Priorities of Litigants in Mediation and Other Dispute Resolution Processes: A 2016 Study Report

By: Donald L. Swanson

“[I]f research were to suggest that litigants want to be included in the resolution process but do not desire free verbal exchanges between the parties,” how should ADR providers respond?

—Donna Shestowsky in, “How Litigants Evaluate the Characteristics of Legal Procedures: A Multi-Court Empirical Study, 49 U.C. Davis L. Rev. 793, 797 (2016).

Prof. Shestowsky’s article “presents findings” on “how civil litigants evaluate the characteristics of legal procedures shortly after their cases are filed in state court.”

The study examines characteristics of, (i) third-party involvement in the dispute resolution process, and (ii) litigant control. The following are findings in the report on these two characteristics.

Third-Party Management v. Third-Party Control

The study finds that litigants have a preference and eagerness for “third party involvement” in resolving their disputes: this is a priority for litigants—even over litigant control.

–And, in the minds of litigants studied, both judges and mediators qualify, equally, for providing the “third-party involvement” that litigants want.

Litigants want third-party management of the dispute-resolution process and its rules, but they do not want third-party control over the outcome.  For example:

–Litigants prefer the use of court rules for resolving their disputes; but as a second choice, they want a third party to “suggest appropriate standards and norms,” rather than relying on rules of the litigants’ own choosing.

Controlling the Outcome

Litigants want to control the outcome themselves. One way to maintain such control is for each of the parties to have a “veto power” over a third-party’s resolution suggestion.

–And that’s “as much decision control that the litigants desired.”

Presenting their Case

Litigants “most strongly desired being personally present for the resolution process,” and they “wanted a lawyer who would speak on their behalf.”

–“As a second choice, they were content to speak on their own behalf to a third party” (either a judge or a mediator); but

–Litigants did not want to be, (i) required to speak “freely to each other,” or (ii) excluded from “the resolution process.”

Relationships and Litigant Control

When litigants already know each other well, “they were less attracted” to litigant control. This is because their “insight into the traits of the opposing party” or “the dynamics” of their relationship create “an assumption that litigant control over the resolution of the dispute will not be enjoyable or productive.”

The “more value” that litigants place on “a future relationship with the opposing party,” the more they want litigant control over the dispute. This “makes intuitive sense,” Prof. Shestowsky explains, because, “if parties desire a continuing relationship, they might care to directly influence its parameters.”

Groups and Organizations v. Individuals

Groups and organizations, as litigants, are “significantly less attracted” to personal involvement and control of the litigation process than are their individual counterparts:

Groups and organizations “disliked the idea of greater personal involvement in the resolution of their case”; while

Individuals, (i) may feel “more personally invested in their conflict,” so they desire ”more direct involvement in its resolution,” and (ii) are “likely to be involved in fewer cases simultaneously,” than collectives, leaving them with “more time and energy for personal involvement”; and

“Similarly,” individual litigants are “significantly more attracted” to litigant control when the opposing party is “a company, group, or organization,” because they “feel less powerful, rendering a desire for personal control more salient and desirable.”

Age Distinctions

“As litigant age increased,” attraction to third-party control “decreased”:

“One might expect older litigants to be more familiar” with litigation because they “have had more indirect experiences” with lawsuits “through family members, friends, or acquaintances”; but

“life experience appears to be associated with some skepticism” on “what can be accomplished when control is delegated to third parties”; and

“younger litigants” might be “more deferential to third-party authorities” and “like the idea of giving third parties control more than their older counterparts do.”

Women v. Men Distinctions

Women like third-party control “less than men”:

–Women are “significantly less attracted” than men to jury trials and binding arbitration, “which tend to grant process and outcome control to third parties.”

Procedural Preferences

Regarding “procedure characteristics that litigants liked best,” litigants had significant preferences. “In general, litigants wanted assistance” from from judges and mediators on a number of items. The following is a process-based analysis and summary of findings from the study.

1. The “outcome”

–Litigants were “relatively uninterested in having ownership over the decision, even if they could solicit advice from their attorney or the help of a third party to make that decision”;

–“Maintaining veto power over the resolution of their case was as much direct control over the outcome that they desired”;

–How much “they liked this veto option” was tied to “how much they valued having a neutral person or group determine the outcome”; and

–Litigants “preferred to vest at least some decision control in a third party rather than assume total responsibility for the resolution of their case.”

2. The “process”

–Litigants “did not want full control” of the process;

–They “ideally wanted to be personally present for the procedure, but also be represented in that process”;

–They also preferred, as a “second choice,” presenting “their own case” to or “speaking” to “a third party” when directed, “rather than”:

(i) “having their lawyer present their case without them”; or
(ii) “engaging in a more informal conversation with the opposing party, even if a third party would be present for that dialogue”;

–Litigants have a “desire to experience some process formality and to avoid unfacilitated discussions with the opposing party”; and

–Litigants also want to “attend the procedure” if it includes “presenting evidence to a third party” and prefer “to present their own case rather than have their lawyer do so in their absence.”

3. The “substantive rules”

–Litigants “wanted to use court rules rather than rules determined by either the litigants themselves or a third party”; but

–When “faced with the latter two options, they preferred to use rules determined by a third party to rules chosen by the litigants”; and

–This is another instance of dispute resolution “in which litigants did not want full control.”

4.  Overall

–“Overall, litigants tended to desire formality.”

What Should We, Then, Do?

So . . . back to the question at the beginning of this article: based on empirical evidence, how should ADR providers respond?  For example:

–Should greater use be made of technology for a person to be “present” in the resolution process?

–How can a person communicate his/her views (e.g., “You really hurt my feelings!” or “You ruined my relationship with a long-standing customer, and I am really mad at you!!”) without having free verbal exchanges between the parties?

–Can parties adequately talk to the other side through their lawyers (the attorney, literally, finds out what exactly the client wants to convey and makes sure it gets said)?

Any thoughts or suggestions?

Conclusion

Prof. Shestowsky’s study and report provide fascinating insights, from empirical evidence, into litigant attitudes, expectations, preferences and priorities on what a dispute resolution process should provide. A huge thanks to the Professor for this work!

** If you find this article of value, please feel free to share. If you’d like to discuss, let me know.