Groundbreaking New Study Uncovers Litigants’ Ex-Ante Dispute Resolution Preferences

Posted By , Jan 18, 2014

Tell me if this story sounds familiar. A book you’ve been dying to read has just (finally!) been released, so you head to the store to pick up a fresh copy. Basking in the afterglow of your purchase you rush home, anxious to dive in. The garage door is nowhere near closed, but you’re already inside making a beeline for the couch. And then, you’re ready. You open the front cover, take a moment to appreciate that “new book smell,” then flip to page one. The book is amazing. Too amazing. So amazing that you can’t stop yourself from skipping ahead. Far ahead. All the way to the end, in fact… And then you have to read the rest of the book knowing what’s going to happen.

What you’ve just read, and perhaps experienced, is (very roughly) what’s happening in the legal world; just not even mildly enjoyable. The Beginning: The financial crisis that threw the legal system into disarray and continues to wreak havoc and deny access to the court system. The End: Alternatives that provide litigants an opportunity to pursue justice and have their day; just not in the way an average layperson might imagine. The Middle: Well, now, thanks to King Hall’s own, Professor Donna Shestowsky, who teaches negotiation strategy, alternative dispute resolution and legal psychology, that narrative is now being written.

In her recently published article, “The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante,” the first in a multi-paper series, Professor Shestowsky examined what legal procedures civil litigants prefer at the start of their cases and found that litigants liked mediation, judge trials, and negotiations that included litigants and their attorneys, more than all other examined procedures.

These findings will hopefully help court systems design future generations of court-connected ADR programs—which offer litigants procedural alternatives to trial—by providing guidance on which procedures litigants find more appealing. And furthermore, the overall preference expressed for mediation over non-binding arbitration helps resolve a long-standing debate over which of the two procedures litigants prefer. This finding has important implications for courts that want to draw litigants into their voluntary ADR programs—especially if they offer only one ADR procedure.

Other interesting findings from the study include:

  • Women were significantly less attracted to jury trials and binding arbitration than their male counterparts;
  • Repeat players—those who had been a plaintiff or defendant before—preferred binding arbitration more than first-timers;
  • Litigants liked the idea of negotiating along with their attorney more than allowing the attorneys to negotiate alone; and
  • The more litigants were confident of a trial win, the less they liked the idea of having their attorneys negotiate without the parties also being present.

The study was funded by competitive grants from the National Science Foundation, the American Bar Association Section on Litigation, and the University of California, and involves extensive data from over 400 litigants, in 19 different states, whose cases—which include contract, employment, civil rights, medical malpractice, personal injury, and property disputes—were filed in court systems in California, Oregon and Utah..

 The article is available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2378622.

 Lawyers, judges, and all other members of the legal community were just bystanders when this story emerged from the financial crisis: spectators, with front row seats from which to helplessly watch it unfold. Rest assured, though; because our central role in its conclusion is secure. And now, thanks to Professor Shestowsky’s study, the pages in between are beginning to take shape.