Emotional due process. What is that, exactly?
This notion – emotional due process – jumped out at me when I recently came across it in a report about the September 2018 Global Collaborative Law Council’s (GCLC) annual conference. GCLC President Melanie Atha, a lawyer from Birmingham, Alabama, noted that Collaborative Law can satisfy the need clients in a dispute have for emotional due process.
Melanie credited another Birmingham lawyer, Frank Ozment, currently in-house counsel for Regions Bank, with coming up with the phrase. When Melanie returned to Birmingham inspired after taking the Collaborative Law training in 2011, she wanted to share this approach to resolving disputes with other lawyers, including Mr. Ozment. He listened and then noted that what Collaborative Law offered clients that courts didn’t provide was the opportunity to satisfy their need for “emotional due process”.
Before getting to “emotional” due process, let’s start with due process of law. As defined in Black’s Law Dictionary, the essence of it is this:
The essential elements of due process of law are notice and opportunity to be heard and to defend in an orderly proceeding adopted to the nature of the case, and the guarantee of due process requires that every person have the protection of his or her day in court and the benefits of general law… Further, due process rights are those of such fundamental importance as to require compliance with the standards of fairness and justice.
Certain elements of that definition are not usually satisfied by the typical litigated case. One of these is “an opportunity to be heard”. Since over 97% of the cases that get filed with courts settle and do not go to trial, most litigants won’t get the opportunity to be heard in court.
Further, that opportunity to be heard must be provided “in an orderly proceeding adapted to the nature of the case.” Litigation, governed by rules of civil procedure, is predictably the same in every kind of case: Complaint and answers are drafted by lawyers, filed and served, and then discovery follows for about a year or two. Over the next several months, lawyers file any motions that are warranted and they are ruled on by the court. Then (3% of the time and 2-3 years later), there may be a trial before a jury or a judge. The litigation process provides little to no opportunity to adapt the proceeding to the nature of the dispute.
During the recent celebration of Conflict Resolution Day (October 18) in Massachusetts, we honored the memory of Harvard Law Professor Frank Sander. Part of his legacy, the “Multi-Door Courthouse”, satisfied that part of the definition but sadly no longer exists. The notion of adapting the process to the nature of the case and needs of the parties involved, or “fitting the forum to the fuss”, as Sander coined it, is an essential part of due process. Before the parties choose a dispute resolution process, we must assure that they make an informed choice as to what the best approach is for their situation. Due process is best served – and maybe only can be served – when the process is adapted to the nature of the dispute.
If we fail to satisfy this informed consent requirement and are unable to “fit the forum to the fuss”, we have not satisfied the due process rights of those involved, let alone provide the parties’ emotional due process. That shortcoming is huge; it minimizes the chances that the parties will realize the best possible resolution of their dispute by going through the courts, unless by luck, litigation happens to be the right fit. Most of the time, it is not.
Frank Ozment and Melanie Atha recognized that beyond the need to adequately address a person’s legal rights, one’s emotional due process must also be satisfied. What is included within these emotional due process needs?
- The need for parties to be heard and listened to, acknowledged and understood by all those involved – lawyers as well as other parties – and to be able to engage in the conflict as long as needed, within a structure that provides the right environment for that to happen.
- The need to be able to creatively shape the solutions so that the resulting resolution meets all or most of the interests, goals and needs of all parties. These may include apology, acknowledgement, curing a culture or situation, to be understood, validation, respect. This goes beyond a Band-Aid response to the symptoms; it delves into solving the problem that caused the dispute: fixing what is broken, restoring the good.
- The need to be able to work at the pace and within the timeframes and constraints of the parties, not what the court mandates.
- The need to preserve key relationships between parties, avoid doing more harm, and when possible, improving them.
- The need for the parties to avoid the collateral damage of draining resources, funds, energies and emotions.
- The need for the parties to shape and determine their own solutions for their dispute.
Litigation and arbitration cannot meet these emotional due process needs. Even mediation or conciliation, if they are utilized too late in the litigation process, cannot meet these needs.
Collaborative Law does meet these emotional due process needs. Early mediation (either instead of litigation or very early in the litigation process) can also meet these needs. Hybrid dispute resolution processes designed for the specific circumstances of the dispute can meet these emotional needs, as well as truly meet one’s due process needs. In meeting these needs, they can also lead to a better, tailor-made, more satisfying and more complete resolution of disputes.