Evaluating Dispute System Design: Forms of Justice as Measures of

Accountability and Impact

Lisa Blomgren Amsler (formerly Bingham) Keller-Runden Professor of Public Service

Indiana University School of Public and Environmental AffairsBloomington, IN

Email: Lbingham@indiana.edu

Overview

• Big Picture: Dispute System Design (DSD)• Political Economy: Institutional Analysis and

Development (IAD) • Public Administration: Accountability and Performance

Measurement• Psychology, Philosophy, Jurisprudence: Varieties Of

Justice• Nightmare of Accountability: Ferguson • Conclusion

Dispute System Design (DSD) Origins• Integrative Negotiation

• (Mary Parker Follett 1918)• Interest-based Negotiation

• (Fisher & Ury, 1981; Fisher, Ury, and Patton 1991)• DSD Origins: Interests, Rights, Power in Collective

Bargaining • (Ury, Brett, & Goldberg 1988)

• In Organizational Development • (Costantino & Merchant 1996)

• In Fortune 1000 • (Lipsky, Seeber, & Fincher 2003)

• In Law and Courts • (Rogers, Bordone, Sander, & McEwen 2013)

• In Private and Public Systems• (Amsler, Martinez, and Smith 2016 forthcoming)

IAD and Cooperative Governance in Political Economy

Institutional Analysis and Development 7 categories: 1. participants (individual or corporate) 2. their positions or roles 3. potential outcomes4. allowable actions and the outcome function 5. individual control over this function 6. information available to participants about

actions and outcomes, and 7. costs and benefits (incentives, deterrents)

Elinor Ostrom (1990, 2000, 2005, 2011)

DSD Analytic Framework (Smith and Martinez, 2009)

•Goals•Stakeholders•Context and Culture•Processes and Structure•Resources•Success and Accountability

(adding context and culture, Amsler, Martinez, Smith, under contract Stanford University Press)

Collaborative Governance:Voice and DSD across the Policy Continuum

•Upstream in the Policy Continuum•Legislative and Quasi-legislative Action•Making policy

•Midstream•Executive •Implementing Policy

•Downstream•Quasi-judicial•Judicial•Enforcing Policy

• Bingham, 2005, 2009, 2010

Upstream Midstream Downstream

Dialogue and Deliberation

AlternativeDispute Resolution

Dialogue and DeliberationCollaborative NetworksPublic Policy ADR

LegislativeQuasi-legislativeMaking policy

ExecutiveImplementingPolicy

Quasi-judicialEnforcing PolicyJudicial

British Columbia -- Citizens AssemblyDeliberative PollingParticipatory BudgetingChoice Work DialogueStudy CirclesPublic ConversationsCitizen JuriesConsensus Conferences

Participatory BudgetingNegotiated RulemakingUS Institute for Environmental Conflict ResolutionCollaborative Public Management -- Watershed networksLA Neighborhood Councils

Mediation & facilitation in lieu of agency adjudication and civil enforcement --EEOC, USPS, EPAAdvisory and binding arbitration at FDIC, EPACourt-connected ADR programsPrivate ADR providersTruth & Reconciliation Commissions

Accountability in Public Administration

•Accountability is the obligation of public servants to the public.

• Being called to account for one’s actions to carry out the public will and the various values it embodies.

• An instrument for a higher authority to exert control.

•Three key elements:• Information provided by the accountable party• Discussion between the accountable party and the

oversight body• The consequences for the accountable party.

(Brandsma and Schillemans 2013)

Accountability Frame for AnalysisDubnick and Frederickson (2009) and Dubnick and Yang (2011)

•Six Accountability Promises•MEANS OR MECHANISMS: Three instrumental promises •Control (inputs)•Ethical behavior/choices (processes)•Performance (outcomes).

•ENDS OR VIRTUES: Three intrinsic promises • Integrity (inputs), •Legitimacy (processes), and • Justice (outcomes).

Means through Performance Measurement:Government Reporting and Results Act

• Requirements of GPRA: Strategic Planning, Annual Performance Plans, & Annual Performance Reports • ALL REQUIRE USING PERFORMANCE MEASURES.

• GPRA Measure Requirements: Quantitative, Objective, Measurable

• Measurement Types • Inputs: Resources consumed• Outputs: Quantities produced• Outcomes: Results

Can We Measure Accountability in DSD through Varieties of Justice? (incomplete list, Bingham 2008-09)

• Outcomes: Substantive, Distributive, Utilitarian, & Social Justice

• Voice and Process Control: Procedural Justice• Organizations: Organizational, Interactional,

Informational, & Interpersonal Justice• Community: Corrective, Retributive, Deterrent,

Restorative, Transitional, Communitarian, & Communicative Justice

• Can we measure the instrumental promise of performance using the intrinsic promise of justice in DSD?

Accountability as Intrinsic Promise of Justice: Examples

•US Department of Justice Agency Litigation & ADR• Accountability using distributive justice finds no statistically

significant difference in outcomes if AUSAs use ADR (Bingham et al. 2009a).

•USPS REDRESS Program: EEO Mediation• Accountability using procedural justice (PJ) measures in

voluntary mediation through exit surveys of employee and supervisor perceptions.

• Reported every six months for 12 years (Bingham et al. 2009b). •US Occupational Safety and Health Review Admin.

• Accountability using PJ in surveys on DSD shows Repeat Players prefer mediation to adjudication with an ALJ.

The Nightmare Scenario: FERGUSON POLICE AND COURTS

MEANS: MECHANISMS ENDS: VIRTUES

INPUTS CONTROL: POLICE CONTROL VIOLATIONS OF LAW, MINOR INFRACTIONS OF CODES

INTEGRITY: POLICE ACT WITHIN THEIR TECHNICAL AUTHORITY BUT BIASED ENFORCEMENT

PROCESSES ETHICAL BEHAVIOR: ARRESTS BY POLICE AND CONTEMPT ENFORCEMENT BY MUNICIPAL COURT

DEMOCRACY: UNDER-REPRESENTATION BY RACE IN ELECTED OFFICIALS AND POLICE HIRING; CONVICTIONS DISENFRANCHISE VOTERS

OUTCOMES PERFORMANCE:COLLECTION OF REVENUE TO SUPPORT GOVT. WITH PERFORMANCE OF POLICE MEASURED BY CITY

JUSTICE/EQUITY: SYSTEMIC PERVASIVE VIOLATION OF CIVIL RIGHTS AND RACISMDISCRIMINATION BY CLASS AND RACE

Implications of Accountability Frame for Research on DSD

•We need to use institutional design to build shared meaning.•Babbling equilibrium, apples & oranges

•We need to incorporate accountability and performance measurement into DSD.

•We need transparency in how designs promote justice and which kind.

•We need to measure what impacts and justice a system produces.