As a professional "neutral" (mediator and arbitrator) in New Mexico, I am keenly interested in due process, fair hearings and equal access to justice. In 2008, the ABA Judicial Division Lawyers conference began a multi-year "Perceptions of Justice" (POJ) project to address concerns over public perceptions as to how the judicial system handles race and ethnicity, and its first phase has now completed. This blog post discusses the recommendations, findings and observations of six separate "town hall meetings" held across the nation from February 2009 to February 2011, as part of Phase 1.
As Chicago judge Michael B. Hyman, chair of the Lawyers Conference in 2008, noted,"[f]airness underlies both the legitimacy and the effectiveness of a judicial system. Assessing fairness has less to do with reality and reason and more to do with perception and perspective. Many factors can affect perception and perspective, including race, ethnicity, class, religion, gender, sexual orientation, and education. Although any notion that the courts are unfair is alarming and unacceptable, studies and surveys consistently show that most whites perceive the courts to be fair and most people of color perceive the opposite." See Judicial Division Record.
As Chicago judge Michael B. Hyman, chair of the Lawyers Conference in 2008, noted,"[f]airness underlies both the legitimacy and the effectiveness of a judicial system. Assessing fairness has less to do with reality and reason and more to do with perception and perspective. Many factors can affect perception and perspective, including race, ethnicity, class, religion, gender, sexual orientation, and education. Although any notion that the courts are unfair is alarming and unacceptable, studies and surveys consistently show that most whites perceive the courts to be fair and most people of color perceive the opposite." See Judicial Division Record.
The results of recommendations, findings and observations of six separate "town hall meetings" held across the nation from February 2009 to February 2011 are presented in the most recent ABA Judge's Journal. They must give us pause in how we conduct our own hearings, and whether we are providing access to justice free from subtle or implicit bias or barriers.
- In many workplace discrimination cases today, courts are confronted with "multiracial settings," and are only now learning how to apply traditional legal standards of discrimination to events occurring in these multiracial settings.
- In criminal law, there are patent disparities in the charging of minorities by law enforcement personnel (many court constituents' first entree into the court system), and in the sentencing of minorities by judges.
- Many biases stem from arise from childhood experiences and can be both deeply rooted and subtle, so "the obligation of judges and court systems to protect litigants from bias within their operations... requires an active, daily effort to overcome" such biases.
- People with language and cultural differences fear they will not be treated fairly in court, so may be more inclined to "opt out" of the justice systems as litigants, witnesses or jurors.
- Overall, the courts have done a marvelous job with integrating minorities into the jury system, so that can be a model on how to integrate minorities into other aspects of the judicial system.
- There are a number of "institutional" issues disparately impact minorities, such as the underfunding of public defender departments; inadequate or underfunded probation, parole and social service departments.
- The courts need to increase vigilance against operational or functional bias in traditional systems in which minorities are disproportionately involved, such as high volume juvenile, family, traffic and small claims courts. This means, basically "humanizing and demystifying the court processes in high-volume courts." It also includes increasing the availability of good interpreters.
- At the same time, we need to develop wider use of alternative "community courts," community outreach, education, and creative sentencing, to meet the practical abilities of many minority litigants.
- Relatedly, we must acknowledge and address the fact that many citizens who commit a crime and "do the time" cannot easily reintegrate back into society because of their criminal record and prejudice, which in turns increases the likelihood of recidivism.
- There is a "pipeline" problem for the justice system in that law schools are becoming less diverse.
- The bench is also not sufficiently diverse, and should be better trained in "culturally competency."
- The ABA, law schools and lawyers must be included in a broad coalition to effect changes in all these areas.
Some of these recommendations and concerns are of limited applicability to ALJs, arbitrators and mediators. However, there are still a couple of things we to can do to promote access to justice in our own venue:
- ensure equal graciousness and civility to all litigants;
- explain processes, rules and general principles of guiding law to pro se parties;
- do not appear to chat amiably with one side or its representatives without doing the same with all equally; and
- afford all litigants equal respect and assumptions of credibility--irrespective of personal and/or socio-cultural-economic factors, such as education level, diction, accent, speech patterns, eye contact, expressiveness or lack thereof.
If you are interested in neutral services such as arbitration, mediation or contract ALJ services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
Pilar Vaile
Source:
Christina Plum and Rachel DuFault, "Race, Ethnicity, and the Courts, The Judges Journal, Su. 2011, vol. 50 no. 3, ABA.
