society uses these arbitrary criteria, this is considered discrimination, and the world sees it as unjust.
Types of Justice
The definition of justice also includes a variety of types of justice that are encompassed in the term. Evaluating these types can bring a wider understanding of the overall idea of justice and how it applies. These types include:
Social:
Social justice is the drive to give equal political, social, and economic opportunities regardless of the characteristics assigned to them or that they choose, such as race, gender, religion, or sexual orientation.
Distributive:
Distributive justice analyzes how society distributes resources and whether the distribution is fair and just. It is often discussed with economics.
Restorative:
Restorative justice hopes to correct wrongs and restore those who suffered under a regime. The payment does not have to come from the wrongdoer; instead, it seeks to make the survivor whole.
Procedural:
Procedural justice refers to the legal decisions being determined fairly and unbiasedly.
Compensatory:
Compensatory justice ensures that people are properly compensated for their injustices and injuries. It requires that those who hurt them compensate them, unlike restorative justice, which focuses on the beneficiary rather than the person who gives the restoration.
Environmental:
Environmental justice ensures that all people receive fair environmental burdens and benefits. This is usually due to how environments are cared for in wealthy neighborhoods compared to neighborhoods or low-income areas.
Retributive:
Retributive justice seeks to apply a fair and objective standard to wrongdoers and punish them similarly. This usually concerns the corrective system as a punishment for crimes, but it can also apply to people who make mistakes in a classroom or workplace.
Justice is a broad and encompassing term that seeks to be the standard for which the world applies the concept of fairness to different topics and ideas. It is the standard for which political and legal systems seek to achieve a fair and equitable result. Additionally, justice can take on many forms and is used in various ways. Therefore, for a working definition, justice is how political, ethical, and justice systems seek to apply the factors of equity and fairness to the world to give people what they are due.
The Relationship Between Justice and Fairness
Justice and fairness are often used together because the terms are related; however, some important differences must be addressed to find the relationship between the two concepts. As mentioned in their respective definitions, justice is often identified as the standard of rightness that people are held to, and fairness is a way of relating to and evaluating others without placing bias or feelings over that evaluation.
Justice measures people worldwide, while fairness measures people for their ability without using our experiences to view them. Fairness is attached to concrete and specific characters, while justice is often discussed in abstract principles. Yet these two terms play a large role in the pursuit of equity and equality, both within and outside the alternative dispute resolution field. And the intersection of justice and fairness illustrates a larger point and goal in pursuing equity.
Because people have different experiences, beliefs, and values, everyone’s definition of the standard of justice and fairness will look different. How we deal with the world, and resources will often cause people to evaluate what is fair, just, and equitable. According to Aristotle’s definition of justice, justice, and fairness also require unequal treatment. This can often feel unfair on the surface, especially to people who see other people receiving more help to achieve a goal. However, fairness does not mean that all people receive the same tools; it means that all people receive the tools they need to have the same ability to complete a task.
Justice, Fairness, and ADR:
When considering the definitions and ideas of justice and fairness, it is important to consider how these concepts can influence how alternative dispute resolution practitioners practice the mechanisms to help solve disputes. Some principles already applied in alternative dispute resolution lend themselves to fairness and equality. Still, not all of them would necessarily create justice for the parties, especially in cases where there is an imbalance between the parties from the start.
We will evaluate the common features of most alternative dispute resolution processes as they relate to justice and fairness, and then we will evaluate each type of alternative dispute resolution. This will discuss what each type does well, areas that could increase parties’ equal access to justice, and how practitioners can be mindful of these principles.
The Common Features:
Most forms of dispute resolution involve similar features and characteristics that set them apart from litigation. These principles can bring justice and fairness or can hinder it.
- Participation: Part of alternative dispute resolution requires that the parties actively participate in the session and discussions. This does allow every party an equal opportunity to speak and be heard in the dispute. However, if the parties have unequal power, an “equal” opportunity may not allow for equal access.
- Flexible: Dispute resolution mechanisms allow the parties to shape the process and resolution. When the parties can come up with a solution that gives them all they need or want, it can provide fairness and justice. However, if one party is not savvy or knowledgeable, they could be taken advantage of during the process.
- Confidential: Alternative dispute resolution is usually confidential if the parties agree to keep the workings of the process to themselves. This tends to be a neutral factor. The lack of transparency can block justice for other parties in the future. Still, it can also ensure that the parties are not distracted by outside influences as they dispute, encouraging fairness as it applies to the specific parties.
- Solution-Focused: Dispute resolution tends to focus on the solutions to the issues rather than the past. This can allow the parties to resolve their dispute fairly. However, ignoring actions in the past will likely cause a harmed party to feel as if they did not achieve true justice unless past actions are addressed.
These characteristics, along with others, allow the process to move quickly and efficiently as needed to create a solution outside of the justice system. However, if not adequately assessed, there may be issues with the parties not achieving a fully just and fair result.
Areas for Improvement in Types of ADR
Alternative dispute resolution creates justice and fairness well in some areas but could be improved in others.
- Mediation: Mediation is the process where neutral works with the parties to create an equitable solution for all parties. This process allows the parties the freedom to speak and interact with each other to achieve a solution that is fair for their situation. However, because a mediator needs to remain neutral, they may not be able to adequately address a power imbalance that does not allow for justice and fairness. Mediators can be mindful of the power imbalances between the parties and ensure that the least-advantaged party has an equal opportunity.
- Arbitration: Arbitration is a process where the parties present their evidence to a panel of arbitrators, who then issue a decision known as an award. Arbitration tends to be a more controversial topic when talking about justice because it takes the decision out of the hands of the parties, and there is very little room to appeal the award. It allows the parties to speak freely and present more for their case than they would be able to in court. Arbitrators must also be acutely aware of the issues presented and the ability of the parties to participate fully in the process.
Conclusion
Justice and fairness are related but distinct terms that refer to the moral and ethical code of how human beings interact. Fairness is the ability to apply principles in a way that removes bias and helps create an equal playing field for everyone, even if that means giving different people different tools to set them up equally. Justice is the standard and basis for implementing and distributing resources to people.
There are differences between the two, but they are also related in practice. They are also important considerations for alternative dispute resolution work and should be at the forefront of a dispute resolution practitioner’s mind as they navigate the process. We cannot achieve equity and equality without focusing on justice and fairness, so identifying and creating fairness and justice brings healing and equity to our lives.
To learn more about the difference between justice vs. fairness, alternative dispute resolution, and more, contact ADR Times!
- Understanding the Stages of Conflict: A Guide - July 23, 2024
- What Is Dehumanization? An In-Depth Overview - July 12, 2024
- Can Text Messages be Used in Court? A Close Look - July 11, 2024