Bridging our Justice Gap With Empathic Processes that Change Hearts, Expand Minds About Implicit Discrimination

Accusers and those accused of implicit discrimination seeking legal redress in our courts too often hear the refrain, “justice doesn’t apply to you.” Offenders and victims of implicit discrimination find that our discrimination laws are designed to respond to overt acts of discrimination even though social science research explains that most of our discrimination is unconscious. Nationwide, this outrage has overflowed from our courthouses into our city streets as the broader public holds large demonstrations protesting the incongruity between our discrimination laws and the reality of the public’s experience with discrimination and implicit bias. Left unabated, this justice gap is, in fact, becoming a justice crisis. Although in time our discrimination laws may be restructured to also respond to implicit discrimination, our litigants are demanding a more immediate intervention. This article responds to the urgency of this problem and presents a court innovation proposal to bridge our justice gap by introducing empathic processes into discrimination adjudication that will change hearts and expand minds about implicit discrimination. This one-of-a-kind court innovation proposal addresses these procedural justice concerns and mitigates this pending crisis by using empathy as a conflict resource to help mitigate the deleterious effects of implicit bias. Although this proposal doesn’t change discrimination law, it does humanize and debias the adjudicatory process for litigants to help restore confidence in our legal system. The proposal has three components. First, legal actors in the court system must be educated about implicit bias. Second, judges, as maestros of the adjudication process, have the judicial power to introduce empathic processes in their hearings, in their decision writing and in their court referrals. In this expanded role, judges can learn from their colleagues who assume a more problem-solving role when they preside over the increasing number of problem-solving courts that address legal problems that are also intertwined with social dimensions. Third, courts should use a differentiated case management approach in which settlement conferences and dispute resolution processes are redesigned to maximize empathic opportunities for the parties. Drawing on the research of reconciliation and meditation, a differentiated case management approach for implicit discrimination would increase empathic opportunities between litigants, expand the range of possible remedies, and strengthen the rule of discrimination law. By increasing empathic opportunities in discrimination cases, this proposal provides a greater opportunity for participants to feel that the court has truly heard their concerns and considered their underlying dispute, and strengthens the perceived legitimacy of discrimination laws. Once parties have greater opportunities to be heard and understood, parties are then more likely to believe that they have received the procedural justice they deserve when discrimination laws are applied to their particular case. In addition, this more responsive experience is likely to help strengthen people’s overall perception about the legitimacy of our discrimination laws. Another anticipated benefit of increasing empathic opportunities, parties themselves will develop a deeper understanding of implicit bias. Optimistically, this deeper understanding and stronger respect for the legitimacy of our discrimination laws will motivate us all to move forward, collaborate, and begin addressing the broader societal problem from which implicit discrimination emanates. The aspiration is to ultimately help change hearts and expand minds about implicit discrimination.