At The Beginning Of Their Case, Litigants Prefer Mediation To Most Adjudicative Procedures
Dr. Donna Shestowsky, a Professor of Law at UC Davis, with a doctorate in psychology, has authored a very interesting study on litigants’ preferences, at the beginning of their case, for different dispute resolution procedures. Her article, “The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante,” appears in the Iowa Law Review, Vol. 99:637 (2014), and is available online. Dr. Shestowsky’s article “reports the first multi-jurisdictional study of how civil litigants whose cases are filed in court assess legal procedures ex ante.” Her most basic conclusion is that, “contrary to what some scholars have argued, litigants prefer mediation to most adjudicative procedures ex ante.” While some scholars may find this conclusion “surprising,” I suspect that many litigators and judges will not find it surprising.
Some of Dr. Shestowsky’s conclusions are:
- Litigants significantly preferred mediation to all forms of adjudication except for the judge trial.
- Litigants preferred to negotiate with the parties alongside their attorneys rather than having the attorneys negotiate without the parties.
- Litigants expected binding arbitration to be the procedure with the lowest use, and attorneys negotiating without clients to be the procedure with the highest use.
- Litigants tended to like each procedure more than they thought they would use it.
- The more litigants highly estimated a trial win, the more they liked the idea of a jury trial.
- Women liked binding arbitration and jury trial less than men did.
- Repeat litigants liked binding arbitration more than newbies.
- Personal injury litigants liked jury trial more than property litigants.
- Ethnicity was not a factor in any of the significant models.
The most surprising result to me was that litigants who opposed a company liked binding arbitration more than litigants who opposed an individual – surprising in light of the assumption that consumer and employment plaintiffs shun arbitration. However, this doesn’t really address the hot area of developing law concerning the availability of arbitration in consumer class actions. Consumer class actions and the “psychology of procedural preference” could well be a separate study.
Dr. Shestowsky candidly acknowledges caveats regarding the study: 1) the correlations do not establish causality between the factors examined; 2) the response rate was 10% – not unusual for a mail survey, but still 10%; 3) future replication is desirable, as only three jurisdictions were studied (Third Judicial District Court, Salt Lake City, Utah, Superior Court of Solano County, California, Fourth Judicial District, Mulnomah County, Oregon); 4) important categories of cases had to be excluded – foreclosure and collection cases, as well as landlord-tenant, family law, tax, and bankruptcy cases.
This study will certainly provide fertile ground for many more such studies. For example, the “case pull” for the study involved litigants identified during a two-week period within the filing of their case. At that point in time, most first-time litigants know very little about ADR and what to expect from litigation. How do their attitudes about litigation procedures evolve as their case grinds on?
And what about the significant role of the judge in shaping the litigant’s evaluation of legal procedures? Often, judges give a pep talk to litigants, urging ADR, because it empowers the litigants, is relatively inexpensive, makes it easier to collect money, allows a negotiated outcome rather than a thumbs up or down result for the litigant, resolves most disputes, allows creative “win-win compromises”, is confidential – and, oh yes, clears court calendars. But frequently this talk comes very late in the process. How might the judge shape the litigant’s procedural preferences, if the litigant heard that talk early on from the court?
Who pays for the mediator, and how does that factor affect procedural preferences?
And why should we care about how the litigant evaluates legal procedures ex ante more than we care about how the litigant evaluates legal procedures post ante?
In a recent interview, former Secretary of State Robert Gates said, “the dirty little secret in Washington was that the biggest doves wore uniforms.” Similarly, one could say that the biggest proponents of mediation are often the suited lawyers and the robed judges. They have seen the psychic and economic costs of legal warfare. “I must say as a litigant,” Judge Learned Hand famously lectured, “I should dread a law suit beyond almost anything short of sickness and death.” And perhaps this is not such a bad thing, because if the conclusions of Dr. Shestowsky’s article are correct, then the procedural preferences of the litigants must often align with the opinions of judges and lawyers. If only the legislators and taxpayers would support a robust mediation program in the court system, everyone might be just a little bit happier – or at least less disappointed.
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