Procedural preferences in alternative dispute resolution: A closer, modern look at an old idea

Psychology, Public Policy, and Law

Volumn 10, Issue 3, 2004, Pages 211-249

  Shestowsky, Donna ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 4544386410     PISSN: 10768971     EISSN: None     Source Type: Journal    
DOI: 10.1037/1076-8971.10.3.211     Document Type: Article

References (185)

1. William L. F. Felstiner, Avoidance as Dispute Processing: An Elaboration, 9(4) LAW & SOC'Y REV. 695, 706 (1975); Neil Vidmar & Regina A. Schuller, Individual Differences and the Pursuit of Legal Rights, 11 LAW & HUM. BEHAV. 299, 303 (1987). Marc S. Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about our Allegedly Contentious and Litigious Society, 31 UCLA L. REV 4, 26-28 (1983) ("Many cases are withdrawn or abandoned ... most civil cases in American courts are settled."). A "claim" occurs when an injured party attributes the injury to the fault of another person or entity and asks them for some remedy. William Felstiner, Richard Abel & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming, 15 LAW & SOC'Y REV. 631, 635 (1980-1981). A legal "dispute" is a claim that is rejected in whole or in part by the blamed party. Id. at 636.
2. William L. F. Felstiner, Avoidance as Dispute Processing: An Elaboration, 9(4) LAW & SOC'Y REV. 695, 706 (1975); Neil Vidmar & Regina A. Schuller, Individual Differences and the Pursuit of Legal Rights, 11 LAW & HUM. BEHAV. 299, 303 (1987). Marc S. Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about our Allegedly Contentious and Litigious Society, 31 UCLA L. REV 4, 26-28 (1983) ("Many cases are withdrawn or abandoned ... most civil cases in American courts are settled."). A "claim" occurs when an injured party attributes the injury to the fault of another person or entity and asks them for some remedy. William Felstiner, Richard Abel & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming, 15 LAW & SOC'Y REV. 631, 635 (1980-1981). A legal "dispute" is a claim that is rejected in whole or in part by the blamed party. Id. at 636.
3. William L. F. Felstiner, Avoidance as Dispute Processing: An Elaboration, 9(4) LAW & SOC'Y REV. 695, 706 (1975); Neil Vidmar & Regina A. Schuller, Individual Differences and the Pursuit of Legal Rights, 11 LAW & HUM. BEHAV. 299, 303 (1987). Marc S. Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about our Allegedly Contentious and Litigious Society, 31 UCLA L. REV 4, 26-28 (1983) ("Many cases are withdrawn or abandoned ... most civil cases in American courts are settled."). A "claim" occurs when an injured party attributes the injury to the fault of another person or entity and asks them for some remedy. William Felstiner, Richard Abel & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming, 15 LAW & SOC'Y REV. 631, 635 (1980-1981). A legal "dispute" is a claim that is rejected in whole or in part by the blamed party. Id. at 636.
4. William L. F. Felstiner, Avoidance as Dispute Processing: An Elaboration, 9(4) LAW & SOC'Y REV. 695, 706 (1975); Neil Vidmar & Regina A. Schuller, Individual Differences and the Pursuit of Legal Rights, 11 LAW & HUM. BEHAV. 299, 303 (1987). Marc S. Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about our Allegedly Contentious and Litigious Society, 31 UCLA L. REV 4, 26-28 (1983) ("Many cases are withdrawn or abandoned ... most civil cases in American courts are settled."). A "claim" occurs when an injured party attributes the injury to the fault of another person or entity and asks them for some remedy. William Felstiner, Richard Abel & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming, 15 LAW & SOC'Y REV. 631, 635 (1980-1981). A legal "dispute" is a claim that is rejected in whole or in part by the blamed party. Id. at 636.
5. William L. F. Felstiner, Avoidance as Dispute Processing: An Elaboration, 9(4) LAW & SOC'Y REV. 695, 706 (1975); Neil Vidmar & Regina A. Schuller, Individual Differences and the Pursuit of Legal Rights, 11 LAW & HUM. BEHAV. 299, 303 (1987). Marc S. Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about our Allegedly Contentious and Litigious Society, 31 UCLA L. REV 4, 26-28 (1983) ("Many cases are withdrawn or abandoned ... most civil cases in American courts are settled."). A "claim" occurs when an injured party attributes the injury to the fault of another person or entity and asks them for some remedy. William Felstiner, Richard Abel & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming, 15 LAW & SOC'Y REV. 631, 635 (1980-1981). A legal "dispute" is a claim that is rejected in whole or in part by the blamed party. Id. at 636.
6. Robert S. Peirce, Dean G. Pruitt, & Sally J. Czaja, Complainant-Respondent Differences in Procedural Choice, 4 INT'L J. CONFLICT MGMT. 199, 200 (1993). As Peirce and his colleagues argue: "Two studies in natural settings have found that complainants prefer to start by talking with the other party before attempting other procedures. [One researcher who] interviewed small claims litigants in New York City, found that most of them had attempted negotiation first. Similarly, [another study] found that 59% of complainants who contacted a community mediation center had first attempted to resolve the dispute by means of negotiation. These studies suggest two conclusions: negotiation is the most popular starting point for resolving disputes, and people often move from one procedure to another as they seek a way to deal with the other side." Id. at 200.
7. Robert S. Peirce, Dean G. Pruitt, & Sally J. Czaja, Complainant-Respondent Differences in Procedural Choice, 4 INT'L J. CONFLICT MGMT. 199, 200 (1993). As Peirce and his colleagues argue: "Two studies in natural settings have found that complainants prefer to start by talking with the other party before attempting other procedures. [One researcher who] interviewed small claims litigants in New York City, found that most of them had attempted negotiation first. Similarly, [another study] found that 59% of complainants who contacted a community mediation center had first attempted to resolve the dispute by means of negotiation. These studies suggest two conclusions: negotiation is the most popular starting point for resolving disputes, and people often move from one procedure to another as they seek a way to deal with the other side." Id. at 200.
8. See Robert S. Peirce, Dean G. Pruitt, & Sally J. Czaja, Complainant-Respondent Differences in Procedural Choice, 4 INT'L J. CONFLICT MGMT. 199, 200 (1993) (arguing that unassisted negotiation often fails approximately two thirds of the time).
9. ADR procedures include "any process or procedure, other than an adjudication by a presiding judge." 28 U.S.C. §§ 651 (1998).
10. For descriptions of mediation and arbitration see notes 17-20 and accompanying text, infra.
11. 28 U.S.C. §§ 651 (1998).
12. 28 U.S.C. §§ 651-58 (1998). Sections 651b & d detail the mandate to create and evaluate new ADR programs and to evaluate and improve pre-existing ADR programs.
13. See Robert A. Baruch Bush, Alternative Futures: Imagining How ADR May Affect the Court System in Coming Decades, 15 REV. LITIG. 455, 461 (1996).
14. As Judge Wayne Brazil has commented, "Providing dispute resolution services whose quality and integrity are respected by the people encourages respect for government - and the more the people respect their government, the more willing they are to abide by the rules of law it promulgates." Wayne D. Brazil, Why Should Courts Offer Nonbinding ADR Services?, 15 ALTERNATIVES 1 (1998). For similar arguments, see TOM R. TYLER, UNDERSTANDING LEGAL COMPLIANCE WHY PEOPLE OBEY THE LAW NEW HAVEN: YALE UNIVERSITY PRESS (1990).
15. As Judge Wayne Brazil has commented, "Providing dispute resolution services whose quality and integrity are respected by the people encourages respect for government - and the more the people respect their government, the more willing they are to abide by the rules of law it promulgates." Wayne D. Brazil, Why Should Courts Offer Nonbinding ADR Services?, 15 ALTERNATIVES 1 (1998). For similar arguments, see TOM R. TYLER, UNDERSTANDING LEGAL COMPLIANCE WHY PEOPLE OBEY THE LAW NEW HAVEN: YALE UNIVERSITY PRESS (1990).
16. Deborah Hensler, A Research Agenda: What We Need to Know About Court-Connected ADR, 6 NO. 1 DISP. RESOL. MAG. 15, 17 (1999).
17. KATHERINE STONE, PRIVATE JUSTICE: THE LAW OF ALTERNATIVE DISPUTE RESOLUTION 4 (2000). See also Mediation Gets High Marks, 52-JAN DISP. RESOL. J (1997) (noting the increased use of mediation).
18. KATHERINE STONE, PRIVATE JUSTICE: THE LAW OF ALTERNATIVE DISPUTE RESOLUTION 4 (2000). See also Mediation Gets High Marks, 52-JAN DISP. RESOL. J (1997) (noting the increased use of mediation).
19. Tom R. Tyler, Yuen J. Huo, & E. Allan Lind, The Two Psychologies of Conflict Resolution: Differing Antecedents of Pre-Experience Choices and Post-Experience Evaluations, 2(2) GROUP PROCESSES & INTERGROUP RELATIONS 99 (1999) (reporting four studies showing that people arrive at pre-experience preferences for decision-making procedures by choosing procedures that help them to maximize self-interest in terms of material outcomes but base their post-experience evaluations on the quality of the treatment received during the course of the procedure).
20. The following are examples of maximum amounts in controversy that are reviewed by small claims courts: New York ($3000) N.Y. Unif. Just. Ct. Act. Law §§ 1801-1814; Illinois ($2500) 735 III. Comp. Stat. §§ 5/1-104 and 5/2-416; Alabama ($3000) Ala. Code SS 12-11-30, 12-12-31 (Supp. 1996); Michigan ($3000) Mich. Comp. Laws Ann. §§ 600.8401-600.8427, 8401-8427; Florida ($2500) Florida Rules of Court: Small Claims Rules 7.010-7.341; Texas ($5000) Texas Code Ann. §§ 28.001-055; and California ($5000) Cal. Code Civ. P. §§ 116.110-116.950.
21. Jacqueline M. Nolan-Haley, Court Mediation and the Search for Justice Through Law, January, WASHINGTON U. L. QUARTERLY 47, 61 (1996).
22. Kathleen A. Devine, Alternative Dispute Resolution: Policies, Participation, and Proposals, Winter, REV. OF LITIGATION 83, 91-92 (1991).
23. In the District of Columbia, a mandatory ADR program is applied to all civil actions in Superior Court, including small claims. This innovative program thus attempts to redirect small disputes out of the court system and into mediation. Id. at 177.
24. Elizabeth Plapinger & Margaret Shaw, Court ADR: Elements for Program Design 7 (1992).
25. Ibid. Id.
26. Judith M. Wolf, Sex, Lies and Divorce Mediation, 25 ARIZONA ATTORNEY 34 (November, 1996).
27. Id. at 5-6.
28. Sarah Rudolph Cole, Managerial Litigants? The Overlooked Problem of Party Autonomy in Dispute Resolution, 51 HASTINGS L. J. 1199 fn 3 (2000).
29. H. R. Rep. No. 487, 105th Cong., 2d Sess. 5 (1998).
30. 28 U.S.C. § 651-658 (1998).
31. 28 U.S.C. §§ 471-482 (1994 & Supp. V 2000).
32. Pub. L. No. 100-702, 102 Stat. 4642 (1988).
33. Caroline Harris Crowne, The Alternative Dispute Resolution Act of 1998: Implementing a New Paradigm of Justice, December, N. Y. U. L. REV. 1768, 1790-91 (2001).
34. For example, it provides that courts may not mandate participation in arbitration. It also restricts the binding effect of arbitrations - either party may request a trial de novo for any reason. § 654 (Arbitration), § 655 (Arbitrators), § 657 (Arbitration Award and Judgment).
35. James R. Holbrook & Laura M. Gray, Court-Annexed Alternative Dispute Resolution, J. CONTEMP. LAW 1, 4-5 (1995).
36. Ibid.Id.
37. Id. at 1794-95.
38. Caroline Harris Crowne, The Alternative Dispute Resolution Act of 1998: Implementing a New Paradigm of Justice, December, N. Y. U. L. REV. 1768, 1799 (2001). The court's authority to order mandatory ADR is limited to mediation and early neutral evaluation; no federal court can order parties to participate in an arbitration to which they have not agreed. 28 U.S.C. § 652(a).
39. Steven C. Bennett, Court-Ordered ADR: Promises and Pitfalls, 71 PENNSYLVANIA BAR ASSOCIATION QUARTERLY 23 (2000).
40. Ibid. Id.
41. Id. at 1776.
42. Id. at 1796
43. Roselle L. Wissler, Mediation and Adjudication in the Small Claims Court, 29 LAW & SOC'Y REV. 323, 341 (1995) (finding that because people generally view mediation as more fair than adjudication, parties involved in mediation were happier than parties involved in adjudication, even if a settlement was not reached). This satisfaction with ADR can have lasting implications for the agreement reached by the parties. See e.g., Craig A. McEwen & Richard S. Maiman, Mediation in Small Claims Court: Achieving Compliance Through Consent, 18 LAW & SOC'Y REV. 11 (1984) (indicating that parties who used mediation in the Maine small claims courts were almost twice as likely to comply with the terms of their agreements as parties with adjudicated judgments).
44. Roselle L. Wissler, Mediation and Adjudication in the Small Claims Court, 29 LAW & SOC'Y REV. 323, 341 (1995) (finding that because people generally view mediation as more fair than adjudication, parties involved in mediation were happier than parties involved in adjudication, even if a settlement was not reached). This satisfaction with ADR can have lasting implications for the agreement reached by the parties. See e.g., Craig A. McEwen & Richard S. Maiman, Mediation in Small Claims Court: Achieving Compliance Through Consent, 18 LAW & SOC'Y REV. 11 (1984) (indicating that parties who used mediation in the Maine small claims courts were almost twice as likely to comply with the terms of their agreements as parties with adjudicated judgments).
45. JOHN THIBAUT & LAURENS WALKER, PROCEDURAL JUSTICE: A PSYCHOLOGICAL ANALYSIS (1975).
46. See Walker, Lind & Thibaut, The Relation Between Procedural and Distributive Justice, 65 VA. L. REV. 1401 (1979). But see Mirjan Damaska, Presentation of Evidence and Fact-finding Precision, 123 U. PA. L. REV. 1083, 1095-1100 (1975) (questioning whether some of the experiments of Thibaut and Walker actually simulated distinctions between adversarial and inquisitorial systems).
47. See Walker, Lind & Thibaut, The Relation Between Procedural and Distributive Justice, 65 VA. L. REV. 1401 (1979). But see Mirjan Damaska, Presentation of Evidence and Fact-finding Precision, 123 U. PA. L. REV. 1083, 1095-1100 (1975) (questioning whether some of the experiments of Thibaut and Walker actually simulated distinctions between adversarial and inquisitorial systems).
48. Previous literature on preferences tends to combine " adversarial" and "adjudicative," implying that they are nearly synonymous. The literature suggests, for example, that mediation and bargaining are nonadversarial and that adjudication and arbitration are adversarial. I acknowledge that this conceptualization may represent a confound. For example, mediation can, in practice, be very adversarial in nature. Thus, I prefer to classify ADR methods on a continuum of adversarialism on a case-by-case basis, from "highly adversarial" to "nonadversarial." Using this method, one mediation session might be highly adversarial, but another might be nonadversarial. A less variable way to classify ADR methods, and what I prefer to use in this Article, is to classify procedures using a continuum of adjucativeness, rating them from "highly adjudicative" to "nonadjudicative." Using this method, mediation would, by definition, be less adjudicative than arbitration, which in turn would be less adjudicative than formal adjudication (litigation).
49. John Thibaut, Laurens Walker, Stephen LaTour & Pauline Houlden, Procedural Justice as Fairness, 26 STAN. L. REV. 1271 (1974). The term "veil of ignorance" was coined by the philosopher John Rawls, JOHN RAWLS, A THEORY OF JUSTICE (1971). The purpose of the device is to cancel out self-interest in the analysis of hypothetical social arrangements.
50. John Thibaut, Laurens Walker, Stephen LaTour & Pauline Houlden, Procedural Justice as Fairness, 26 STAN. L. REV. 1271 (1974). The term "veil of ignorance" was coined by the philosopher John Rawls, JOHN RAWLS, A THEORY OF JUSTICE (1971). The purpose of the device is to cancel out self-interest in the analysis of hypothetical social arrangements.
51. John Thibaut, Laurens Walker, Stephen LaTour & Pauline Houlden, Procedural Justice as Fairness, 26 STAN. L. REV. 1271, 1276-78 (1974).
52. Id. at 1276-78.
53. Id. at 1274-75.
54. The decreased preference ordering of the other four procedures differed according to experimental condition. Id. at 1280. Those in the advantaged role preferred the inquisitorial and single adversarial model more than did those in disadvantaged role and those in the disadvantaged role preferred the adversary procedures more than did those who were disadvantaged. Id. at 1280-81. Moreover, participants in the disadvantaged role were found to prefer bargaining procedures more than those in the advantaged role. Id. at 1282. Participants in the disadvantaged role and those behind the veil indicated greater preference for those procedures that favored the disadvantaged party, while advantaged participants did not. Id. at 1283. The best predictor of preferences, regardless of experimental condition, was perceived fairness.
55. The decreased preference ordering of the other four procedures differed according to experimental condition. Id. at 1280. Those in the advantaged role preferred the inquisitorial and single adversarial model more than did those in disadvantaged role and those in the disadvantaged role preferred the adversary procedures more than did those who were disadvantaged. Id. at 1280-81. Moreover, participants in the disadvantaged role were found to prefer bargaining procedures more than those in the advantaged role. Id. at 1282. Participants in the disadvantaged role and those behind the veil indicated greater preference for those procedures that favored the disadvantaged party, while advantaged participants did not. Id. at 1283. The best predictor of preferences, regardless of experimental condition, was perceived fairness.
56. The decreased preference ordering of the other four procedures differed according to experimental condition. Id. at 1280. Those in the advantaged role preferred the inquisitorial and single adversarial model more than did those in disadvantaged role and those in the disadvantaged role preferred the adversary procedures more than did those who were disadvantaged. Id. at 1280-81. Moreover, participants in the disadvantaged role were found to prefer bargaining procedures more than those in the advantaged role. Id. at 1282. Participants in the disadvantaged role and those behind the veil indicated greater preference for those procedures that favored the disadvantaged party, while advantaged participants did not. Id. at 1283. The best predictor of preferences, regardless of experimental condition, was perceived fairness.
57. JOHN THIBAUT & LAURENS WALKER, PROCEDURAL JUSTICE 80 (1975).
58. See id. at 113-15.
59. Note 43, supra.
60. See e.g., Stephen LaTour, Pauline Houlden, Laurens Walker & John Thibaut, Some Determinants of Preference for Modes of Conflict Resolution, 20 J. CONFLICT RESOL. 319 (1976) (finding that arbitration was generally the most preferred procedure); Pauline Houlden et al., Preference for Modes of Dispute Resolution as a Function of Process and Decision Control, 14 J. EXP. SOC. PSYCHOL. 13, 29 (1978)(concluding that the most preferred procedure corresponded to arbitration). Research has also suggested that procedures that are more adjudicative are regarded as more fair, more satisfying, more accurate and unbiased from a post-experience perspective. See e.g., Allan Lind, Susan Kurtz, Linda Musante, Laurens Walker & John Thibaut, Procedure and Outcome Effects on Reactions to Adjudicated Resolution of Conflicts of Interest, 39 J. PERSONALITY & SOC. PSYCHOL. 643 (1980).
61. See e.g., Stephen LaTour, Pauline Houlden, Laurens Walker & John Thibaut, Some Determinants of Preference for Modes of Conflict Resolution, 20 J. CONFLICT RESOL. 319 (1976) (finding that arbitration was generally the most preferred procedure); Pauline Houlden et al., Preference for Modes of Dispute Resolution as a Function of Process and Decision Control, 14 J. EXP. SOC. PSYCHOL. 13, 29 (1978)(concluding that the most preferred procedure corresponded to arbitration). Research has also suggested that procedures that are more adjudicative are regarded as more fair, more satisfying, more accurate and unbiased from a post-experience perspective. See e.g., Allan Lind, Susan Kurtz, Linda Musante, Laurens Walker & John Thibaut, Procedure and Outcome Effects on Reactions to Adjudicated Resolution of Conflicts of Interest, 39 J. PERSONALITY & SOC. PSYCHOL. 643 (1980).
62. See e.g., Stephen LaTour, Pauline Houlden, Laurens Walker & John Thibaut, Some Determinants of Preference for Modes of Conflict Resolution, 20 J. CONFLICT RESOL. 319 (1976) (finding that arbitration was generally the most preferred procedure); Pauline Houlden et al., Preference for Modes of Dispute Resolution as a Function of Process and Decision Control, 14 J. EXP. SOC. PSYCHOL. 13, 29 (1978)(concluding that the most preferred procedure corresponded to arbitration). Research has also suggested that procedures that are more adjudicative are regarded as more fair, more satisfying, more accurate and unbiased from a post-experience perspective. See e.g., Allan Lind, Susan Kurtz, Linda Musante, Laurens Walker & John Thibaut, Procedure and Outcome Effects on Reactions to Adjudicated Resolution of Conflicts of Interest, 39 J. PERSONALITY & SOC. PSYCHOL. 643 (1980).
63. Kwok Leung, Some Determinants of Reactions to Procedural Models for Conflict Resolution: A Cross-National Study, 53 J. PERSONALITY & SOC. PSYCHOL 898, 903 (1987) (noting that although participants equally preferred the arbitration-like procedure and mediation, participants might have interpreted the conflict which resulted from a traffic accident as equally manageable by both procedures and thus did not show a strong preference for either one).
64. Ibid. Id.
65. Robert S. Peirce, Dean G. Pruitt, & Sally J. Czaja, Complainant-Respondent Differences in Procedural Choice, 4 INT'L J. CONFLICT MGMT. 199, 204-06 (1993) (finding that the modal sequence of procedural choices was: negotiation, mediation, advisory arbitration, arbitration and then "struggle," which was defined as "pressure tactics ... employed in an effort to get the other party to give in," Id. at 200).
66. Robert S. Peirce, Dean G. Pruitt, & Sally J. Czaja, Complainant-Respondent Differences in Procedural Choice, 4 INT'L J. CONFLICT MGMT. 199, 204-06 (1993) (finding that the modal sequence of procedural choices was: negotiation, mediation, advisory arbitration, arbitration and then "struggle," which was defined as "pressure tactics ... employed in an effort to get the other party to give in," Id. at 200).
67. The moot was described as an informal procedure in which all disputants discuss the problem informally and make a unanimous decision. Stephen LaTour, Pauline Houlden, Laurens Walker & John Thibaut, Some Determinants of Preference for Modes of Conflict Resolution, 20 J. CONFLICT RESOL. 319, 320 (1976).
68. Larry Heuer & Steven Penrod, Procedural Preference as a Function of Conflict Intensity, 51 J. PERSONALITY & SOC. PSYCHOL. 700, 704 (1986). See also Lind, Thibaut & Walker, Discovery and Presentation of Evidence in Adversary and Nonadversary Proceedings, 71 MICH. L. REV. 1129, 1143 (1973); William Austin, Thomas Williams, Stephen Worchel, Allison Adler Wentzel & Daniel Siegel, Effect of Mode of Adjudication, Presence of Defense Counsel, and Favorability of Verdict on Observers' Evaluation of a Criminal Trial, 11 J. APPLIED SOC. PSYCHOL. 281, 297 (1981) (finding that defendants are least satisfied when an adjudicative procedure yields an unfavorable outcome, thereby contradicting previous studies which suggest that adjudicative procedures are the most preferred dispute resolution procedure within all outcome conditions). In addition, many post-experience party satisfaction studies show that ADR processes rate higher than court procedures. See, e.g., Tom R. Tyler, The Psychology of Disputant Concerns in Mediation, 1987 NEGOTIATION J. 367, 372 (discussing disputants' preferences for ADR processes over traditional court procedures). See generally ALLAN E. LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (1988). Studies of which procedures people actually end up using to resolve their problems have yielded similar results. In a study about how people chose to resolve a "real interpersonal dispute" they had "recently experienced," for example, 87.4% of respondents reported using persuasion or negotiation more than the third-party procedures (i.e., mediation and arbitration). E. Allan Lind, Tom R. Tyler & Yuen J. Huo, Procedural Context and Culture: Variation in the Antecedents of procedural Justice Judgments, 73 J. PERSONALITY & SOC. PSYCHOL. 767 (1997). But note that participants were free to discuss a nonlegal dispute. Also, this study concerned procedural choices (which may be a function of resources such as time or money) rather than procedural preferences (which probe at people's ideal methods for resolving a dispute).
69. Larry Heuer & Steven Penrod, Procedural Preference as a Function of Conflict Intensity, 51 J. PERSONALITY & SOC. PSYCHOL. 700, 704 (1986). See also Lind, Thibaut & Walker, Discovery and Presentation of Evidence in Adversary and Nonadversary Proceedings, 71 MICH. L. REV. 1129, 1143 (1973); William Austin, Thomas Williams, Stephen Worchel, Allison Adler Wentzel & Daniel Siegel, Effect of Mode of Adjudication, Presence of Defense Counsel, and Favorability of Verdict on Observers' Evaluation of a Criminal Trial, 11 J. APPLIED SOC. PSYCHOL. 281, 297 (1981) (finding that defendants are least satisfied when an adjudicative procedure yields an unfavorable outcome, thereby contradicting previous studies which suggest that adjudicative procedures are the most preferred dispute resolution procedure within all outcome conditions). In addition, many post-experience party satisfaction studies show that ADR processes rate higher than court procedures. See, e.g., Tom R. Tyler, The Psychology of Disputant Concerns in Mediation, 1987 NEGOTIATION J. 367, 372 (discussing disputants' preferences for ADR processes over traditional court procedures). See generally ALLAN E. LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (1988). Studies of which procedures people actually end up using to resolve their problems have yielded similar results. In a study about how people chose to resolve a "real interpersonal dispute" they had "recently experienced," for example, 87.4% of respondents reported using persuasion or negotiation more than the third-party procedures (i.e., mediation and arbitration). E. Allan Lind, Tom R. Tyler & Yuen J. Huo, Procedural Context and Culture: Variation in the Antecedents of procedural Justice Judgments, 73 J. PERSONALITY & SOC. PSYCHOL. 767 (1997). But note that participants were free to discuss a nonlegal dispute. Also, this study concerned procedural choices (which may be a function of resources such as time or money) rather than procedural preferences (which probe at people's ideal methods for resolving a dispute).
70. Larry Heuer & Steven Penrod, Procedural Preference as a Function of Conflict Intensity, 51 J. PERSONALITY & SOC. PSYCHOL. 700, 704 (1986). See also Lind, Thibaut & Walker, Discovery and Presentation of Evidence in Adversary and Nonadversary Proceedings, 71 MICH. L. REV. 1129, 1143 (1973); William Austin, Thomas Williams, Stephen Worchel, Allison Adler Wentzel & Daniel Siegel, Effect of Mode of Adjudication, Presence of Defense Counsel, and Favorability of Verdict on Observers' Evaluation of a Criminal Trial, 11 J. APPLIED SOC. PSYCHOL. 281, 297 (1981) (finding that defendants are least satisfied when an adjudicative procedure yields an unfavorable outcome, thereby contradicting previous studies which suggest that adjudicative procedures are the most preferred dispute resolution procedure within all outcome conditions). In addition, many post-experience party satisfaction studies show that ADR processes rate higher than court procedures. See, e.g., Tom R. Tyler, The Psychology of Disputant Concerns in Mediation, 1987 NEGOTIATION J. 367, 372 (discussing disputants' preferences for ADR processes over traditional court procedures). See generally ALLAN E. LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (1988). Studies of which procedures people actually end up using to resolve their problems have yielded similar results. In a study about how people chose to resolve a "real interpersonal dispute" they had "recently experienced," for example, 87.4% of respondents reported using persuasion or negotiation more than the third-party procedures (i.e., mediation and arbitration). E. Allan Lind, Tom R. Tyler & Yuen J. Huo, Procedural Context and Culture: Variation in the Antecedents of procedural Justice Judgments, 73 J. PERSONALITY & SOC. PSYCHOL. 767 (1997). But note that participants were free to discuss a nonlegal dispute. Also, this study concerned procedural choices (which may be a function of resources such as time or money) rather than procedural preferences (which probe at people's ideal methods for resolving a dispute).
71. Larry Heuer & Steven Penrod, Procedural Preference as a Function of Conflict Intensity, 51 J. PERSONALITY & SOC. PSYCHOL. 700, 704 (1986). See also Lind, Thibaut & Walker, Discovery and Presentation of Evidence in Adversary and Nonadversary Proceedings, 71 MICH. L. REV. 1129, 1143 (1973); William Austin, Thomas Williams, Stephen Worchel, Allison Adler Wentzel & Daniel Siegel, Effect of Mode of Adjudication, Presence of Defense Counsel, and Favorability of Verdict on Observers' Evaluation of a Criminal Trial, 11 J. APPLIED SOC. PSYCHOL. 281, 297 (1981) (finding that defendants are least satisfied when an adjudicative procedure yields an unfavorable outcome, thereby contradicting previous studies which suggest that adjudicative procedures are the most preferred dispute resolution procedure within all outcome conditions). In addition, many post-experience party satisfaction studies show that ADR processes rate higher than court procedures. See, e.g., Tom R. Tyler, The Psychology of Disputant Concerns in Mediation, 1987 NEGOTIATION J. 367, 372 (discussing disputants' preferences for ADR processes over traditional court procedures). See generally ALLAN E. LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (1988). Studies of which procedures people actually end up using to resolve their problems have yielded similar results. In a study about how people chose to resolve a "real interpersonal dispute" they had "recently experienced," for example, 87.4% of respondents reported using persuasion or negotiation more than the third-party procedures (i.e., mediation and arbitration). E. Allan Lind, Tom R. Tyler & Yuen J. Huo, Procedural Context and Culture: Variation in the Antecedents of procedural Justice Judgments, 73 J. PERSONALITY & SOC. PSYCHOL. 767 (1997). But note that participants were free to discuss a nonlegal dispute. Also, this study concerned procedural choices (which may be a function of resources such as time or money) rather than procedural preferences (which probe at people's ideal methods for resolving a dispute).
72. Larry Heuer & Steven Penrod, Procedural Preference as a Function of Conflict Intensity, 51 J. PERSONALITY & SOC. PSYCHOL. 700, 704 (1986). See also Lind, Thibaut & Walker, Discovery and Presentation of Evidence in Adversary and Nonadversary Proceedings, 71 MICH. L. REV. 1129, 1143 (1973); William Austin, Thomas Williams, Stephen Worchel, Allison Adler Wentzel & Daniel Siegel, Effect of Mode of Adjudication, Presence of Defense Counsel, and Favorability of Verdict on Observers' Evaluation of a Criminal Trial, 11 J. APPLIED SOC. PSYCHOL. 281, 297 (1981) (finding that defendants are least satisfied when an adjudicative procedure yields an unfavorable outcome, thereby contradicting previous studies which suggest that adjudicative procedures are the most preferred dispute resolution procedure within all outcome conditions). In addition, many post-experience party satisfaction studies show that ADR processes rate higher than court procedures. See, e.g., Tom R. Tyler, The Psychology of Disputant Concerns in Mediation, 1987 NEGOTIATION J. 367, 372 (discussing disputants' preferences for ADR processes over traditional court procedures). See generally ALLAN E. LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (1988). Studies of which procedures people actually end up using to resolve their problems have yielded similar results. In a study about how people chose to resolve a "real interpersonal dispute" they had "recently experienced," for example, 87.4% of respondents reported using persuasion or negotiation more than the third-party procedures (i.e., mediation and arbitration). E. Allan Lind, Tom R. Tyler & Yuen J. Huo, Procedural Context and Culture: Variation in the Antecedents of procedural Justice Judgments, 73 J. PERSONALITY & SOC. PSYCHOL. 767 (1997). But note that participants were free to discuss a nonlegal dispute. Also, this study concerned procedural choices (which may be a function of resources such as time or money) rather than procedural preferences (which probe at people's ideal methods for resolving a dispute).
73. Larry Heuer & Steven Penrod, Procedural Preference as a Function of Conflict Intensity, 51 J. PERSONALITY & SOC. PSYCHOL. 700, 704 (1986). See also Lind, Thibaut & Walker, Discovery and Presentation of Evidence in Adversary and Nonadversary Proceedings, 71 MICH. L. REV. 1129, 1143 (1973); William Austin, Thomas Williams, Stephen Worchel, Allison Adler Wentzel & Daniel Siegel, Effect of Mode of Adjudication, Presence of Defense Counsel, and Favorability of Verdict on Observers' Evaluation of a Criminal Trial, 11 J. APPLIED SOC. PSYCHOL. 281, 297 (1981) (finding that defendants are least satisfied when an adjudicative procedure yields an unfavorable outcome, thereby contradicting previous studies which suggest that adjudicative procedures are the most preferred dispute resolution procedure within all outcome conditions). In addition, many post-experience party satisfaction studies show that ADR processes rate higher than court procedures. See, e.g., Tom R. Tyler, The Psychology of Disputant Concerns in Mediation, 1987 NEGOTIATION J. 367, 372 (discussing disputants' preferences for ADR processes over traditional court procedures). See generally ALLAN E. LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (1988). Studies of which procedures people actually end up using to resolve their problems have yielded similar results. In a study about how people chose to resolve a "real interpersonal dispute" they had "recently experienced," for example, 87.4% of respondents reported using persuasion or negotiation more than the third-party procedures (i.e., mediation and arbitration). E. Allan Lind, Tom R. Tyler & Yuen J. Huo, Procedural Context and Culture: Variation in the Antecedents of procedural Justice Judgments, 73 J. PERSONALITY & SOC. PSYCHOL. 767 (1997). But note that participants were free to discuss a nonlegal dispute. Also, this study concerned procedural choices (which may be a function of resources such as time or money) rather than procedural preferences (which probe at people's ideal methods for resolving a dispute).
74. R. Folger, Mediation, arbitration and the psychology of procedural justice. In R. Lewicki, M. Bazerman & B. Sheppard (Eds.), Research on negotiation in organization 57, 58-9. Some researchers have criticized many of the early procedural preference studies for having used the same legal case. See William Austin, Thomas Williams, Stephen Worchel, Allison Adler Wentzel & Daniel Siegel, Effect of Mode of Adjudication, Presence of Defense Counsel, and Favorability of Verdict on Observers' Evaluation of a Criminal Trial, 11 J. APPLIED SOC. PSYCHOL. 281, 284 (1981) (criticizing the work of Thibaut and Walker). Other observers, summarizing some of the main criticisms of Thibaut and Walker's research, have argued: "The basic problem is that most prior empirical work does not seem to have been designed in a manner that could identify or quantify actual tastes for procedures ... The points to be noted include the following: preference rankings in hypothetical laboratory settings give no evidence about the magnitude of any preference; the questions participants answer are ambiguous in many respects (for example, the procedure on which opinions are being elicited is often unclear, and it is difficult to determine whether the opinions offered indicate the presence of a taste, a belief about what advances self-interest, or a view about what is good policy); the source of any taste is difficult to discern (for example, respondents are described as liking direct participation, yet they actually choose schemes in which lawyers stand between them and the decisionmaker); and there is little attempt to reconcile the interpretations with real-world behavior (such as the frequency of settlement and the use and design of alternative dispute resolution mechanisms). Also, many of these studies mean to address the distinction between adversarial and inquisitorial systems, but the actual differences between those systems do not appear to correspond to what was in fact studied." Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 HARV. L. REV. 961, 1388 (2001).
75. R. Folger, Mediation, arbitration and the psychology of procedural justice. In R. Lewicki, M. Bazerman & B. Sheppard (Eds.), Research on negotiation in organization 57, 58-9. Some researchers have criticized many of the early procedural preference studies for having used the same legal case. See William Austin, Thomas Williams, Stephen Worchel, Allison Adler Wentzel & Daniel Siegel, Effect of Mode of Adjudication, Presence of Defense Counsel, and Favorability of Verdict on Observers' Evaluation of a Criminal Trial, 11 J. APPLIED SOC. PSYCHOL. 281, 284 (1981) (criticizing the work of Thibaut and Walker). Other observers, summarizing some of the main criticisms of Thibaut and Walker's research, have argued: "The basic problem is that most prior empirical work does not seem to have been designed in a manner that could identify or quantify actual tastes for procedures ... The points to be noted include the following: preference rankings in hypothetical laboratory settings give no evidence about the magnitude of any preference; the questions participants answer are ambiguous in many respects (for example, the procedure on which opinions are being elicited is often unclear, and it is difficult to determine whether the opinions offered indicate the presence of a taste, a belief about what advances self-interest, or a view about what is good policy); the source of any taste is difficult to discern (for example, respondents are described as liking direct participation, yet they actually choose schemes in which lawyers stand between them and the decisionmaker); and there is little attempt to reconcile the interpretations with real-world behavior (such as the frequency of settlement and the use and design of alternative dispute resolution mechanisms). Also, many of these studies mean to address the distinction between adversarial and inquisitorial systems, but the actual differences between those systems do not appear to correspond to what was in fact studied." Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 HARV. L. REV. 961, 1388 (2001).
76. R. Folger, Mediation, arbitration and the psychology of procedural justice. In R. Lewicki, M. Bazerman & B. Sheppard (Eds.), Research on negotiation in organization 57, 58-9. Some researchers have criticized many of the early procedural preference studies for having used the same legal case. See William Austin, Thomas Williams, Stephen Worchel, Allison Adler Wentzel & Daniel Siegel, Effect of Mode of Adjudication, Presence of Defense Counsel, and Favorability of Verdict on Observers' Evaluation of a Criminal Trial, 11 J. APPLIED SOC. PSYCHOL. 281, 284 (1981) (criticizing the work of Thibaut and Walker). Other observers, summarizing some of the main criticisms of Thibaut and Walker's research, have argued: "The basic problem is that most prior empirical work does not seem to have been designed in a manner that could identify or quantify actual tastes for procedures ... The points to be noted include the following: preference rankings in hypothetical laboratory settings give no evidence about the magnitude of any preference; the questions participants answer are ambiguous in many respects (for example, the procedure on which opinions are being elicited is often unclear, and it is difficult to determine whether the opinions offered indicate the presence of a taste, a belief about what advances self-interest, or a view about what is good policy); the source of any taste is difficult to discern (for example, respondents are described as liking direct participation, yet they actually choose schemes in which lawyers stand between them and the decisionmaker); and there is little attempt to reconcile the interpretations with real-world behavior (such as the frequency of settlement and the use and design of alternative dispute resolution mechanisms). Also, many of these studies mean to address the distinction between adversarial and inquisitorial systems, but the actual differences between those systems do not appear to correspond to what was in fact studied." Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 HARV. L. REV. 961, 1388 (2001).
77. John Thibaut, Laurens Walker, Stephen LaTour & Pauline Houlden, Procedural Justice as Fairness, 26 STAN. L. REV. 1271, 1276 (1974).
78. Stephen LaTour, Pauline Houlden, Laurens Walker & John Thibaut, Procedure: Transnational perspectives and preferences, 86 YALE L. J. 258 (1976).
79. Larry Heuer & Steven Penrod, Procedural Preference as a Function of Conflict Intensity, 51 J. PERSONALITY & SOC. PSYCHOL. 700, 704 (1986).
80. See Robert S. Peirce, Dean G. Pruitt, & Sally J. Czaja, Complainant-Respondent Differences in Procedural Choice, 4 INT'L J. CONFLICT MGMT. 199, 201 (1993). As Judith Resnik argues: "What makes [arbitration] not adjudication is that the proceeding is not conducted by a state-employed individual who bears the title 'judge,' formal evidentiary rules do not apply, and opinions are often not written. It is, however, important to keep in mind that this process shares with adjudication a commitment to a case-specific outcome made by a third-party and predicated upon an inquiry into the claims of fact made by disputants." Judith Resnik, Many doors? Closing doors? Alternative dispute resolution and adjudication, 10 OHIO ST. J. ON DISP. RESOL. 211, 218-20 (1995).
81. See Robert S. Peirce, Dean G. Pruitt, & Sally J. Czaja, Complainant-Respondent Differences in Procedural Choice, 4 INT'L J. CONFLICT MGMT. 199, 201 (1993). As Judith Resnik argues: "What makes [arbitration] not adjudication is that the proceeding is not conducted by a state-employed individual who bears the title 'judge,' formal evidentiary rules do not apply, and opinions are often not written. It is, however, important to keep in mind that this process shares with adjudication a commitment to a case-specific outcome made by a third-party and predicated upon an inquiry into the claims of fact made by disputants." Judith Resnik, Many doors? Closing doors? Alternative dispute resolution and adjudication, 10 OHIO ST. J. ON DISP. RESOL. 211, 218-20 (1995).
82. R. Folger, Mediation, arbitration and the psychology of procedural justice. In R. Lewicki, M. Bazerman & B. Sheppard (Eds.), Research on negotiation in organization 58-60 (1986).
83. See Robert S. Peirce, Dean G. Pruitt, & Sally J. Czaja, Complainant-Respondent Differences in Procedural Choice, 4 INT'L J. CONFLICT MGMT. 199, 201 (1993) (and references cited therein).
84. Id. at 209.
85. Larry Heuer & Steven Penrod, Procedural Preference as a Function of Conflict Intensity, 51 J. PERSONALITY & SOC. PSYCHOL. 700, 704 (1986).
86. Kwok Leung, Michael H. Bond, D. William Carment & Lila Krishnan, Effects of Cultural Femininity on Preference for Methods of Conflict Processing: A Cross-Cultural Study, 26 J. EXPERIMENTAL SOC. PSYCHOL. 373 (1990).
87. R. Folger, Mediation, arbitration and the psychology of procedural justice. In R. Lewicki, M. Bazerman & B. Sheppard (Eds.), Research on negotiation in organization 57, 59; Robert S. Peirce, Dean G. Pruitt, & Sally J. Czaja, Complainant-Respondent Differences in Procedural Choice, 4 INT'L J. CONFLICT MGMT. 199, 201 (1993).
88. R. Folger, Mediation, arbitration and the psychology of procedural justice. In R. Lewicki, M. Bazerman & B. Sheppard (Eds.), Research on negotiation in organization 57, 59; Robert S. Peirce, Dean G. Pruitt, & Sally J. Czaja, Complainant-Respondent Differences in Procedural Choice, 4 INT'L J. CONFLICT MGMT. 199, 201 (1993).
89. Id. Legal scholars have made similar observations with respect to arbitration, see, e.g., Daniel Bodansky, Customary (and Not So Customary) International Environmental Law, 3 IND. J. GLOBAL LEGAL STUD. 105, 116-17 (1995) (stating that the distinction between legal and non-legal norms is important in arbitration since only legal norms will be enforced) and mediation, see, e.g., Carrie A. Bond, Shattering the Myth: Mediating Sexual Harassment Disputes in the Workplace, 65 FORDHAM L. REV. 2489, 2511 (1997) (explaining that mediation can be used for non-legal issues).
90. Id. Legal scholars have made similar observations with respect to arbitration, see, e.g., Daniel Bodansky, Customary (and Not So Customary) International Environmental Law, 3 IND. J. GLOBAL LEGAL STUD. 105, 116-17 (1995) (stating that the distinction between legal and non-legal norms is important in arbitration since only legal norms will be enforced) and mediation, see, e.g., Carrie A. Bond, Shattering the Myth: Mediating Sexual Harassment Disputes in the Workplace, 65 FORDHAM L. REV. 2489, 2511 (1997) (explaining that mediation can be used for non-legal issues).
91. Id. Legal scholars have made similar observations with respect to arbitration, see, e.g., Daniel Bodansky, Customary (and Not So Customary) International Environmental Law, 3 IND. J. GLOBAL LEGAL STUD. 105, 116-17 (1995) (stating that the distinction between legal and non-legal norms is important in arbitration since only legal norms will be enforced) and mediation, see, e.g., Carrie A. Bond, Shattering the Myth: Mediating Sexual Harassment Disputes in the Workplace, 65 FORDHAM L. REV. 2489, 2511 (1997) (explaining that mediation can be used for non-legal issues).
92. Kwok Leung, Some Determinants of Reactions to Procedural Models for Conflict Resolution: A Cross-National Study, 53 J. PERSONALITY & SOC. PSYCHOL. 898, 903 (1987) (noting that although participants equally preferred adversary procedure and mediation the participants might have interpreted the conflict which resulted from a traffic accident as equally manageable by both procedures and thus did not show a strong preference for either one).
93. Robert S. Peirce, Dean G. Pruitt, & Sally J. Czaja, Complainant-Respondent Differences in Procedural Choice, 4 INT'L J. CONFLICT MGMT. 199, 204-06 (1993) (finding, in study 1, that the modal sequence of procedural choices was: negotiation, mediation, advisory arbitration, arbitration and then "struggle," which was defined as "pressure tactics ... employed in an effort to get the other party to give in," Id. at 200).
94. Robert S. Peirce, Dean G. Pruitt, & Sally J. Czaja, Complainant-Respondent Differences in Procedural Choice, 4 INT'L J. CONFLICT MGMT. 199, 204-06 (1993) (finding, in study 1, that the modal sequence of procedural choices was: negotiation, mediation, advisory arbitration, arbitration and then "struggle," which was defined as "pressure tactics ... employed in an effort to get the other party to give in," Id. at 200).
95. Id. at 208. See e.g., Tom R. Tyler, Multiculturalism and the Willingness of Citizens to Defer to Law and to Legal Authorities, 25 LAW & SOC. INQUIRY 983 (2000) (stating that landlord-tenant disputes are handled in small-claims courts); Rebecca E. Zietlow, Beyond the Pronoun: Toward an Anti-Subordinating Method of Process, 10 TEX. J. WOMEN & L. 1 fn. 80 (2000) (discussing frequency of cases in particular landlord-tenant courts).
96. Id. at 208. See e.g., Tom R. Tyler, Multiculturalism and the Willingness of Citizens to Defer to Law and to Legal Authorities, 25 LAW & SOC. INQUIRY 983 (2000) (stating that landlord-tenant disputes are handled in small-claims courts); Rebecca E. Zietlow, Beyond the Pronoun: Toward an Anti-Subordinating Method of Process, 10 TEX. J. WOMEN & L. 1 fn. 80 (2000) (discussing frequency of cases in particular landlord-tenant courts).
97. Id. at 208. See e.g., Tom R. Tyler, Multiculturalism and the Willingness of Citizens to Defer to Law and to Legal Authorities, 25 LAW & SOC. INQUIRY 983 (2000) (stating that landlord-tenant disputes are handled in small-claims courts); Rebecca E. Zietlow, Beyond the Pronoun: Toward an Anti-Subordinating Method of Process, 10 TEX. J. WOMEN & L. 1 fn. 80 (2000) (discussing frequency of cases in particular landlord-tenant courts).
98. Stephen LaTour, Pauline Houlden, Laurens Walker & John Thibaut, Some Determinants of Preference for Modes of Conflict Resolution, 20 J. CONFLICT RESOL. 319 (1976).
99. Id. at 331.
100. Supra notes 36-9.
101. They were conducted in 1987 and 1993 respectively. See Kwok Leung, Some Determinants of Reactions to Procedural Models for Conflict Resolution: A Cross-National Study, 53 J. PERSONALITY & SOC. PSYCHOL. 898, 903 (1987); Robert S. Peirce, Dean G. Pruitt, & Sally J. Czaja, Complainant-Respondent Differences in Procedural Choice, 4 INT'L J. CONFLICT MGMT. 199, 204-06 (1993).
102. They were conducted in 1987 and 1993 respectively. See Kwok Leung, Some Determinants of Reactions to Procedural Models for Conflict Resolution: A Cross-National Study, 53 J. PERSONALITY & SOC. PSYCHOL. 898, 903 (1987); Robert S. Peirce, Dean G. Pruitt, & Sally J. Czaja, Complainant-Respondent Differences in Procedural Choice, 4 INT'L J. CONFLICT MGMT. 199, 204-06 (1993).
103. JOHN THIBAUT & LAURENS WALKER, PROCEDURAL JUSTICE 44-45 (1975). More recent research has suggested broader frameworks for evaluating the justice of procedures. See e.g., Gerald S. Leventhal, What Should Be Done with Equity Theory? New Approaches to the Study of Fairness in Social Relationships, in SOCIAL EXCHANGE: ADVANCES IN THEORY AND RESEARCH 27 (1980) (suggesting that evaluations use six justice criteria - ethicality, opportunities for representation, bias, honesty, decision accuracy and correctability of decisions); Tom R. Tyler, What is Procedural Justice?: Criteria Used by Citizens to Assess the Fairness of Legal Procedures, 22 LAW & SOC'Y REV. 103, 106 (1988) (Tyler noted that Thibaut and Walker's process control and decision control criteria are compatible with Leventhal's representation criterion. He therefore combined representation with Leventhal's criteria and used the following eight criteria to assess judgments of procedural fairness: representation, consistency, lack of bias, honesty, effort to be fair, quality of decisions, correctability, and ethicality).
104. JOHN THIBAUT & LAURENS WALKER, PROCEDURAL JUSTICE 44-45 (1975). More recent research has suggested broader frameworks for evaluating the justice of procedures. See e.g., Gerald S. Leventhal, What Should Be Done with Equity Theory? New Approaches to the Study of Fairness in Social Relationships, in SOCIAL EXCHANGE: ADVANCES IN THEORY AND RESEARCH 27 (1980) (suggesting that evaluations use six justice criteria - ethicality, opportunities for representation, bias, honesty, decision accuracy and correctability of decisions); Tom R. Tyler, What is Procedural Justice?: Criteria Used by Citizens to Assess the Fairness of Legal Procedures, 22 LAW & SOC'Y REV. 103, 106 (1988) (Tyler noted that Thibaut and Walker's process control and decision control criteria are compatible with Leventhal's representation criterion. He therefore combined representation with Leventhal's criteria and used the following eight criteria to assess judgments of procedural fairness: representation, consistency, lack of bias, honesty, effort to be fair, quality of decisions, correctability, and ethicality).
105. JOHN THIBAUT & LAURENS WALKER, PROCEDURAL JUSTICE 44-45 (1975). More recent research has suggested broader frameworks for evaluating the justice of procedures. See e.g., Gerald S. Leventhal, What Should Be Done with Equity Theory? New Approaches to the Study of Fairness in Social Relationships, in SOCIAL EXCHANGE: ADVANCES IN THEORY AND RESEARCH 27 (1980) (suggesting that evaluations use six justice criteria - ethicality, opportunities for representation, bias, honesty, decision accuracy and correctability of decisions); Tom R. Tyler, What is Procedural Justice?: Criteria Used by Citizens to Assess the Fairness of Legal Procedures, 22 LAW & SOC'Y REV. 103, 106 (1988) (Tyler noted that Thibaut and Walker's process control and decision control criteria are compatible with Leventhal's representation criterion. He
106. Ibid. Id.
107. Studies have suggested that people tend to prefer procedures that allow disputants to maintain high process control but grant decision control to a third-party. The relationship of third-party decision control to disputant preference for a method of conflict resolution may be deduced from the study by LaTour and his colleagues which found that, when procedures were arranged in order of overall "third-party control," preferences were not linearly related to the ordering of these procedures. Stephen LaTour, Pauline Houlden, Laurens Walker & John Thibaut, Some Determinants of Preference for Modes of Conflict Resolution, 20 J. CONFLICT RESOL. 319 (1976). Rather, preferences seemed to increase as a function of both decreasing third-party control over the presentation of evidence and increasing third-party control over the final decisions. Id. See also Pauline Houlden et al., Preference for Modes of Dispute Resolution as a Function of Process and Decision Control, 14 J. EXP. SOC. PSYCHOL. 13 (1978) (concluding that to maximize procedural preferences of both third parties and disputants, decision control should rest with third parties and litigants should control the process of presenting evidence).
108. Studies have suggested that people tend to prefer procedures that allow disputants to maintain high process control but grant decision control to a third-party. The relationship of third-party decision control to disputant preference for a method of conflict resolution may be deduced from the study by LaTour and his colleagues which found that, when procedures were arranged in order of overall "third-party control," preferences were not linearly related to the ordering of these procedures. Stephen LaTour, Pauline Houlden, Laurens Walker & John Thibaut, Some Determinants of Preference for Modes of Conflict Resolution, 20 J. CONFLICT RESOL. 319 (1976). Rather, preferences seemed to increase as a function of both decreasing third-party control over the presentation of evidence and increasing third-party control over the final decisions. Id. See also Pauline Houlden et al., Preference for Modes of Dispute Resolution as a Function of Process and Decision Control, 14 J. EXP. SOC. PSYCHOL. 13 (1978) (concluding that to maximize procedural preferences of both third parties and disputants, decision control should rest with third parties and litigants should control the process of presenting evidence).
109. Studies have suggested that people tend to prefer procedures that allow disputants to maintain high process control but grant decision control to a third-party. The relationship of third-party decision control to disputant preference for a method of conflict resolution may be deduced from the study by LaTour and his colleagues which found that, when procedures were arranged in order of overall "third-party control," preferences were not linearly related to the ordering of these procedures. Stephen LaTour, Pauline Houlden, Laurens Walker & John Thibaut, Some Determinants of Preference for Modes of Conflict Resolution, 20 J. CONFLICT RESOL. 319 (1976). Rather, preferences seemed to increase as a function of both decreasing third-party control over the presentation of evidence and increasing third-party control over the final decisions. Id. See also Pauline Houlden et al., Preference for Modes of Dispute Resolution as a Function of Process and Decision Control, 14 J. EXP. SOC. PSYCHOL. 13 (1978) (concluding that to maximize procedural preferences of both third parties and disputants, decision control should rest with third parties and litigants should control the process of presenting evidence).
110. See, e.g., Pauline Houlden, Stephen LaTour, Laurens Walker & John Thibaut, Preference for Modes of Dispute Resolution as a Function of Process and Decision Control, 14 J. EXP. SOC. PSYCHOL. 13, 15, 21 (1978).
111. Decision control has also been operationalized as the opportunity to reject the decision put forth by a third-party. See E. A. Lind, R. I. Lissak & D. E. Conlon, Decision Control and Process Control Effects on Procedural Fairness Judgments, 13 J. APPLIED SOC. PSYCHOL. 338 (1983).
112. LAURENCE BOULLE, MEDIATION: PRINCIPLES, PROCESS AND PRACTICE 38 (1996).
113. KENNETH KRESSEL, DEAN G. PRUITT AND ASSOCIATES. MEDIATION RESEARCH: THE PROCESS AND EFFECTIVENESS OF THIRD-PARTY INTERVENTION 60 (1989) ("The fact that mediators are free from the judicial obligation to decide cases allows them to explore with the parties a wider range of moral and practical standards for arriving at outcomes ... [mediators] can help parties to ... identify a range of competing but relevant values for decisions").
114. As Laurence Boulle points out, there are some constraints on the ability of parties to use self-selected rules. LAURENCE BOULLE, MEDIATION: PRINCIPLES, PROCESS AND PRACTICE 38 (1996). For example, insofar as certain rules may lead to an illegal agreement or one that counters public policy as provided by statute or common law, then the disputants might be prohibited from using such rules. In addition, from a pragmatic standpoint, "where a third party intervenes in a dispute, whether as umpire or mediator, he or she will inevitably cause it to incline more towards the application of objective norms." Id. at 38-39. Moreover, some emerging standards for mediators may also impose upon them duties to raise questions as to equity, fairness and feasibility of proposed agreements in ways that might indirectly limit parties' ability to control their ADR procedure. See The Association of Family and Conciliation Courts' Model Standards of Practice for Family and Divorce Mediation, Clauses IIA & III. These standards might also require mediators to ensure consideration of the interests of children and other affected third parties. See, e.g., Ethical Standards of Professional Responsibility for the Society of Professionals in Dispute Resolution, quoted in N. H. Rogers & C.A. McEwen, Mediation: Law Policy Practice (1989 and 1990 Cumulative Supplement 825-26). Even in arbitration, where it is relatively common for parties to choose the laws that will apply to the resolution of their dispute, these freedoms are limited in that they must not violate policies of the Federal Arbitration Act. See Kevin A. Sullivan, The Problems of Permitting Expanded Judicial Review of Arbitration Awards under the Federal Arbitration Act, 46 ST. LOUIS U. L.J. 509, 528 (2002).
115. As Laurence Boulle points out, there are some constraints on the ability of parties to use self-selected rules. LAURENCE BOULLE, MEDIATION: PRINCIPLES, PROCESS AND PRACTICE 38 (1996). For example, insofar as certain rules may lead to an illegal agreement or one that counters public policy as provided by statute or common law, then the disputants might be prohibited from using such rules. In addition, from a pragmatic standpoint, "where a third party intervenes in a dispute, whether as umpire or mediator, he or she will inevitably cause it to incline more towards the application of objective norms." Id. at 38-39. Moreover, some emerging standards for mediators may also impose upon them duties to raise questions as to equity, fairness and feasibility of proposed agreements in ways that might indirectly limit parties' ability to control their ADR procedure. See The Association of Family and Conciliation Courts' Model Standards of Practice for Family and Divorce Mediation, Clauses IIA & III. These standards might also require mediators to ensure consideration of the interests of children and other affected third parties. See, e.g., Ethical Standards of Professional Responsibility for the Society of Professionals in Dispute Resolution, quoted in N. H. Rogers & C.A. McEwen, Mediation: Law Policy Practice (1989 and 1990 Cumulative Supplement 825-26). Even in arbitration, where it is relatively common for parties to choose the laws that will apply to the resolution of their dispute, these freedoms are limited in that they must not violate policies of the Federal Arbitration Act. See Kevin A. Sullivan, The Problems of Permitting Expanded Judicial Review of Arbitration Awards under the Federal Arbitration Act, 46 ST. LOUIS U. L.J. 509, 528 (2002).
116. As Laurence Boulle points out, there are some constraints on the ability of parties to use self-selected rules. LAURENCE BOULLE, MEDIATION: PRINCIPLES, PROCESS AND PRACTICE 38 (1996). For example, insofar as certain rules may lead to an illegal agreement or one that counters public policy as provided by statute or common law, then the disputants might be prohibited from using such rules. In addition, from a pragmatic standpoint, "where a third party intervenes in a dispute, whether as umpire or mediator, he or she will inevitably cause it to incline more towards the application of objective norms." Id. at 38-39. Moreover, some emerging standards for mediators may also impose upon them duties to raise questions as to equity, fairness and feasibility of proposed agreements in ways that might indirectly limit parties' ability to control their ADR procedure. See The Association of Family and Conciliation Courts' Model Standards of Practice for Family and Divorce Mediation, Clauses IIA & III. These standards might also require mediators to ensure consideration of the interests of children and other affected third parties. See, e.g., Ethical Standards of Professional Responsibility for the Society of Professionals in Dispute Resolution, quoted in N. H. Rogers & C.A. McEwen, Mediation: Law Policy Practice (1989 and 1990 Cumulative Supplement 825-26). Even in arbitration, where it is relatively common for parties to choose the laws that will apply to the resolution of their dispute, these freedoms are limited in that they must not violate policies of the Federal Arbitration Act. See Kevin A. Sullivan, The Problems of Permitting Expanded Judicial Review of Arbitration Awards under the Federal Arbitration Act, 46 ST. LOUIS U. L.J. 509, 528 (2002).
117. As Laurence Boulle points out, there are some constraints on the ability of parties to use self-selected rules. LAURENCE BOULLE, MEDIATION: PRINCIPLES, PROCESS AND PRACTICE 38 (1996). For example, insofar as certain rules may lead to an illegal agreement or one that counters public policy as provided by statute or common law, then the disputants might be prohibited from using such rules. In addition, from a pragmatic standpoint, "where a third party intervenes in a dispute, whether as umpire or mediator, he or she will inevitably cause it to incline more towards the application of objective norms." Id. at 38-39. Moreover, some emerging standards for mediators may also impose upon them duties to raise questions as to equity, fairness and feasibility of proposed agreements in ways that might indirectly limit parties' ability to control their ADR procedure. See The Association of Family and Conciliation Courts' Model Standards of Practice for Family and Divorce Mediation, Clauses IIA & III. These standards might also require mediators to ensure consideration of the interests of children and other affected third parties. See, e.g., Ethical Standards of Professional Responsibility for the Society of Professionals in Dispute Resolution, quoted in N. H. Rogers & C.A. McEwen, Mediation: Law Policy Practice (1989 and 1990 Cumulative Supplement 825-26). Even in arbitration, where it is relatively common for parties to choose the laws that will apply to the resolution of their dispute, these freedoms are limited in that they must not violate policies of the Federal Arbitration Act. See Kevin A. Sullivan, The Problems of Permitting Expanded Judicial Review of Arbitration Awards under the Federal Arbitration Act, 46 ST. LOUIS U. L.J. 509, 528 (2002).
118. As Laurence Boulle points out, there are some constraints on the ability of parties to use self-selected rules. LAURENCE BOULLE, MEDIATION: PRINCIPLES, PROCESS AND PRACTICE 38 (1996). For example, insofar as certain rules may lead to an illegal agreement or one that counters public policy as provided by statute or common law, then the disputants might be prohibited from using such rules. In addition, from a pragmatic standpoint, "where a third party intervenes in a dispute, whether as umpire or mediator, he or she will inevitably cause it to incline more towards the application of objective norms." Id. at 38-39. Moreover, some emerging standards for mediators may also impose upon them duties to raise questions as to equity, fairness and feasibility of proposed agreements in ways that might indirectly limit parties' ability to control their ADR procedure. See The Association of Family and Conciliation Courts' Model Standards of Practice for Family and Divorce Mediation, Clauses IIA & III. These standards might also require mediators to ensure consideration of the interests of children and other affected third parties. See, e.g., Ethical Standards of Professional Responsibility for the Society of Professionals in Dispute Resolution, quoted in N. H. Rogers & C.A. McEwen, Mediation: Law Policy Practice (1989 and 1990 Cumulative Supplement 825-26). Even in arbitration, where it is relatively common for parties to choose the laws that will apply to the resolution of their dispute, these freedoms are limited in that they must not violate policies of the Federal Arbitration Act. See Kevin A. Sullivan, The Problems of Permitting Expanded Judicial Review of Arbitration Awards under the Federal Arbitration Act, 46 ST. LOUIS U. L.J. 509, 528 (2002).
119. Roselle L. Wissler, Mediation and Adjudication in the Small Claims Court: The Effects of Process and Case Characteristics, 29 LAW & SOC'Y REV. 323, 324 (1995).
120. KATHERINE STONE, PRIVATE JUSTICE: THE LAW OF ALTERNATIVE DISPUTE RESOLUTION 4 (2000). See also Mediation Gets High Marks, 52-JAN DISP. RESOL. J (1997). See also James J. Alfini, Trashing, Bashing, and Hashing It Out: Is This the End of "Good Mediation"?, 19 FLA. ST. U. L. REV. 47, 47-50, 73-74 (1991) (noting that many, if not most, mediation professionals define proper or "good" mediation as employing exclusively facilitative approaches).
121. KATHERINE STONE, PRIVATE JUSTICE: THE LAW OF ALTERNATIVE DISPUTE RESOLUTION 4 (2000). See also Mediation Gets High Marks, 52-JAN DISP. RESOL. J (1997). See also James J. Alfini, Trashing, Bashing, and Hashing It Out: Is This the End of "Good Mediation"?, 19 FLA. ST. U. L. REV. 47, 47-50, 73-74 (1991) (noting that many, if not most, mediation professionals define proper or "good" mediation as employing exclusively facilitative approaches).
122. KATHERINE STONE, PRIVATE JUSTICE: THE LAW OF ALTERNATIVE DISPUTE RESOLUTION 4 (2000). See also Mediation Gets High Marks, 52-JAN DISP. RESOL. J (1997). See also James J. Alfini, Trashing, Bashing, and Hashing It Out: Is This the End of "Good Mediation"?, 19 FLA. ST. U. L. REV. 47, 47-50, 73-74 (1991) (noting that many, if not most, mediation professionals define proper or "good" mediation as employing exclusively facilitative approaches).
123. See YAROSLAV SOCHYNSKY, MEDIATION - A GUIDE FOR PRACTITIONERS, CALIFORNIA ADR PRACTICE GUIDE, CH. 12 (AMERICAN LAW INSTITUTE 1996) (pointing out that "One distinguishing characteristic among mediating styles is whether the mediation will be primarily facilitative or evaluative."). Facilitative and evaluative are the most commonly discussed models in the legal-ADR literature, see Jeffrey W. Stempel, Beyond Formalism and False Dichotomies: The Need for Institutionalizing a Flexible Concept of the Mediator's Role, 24 FLA. ST. U. L. REV. 949 note 7 (1997) (providing an extensive list of scholarly work supporting this dichotomy). But see LAURENCE BOULLE, MEDIATION: PRINCIPLES, PROCESS AND PRACTICE 28 (1996) (discussing four models of mediation: settlement, facilitative, therapeutic and evaluative). It is important to note that although this dichotomy is prevalent in the ADR literature, in practice, many mediators blend facilitation and evaluation, applying each approach in varying degrees at different times during the mediation process, depending on the needs of a given case. Robert J. Niemic, Donna Stienstra & Randall E. Ravitz, APPENDIX F. GUIDE TO JUDICIAL MANAGEMENT OF CASES IN ADR, Alternative Dispute Resolution With Forms, Second Edition 2001 Supp., text accompanying note 314.
124. See YAROSLAV SOCHYNSKY, MEDIATION - A GUIDE FOR PRACTITIONERS, CALIFORNIA ADR PRACTICE GUIDE, CH. 12 (AMERICAN LAW INSTITUTE 1996) (pointing out that "One distinguishing characteristic among mediating styles is whether the mediation will be primarily facilitative or evaluative."). Facilitative and evaluative are the most commonly discussed models in the legal-ADR literature, see Jeffrey W. Stempel, Beyond Formalism and False Dichotomies: The Need for Institutionalizing a Flexible Concept of the Mediator's Role, 24 FLA. ST. U. L. REV. 949 note 7 (1997) (providing an extensive list of scholarly work supporting this dichotomy). But see LAURENCE BOULLE, MEDIATION: PRINCIPLES, PROCESS AND PRACTICE 28 (1996) (discussing four models of mediation: settlement, facilitative, therapeutic and evaluative). It is important to note that although this dichotomy is prevalent in the ADR literature, in practice, many mediators blend facilitation and evaluation, applying each approach in varying degrees at different times during the mediation process, depending on the needs of a given case. Robert J. Niemic, Donna Stienstra & Randall E. Ravitz, APPENDIX F. GUIDE TO JUDICIAL MANAGEMENT OF CASES IN ADR, Alternative Dispute Resolution With Forms, Second Edition 2001 Supp., text accompanying note 314.
125. See YAROSLAV SOCHYNSKY, MEDIATION - A GUIDE FOR PRACTITIONERS, CALIFORNIA ADR PRACTICE GUIDE, CH. 12 (AMERICAN LAW INSTITUTE 1996) (pointing out that "One distinguishing characteristic among mediating styles is whether the mediation will be primarily facilitative or evaluative."). Facilitative and evaluative are the most commonly discussed models in the legal-ADR literature, see Jeffrey W. Stempel, Beyond Formalism and False Dichotomies: The Need for Institutionalizing a Flexible Concept of the Mediator's Role, 24 FLA. ST. U. L. REV. 949 note 7 (1997) (providing an extensive list of scholarly work supporting this dichotomy). But see LAURENCE BOULLE, MEDIATION: PRINCIPLES, PROCESS AND PRACTICE 28 (1996) (discussing four models of mediation: settlement, facilitative, therapeutic and evaluative). It is important to note that although this dichotomy is prevalent in the ADR literature, in practice, many mediators blend facilitation and evaluation, applying each approach in varying degrees at different times during the mediation process, depending on the needs of a given case. Robert J. Niemic, Donna Stienstra & Randall E. Ravitz, APPENDIX F. GUIDE TO JUDICIAL MANAGEMENT OF CASES IN ADR, Alternative Dispute Resolution With Forms, Second Edition 2001 Supp., text accompanying note 314.
126. See YAROSLAV SOCHYNSKY, MEDIATION - A GUIDE FOR PRACTITIONERS, CALIFORNIA ADR PRACTICE GUIDE, CH. 12 (AMERICAN LAW INSTITUTE 1996) (pointing out that "One distinguishing characteristic among mediating styles is whether the mediation will be primarily facilitative or evaluative."). Facilitative and evaluative are the most commonly discussed models in the legal-ADR literature, see Jeffrey W. Stempel, Beyond Formalism and False Dichotomies: The Need for Institutionalizing a Flexible Concept of the Mediator's Role, 24 FLA. ST. U. L. REV. 949 note 7 (1997) (providing an extensive list of scholarly work supporting this dichotomy). But see LAURENCE BOULLE, MEDIATION: PRINCIPLES, PROCESS AND PRACTICE 28 (1996) (discussing four models of mediation: settlement, facilitative, therapeutic and evaluative). It is important to note that although this dichotomy is prevalent in the ADR literature, in practice, many mediators blend facilitation and evaluation, applying each approach in varying degrees at different times during the mediation process, depending on the needs of a given case. Robert J. Niemic, Donna Stienstra & Randall E. Ravitz, APPENDIX F. GUIDE TO JUDICIAL MANAGEMENT OF CASES IN ADR, Alternative Dispute Resolution With Forms, Second Edition 2001 Supp., text accompanying note 314.
127. Mark K. Schoenfield, The Philosophical Considerations in Choosing Mediators and Arbitrators, 61-DEC OR. ST. B. BULL. 17 (2000).
128. Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOTIATION L. REV. 7, 17 (1996).
129. Mark K. Schoenfield, The Philosophical Considerations in Choosing Mediators and Arbitrators, 61-DEC OR. ST. B. BULL. 17 (2000).
130. Leonard L. Riskin, Mediator Orientations, Strategies and Techniques, Sept. ALTERNATIVES 111 (1994).
131. Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOTIATION L. REV. 7, 17 (1996).
132. Ibid. Id.
133. But the literature suggests that evaluative mediation is more common in practice. Deborah Hensler, A Research Agenda: What We Need to Know About Court-Connected ADR, 6 NO. 1 DISP. RESOL. MAG. 15, 17 (1999) (arguing that "The increasing quantity of anecdotal data, supported by some empirical studies, that suggest that mediation of civil lawsuits in practice is evaluative rather than facilitative").
134. E. Allan Lind, Bonnie E. Erickson, Nehemia Friedland & Michael Dickenberger, Reactions to Procedural Models for Adjudicative Conflict Resolution: A Cross-National Study, 22 J. CONFLICT RESOL. 319, 324 (1978).
135. Id. at 328-29, 335, 337.
136. Ibid.Id.
137. Susan T. Kurtz, & Pauline Houlden, Determinants of Procedural Preferences of Post Court-Martial Military Personnel, 2(1) BASIC & APPLIED SOC. PSYCHOL. 27-43 (1981).
138. Id. at. 34-35.
139. Id. at. 36.
140. Id. at. 37.
141. See Tom R. Tyler, Yuen J. Huo & E. Allan Lind, The Two Psychologies of Conflict Resolution: Differing Antecedents of Pre-Experience Choices and Post-Experience Evaluations, 2 GROUP PROCESSES & INTERGROUP RELATIONS 99, 113-15 (1999) (reporting four studies showing that people arrive at pre-experience preferences for decision-making procedures by choosing procedures that help them maximize self-interest in terms of material outcomes but base their post-experience evaluations on the quality of the treatment received during the course of the procedure).
142. Robert S. Peirce, Dean G. Pruitt, & Sally J. Czaja, Complainant-Respondent Differences in Procedural Choice, 4 INT'L J. CONFLICT MGMT. 199, 199-202 (1993).
143. Id. at 202-03.
144. Id. at 205. The procedures were not explicitly labeled in the questionnaires disseminated to the participants. Id. at 203.
145. Id. at 205. The procedures were not explicitly labeled in the questionnaires disseminated to the participants. Id. at 203.
146. Id. at 202-03. Examples of "struggle" include threats to harm reputation or business by publicizing the other party's behavior to interested third parties. Id. at 220.
147. Id. at 202-03. Examples of "struggle" include threats to harm reputation or business by publicizing the other party's behavior to interested third parties. Id. at 220.
148. Ibid. Id.
149. Id. at 199.
150. The word "representative" was intended to mean any spokesperson the disputant might envision, whether it be a lawyer or some other agent. I avoided the term "lawyer" to avoid priming participants to think about litigation, since such priming might have affected their preferences.
151. LAURENCE BOULLE, MEDIATION: PRINCIPLES, PROCESS AND PRACTICE 57-58 (1996).
152. See Richard Delgado, Chris Dunn, Pamela Brown, Helena Lee & David Hubbert, Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 WIS. L. REV. 1359 (1985) (and sources cited therein).
153. Id. at 1389.
154. Ibid. Id.
155. John Thibaut, Laurens Walker & Allen Lind, Adversary Presentation & Bias in Legal Decisionmaking, 86 HARV. L. REV. 386, 391, 399-401 (1972).
156. LAURENCE BOULLE, MEDIATION: PRINCIPLES, PROCESS AND PRACTICE 59 (1996).
157. Bernard Mayer, The Dynamic of Power in Mediation and Negotiation in C.W. Moore (ed.) Practical Strategies for the Phases of Mediation, no. 16. San Francisco: Jossey-Bass, Summer 1987.
158. Ibid. Id.
159. The author acknowledges that some disputants, particularly those in high conflict, might be unwilling to agree on rules in advance. Even if such disputants indicate a preference for disputant control over rules, this may not be a realistic option for them in practice.
160. As in previous studies, process control was operationalized in terms of control over presentation of evidence. See Pauline Houlden, Stephen LaTour, Laurens Walker & John Thibaut, Preference for Modes of Dispute Resolution as a Function of Process and Decision Control, 14 J. EXP. SOC. PSYCHOL. 13, 15, 21 (1978).
161. See notes 79-80 and accompanying text.
162. The latter option is common in mediation. See Alan Kirtley, The Mediation Privilege's Transition from Theory to Implementation: Designing a Mediation Privilege Standard to Protect Mediation Participants, the Process and the Public Interest, 1995 J. DISP. RESOL. 1, 35. See also THOMAS E. CROWLEY, SETTLE IT OUT OF COURT: HOW TO RESOLVE BUSINESS AND PERSONAL DISPUTES USING MEDIATION, ARBITRATION, AND NEGOTIATION 159 (1994). Control over evidence presentation is but one way in which disputants might control process. Other issues relating to process control might include control with respect to who gets to speak and when, whether the parties will meet with the mediator alone or together, whether lawyers are allowed to participate, and the degree of discovery that is allowed. I used this relatively narrow operationalization of process control because I wanted to compare my findings with those of older studies. Moreover, if the term had been defined too broadly, it would have been difficult to tease apart what aspects of the process participants were reacting to when making their preference ratings. Hopefully future research will expand on this narrow definition of process control.
163. The latter option is common in mediation. See Alan Kirtley, The Mediation Privilege's Transition from Theory to Implementation: Designing a Mediation Privilege Standard to Protect Mediation Participants, the Process and the Public Interest, 1995 J. DISP. RESOL. 1, 35. See also THOMAS E. CROWLEY, SETTLE IT OUT OF COURT: HOW TO RESOLVE BUSINESS AND PERSONAL DISPUTES USING MEDIATION, ARBITRATION, AND NEGOTIATION 159 (1994). Control over evidence presentation is but one way in which disputants might control process. Other issues relating to process control might include control with respect to who gets to speak and when, whether the parties will meet with the mediator alone or together, whether lawyers are allowed to participate, and the degree of discovery that is allowed. I used this relatively narrow operationalization of process control because I wanted to compare my findings with those of older studies. Moreover, if the term had been defined too broadly, it would have been difficult to tease apart what aspects of the process participants were reacting to when making their preference ratings. Hopefully future research will expand on this narrow definition of process control.
164. Stephen LaTour, Pauline Houlden, Laurens Walker & John Thibaut, Some Determinants of Preference for Modes of Conflict Resolution, 20 J. CONFLICT RESOL. 319, 323 (1976).
165. Id. In this study, participants were given a list of features of procedures that could be used to resolve their conflict and were asked which features they would want incorporated in the method used for their conflicts and how important each feature was to them. Id. at 327. The features that were studied were: 1) opportunity for evidence presentation; 2) desired level of fairness of the procedure; 3) disputant control over outcome; 4) control of third party over outcome; 5) amount of time a settlement should take; 6) certainty of approximation to the "best" possible outcome; 7) certainty of a final decision; and 8) pleasantness of procedure. In order to determine which dispute resolution procedures the participants preferred, the researchers enlisted law students to match groupings of these features to existing conflict resolution procedures. Id. Law students considered the following procedures: arbitration, autocratic (a procedure in which disputants delegate decision-making authority to a neutral third party who questions them and then renders a verdict), bargaining (bilateral negotiation without third-party assistance), mediation and moot (an informal procedure in which all disputants discuss the matter informally and make a unanimous decision). Id. at 328-29.
166. Id. In this study, participants were given a list of features of procedures that could be used to resolve their conflict and were asked which features they would want incorporated in the method used for their conflicts and how important each feature was to them. Id. at 327. The features that were studied were: 1) opportunity for evidence presentation; 2) desired level of fairness of the procedure; 3) disputant control over outcome; 4) control of third party over outcome; 5) amount of time a settlement should take; 6) certainty of approximation to the "best" possible outcome; 7) certainty of a final decision; and 8) pleasantness of procedure. In order to determine which dispute resolution procedures the participants preferred, the researchers enlisted law students to match groupings of these features to existing conflict resolution procedures. Id. Law students considered the following procedures: arbitration, autocratic (a procedure in which disputants delegate decision-making authority to a neutral third party who questions them and then renders a verdict), bargaining (bilateral negotiation without third-party assistance), mediation and moot (an informal procedure in which all disputants discuss the matter informally and make a unanimous decision). Id. at 328-29.
167. Id. In this study, participants were given a list of features of procedures that could be used to resolve their conflict and were asked which features they would want incorporated in the method used for their conflicts and how important each feature was to them. Id. at 327. The features that were studied were: 1) opportunity for evidence presentation; 2) desired level of fairness of the procedure; 3) disputant control over outcome; 4) control of third party over outcome; 5) amount of time a settlement should take; 6) certainty of approximation to the "best" possible outcome; 7) certainty of a final decision; and 8) pleasantness of procedure. In order to determine which dispute resolution procedures the participants preferred, the researchers enlisted law students to match groupings of these features to existing conflict resolution procedures. Id. Law students considered the following procedures: arbitration, autocratic (a procedure in which disputants delegate decision-making authority to a neutral third party who questions them and then renders a verdict), bargaining (bilateral negotiation without third-party assistance), mediation and moot (an informal procedure in which all disputants discuss the matter informally and make a unanimous decision). Id. at 328-29.
168. Id. In this study, participants were given a list of features of procedures that could be used to resolve their conflict and were asked which features they would want incorporated in the method used for their conflicts and how important each feature was to them. Id. at 327. The features that were studied were: 1) opportunity for evidence presentation; 2) desired level of fairness of the procedure; 3) disputant control over outcome; 4) control of third party over outcome; 5) amount of time a settlement should take; 6) certainty of approximation to the "best" possible outcome; 7) certainty of a final decision; and 8) pleasantness of procedure. In order to determine which dispute resolution procedures the participants preferred, the researchers enlisted law students to match groupings of these features to existing conflict resolution procedures. Id. Law students considered the following procedures: arbitration, autocratic (a procedure in which disputants delegate decision-making authority to a neutral third party who questions them and then renders a verdict), bargaining (bilateral negotiation without third-party assistance), mediation and moot (an informal procedure in which all disputants discuss the matter informally and make a unanimous decision). Id. at 328-29.
169. Compare with Pauline Houlden et al., Preference for Modes of Dispute Resolution as a Function of Process and Decision Control, 14 J. EXP. SOC. PSYCHOL. 13, 29 (1978) (bundling up options representing high and low control over process and decision). See also, Stephen LaTour, Pauline Houlden, Laurens Walker & John Thibaut, Some Determinants of Preference for Modes of Conflict Resolution, 20 J. CONFLICT RESOL. 319, 323 (1976); John Thibaut, Laurens Walker, Stephen LaTour & Pauline Houlden, Procedural Justice as Fairness, 26 STAN. L. REV. 1271, 1276-78 (1974).
170. Compare with Pauline Houlden et al., Preference for Modes of Dispute Resolution as a Function of Process and Decision Control, 14 J. EXP. SOC. PSYCHOL. 13, 29 (1978) (bundling up options representing high and low control over process and decision). See also, Stephen LaTour, Pauline Houlden, Laurens Walker & John Thibaut, Some Determinants of Preference for Modes of Conflict Resolution, 20 J. CONFLICT RESOL. 319, 323 (1976); John Thibaut, Laurens Walker, Stephen LaTour & Pauline Houlden, Procedural Justice as Fairness, 26 STAN. L. REV. 1271, 1276-78 (1974).
171. Compare with Pauline Houlden et al., Preference for Modes of Dispute Resolution as a Function of Process and Decision Control, 14 J. EXP. SOC. PSYCHOL. 13, 29 (1978) (bundling up options representing high and low control over process and decision). See also, Stephen LaTour, Pauline Houlden, Laurens Walker & John Thibaut, Some Determinants of Preference for Modes of Conflict Resolution, 20 J. CONFLICT RESOL. 319, 323 (1976); John Thibaut, Laurens Walker, Stephen LaTour & Pauline Houlden, Procedural Justice as Fairness, 26 STAN. L. REV. 1271, 1276-78 (1974).
172. Using the same 0-10 point scale, participants were also asked to indicate how much moral fault they attributed to the other party for the damage (or, in the version of the apartment scenario where the participant was the potential defendant, how much morally at fault they believed themselves to be for the damage that was caused). Results showed that fairly high degrees of moral fault were ascribed to the person who hosted the party in the apartment (M = 7.22, SD = 2.51), and to the person who damaged the bicycle (M = 5.72, SD = 3.64). Manipulations did not affect the attributions of moral fault, both ts < .49, ns. A repeated measures t test indicated that participants tended to find higher moral fault in the apartment scenario, t(50) = -3.09, p < .01, CI diff. (-2.47, -.53).
173. Peirce and his colleagues have pointed out that average ratings are not an infallible guide to people's top preferences because, for example, "an item may get a high rating because it is many peoples' first choice or most people's second choice." Robert S. Peirce, Dean G. Pruitt, & Sally J. Czaja, Complainant-Respondent Differences in Procedural Choice, 4 INT'L J. CONFLICT MGMT. 199, 205 (1993).
174. Twenty-two pilot participants read the fact pattern without being assigned to a particular role (plaintiff vs. defendant). They then used Likert scales to indicate how legally at fault the cyclist was and how legally at fault the driver was. These two ratings did not differ, t(21) = .74, ns. They were also asked to indicate what percentage of the damages each party should pay. Once again, the allocations attributed to the cyclist and the driver did not differ, t(21) = .57, ns.
175. The cases used in this study concerned an $800 loss. If participants assumed that they would have to pay a substantial sum to hire a representative (e.g., attorney) rather than, for example, obtain pro bono help, or the help of an attorney who would work for a very reasonable contingency fee, they may have imagined that representation would be expensive, especially relative to the amount at stake. Future research should explore these variables to determine how much procedural preferences are affected by different types and costs of representation.
176. Alternatively, this finding might also reflect the perceived simplicity of the disputes presented to the participants or the perceived prohibitive cost of obtaining representation.
177. Tyler examined the influence of demographic characteristics on judgments about the fairness of personal experiences with the police and courts. Tom R. Tyler, What is Procedural Justice? Criteria Used by Citizens to Assess the Fairness of Legal Procedures, 22 LAW & SOC'Y REV. 301 (1988). He did so using a large sample citizens from Chicago who had recent personal experiences with the police or courts. He investigated the degree to which people reported fair treatment by the legal authorities with which they interacted. Id. For disputes, the following specific criteria made independent contributions in predicting overall judgment of fairness: representation, ethicality, quality of decision, honesty, and consistency. Id. Representation or "voice" was the most important factor. Id.
178. Tyler examined the influence of demographic characteristics on judgments about the fairness of personal experiences with the police and courts. Tom R. Tyler, What is Procedural Justice? Criteria Used by Citizens to Assess the Fairness of Legal Procedures, 22 LAW & SOC'Y REV. 301 (1988). He did so using a large sample citizens from Chicago who had recent personal experiences with the police or courts. He investigated the degree to which people reported fair treatment by the legal authorities with which they interacted. Id. For disputes, the following specific criteria made independent contributions in predicting overall judgment of fairness: representation, ethicality, quality of decision, honesty, and consistency. Id. Representation or "voice" was the most important factor. Id.
179. Tyler examined the influence of demographic characteristics on judgments about the fairness of personal experiences with the police and courts. Tom R. Tyler, What is Procedural Justice? Criteria Used by Citizens to Assess the Fairness of Legal Procedures, 22 LAW & SOC'Y REV. 301 (1988). He did so using a large sample citizens from Chicago who had recent personal experiences with the police or courts. He investigated the degree to which people reported fair treatment by the legal authorities with which they interacted. Id. For disputes, the following specific criteria made independent contributions in predicting overall judgment of fairness: representation, ethicality, quality of decision, honesty, and consistency. Id. Representation or "voice" was the most important factor. Id.
180. Tyler examined the influence of demographic characteristics on judgments about the fairness of personal experiences with the police and courts. Tom R. Tyler, What is Procedural Justice? Criteria Used by Citizens to Assess the Fairness of Legal Procedures, 22 LAW & SOC'Y REV. 301 (1988). He did so using a large sample citizens from Chicago who had recent personal experiences with the police or courts. He investigated the degree to which people reported fair treatment by the legal authorities with which they interacted. Id. For disputes, the following specific criteria made independent contributions in predicting overall judgment of fairness: representation, ethicality, quality of decision, honesty, and consistency. Id. Representation or "voice" was the most important factor. Id.
181. Because mediation often includes the use of representatives such as lawyers, if participants had preferred the same decision and rule options but had preferred the process option which includes the use of such representatives, these configurations would also have been interpreted as reflecting mediation.
182. Deborah Hensler, A Research Agenda: What We Need to Know About Court-Connected ADR, 6 NO. 1 DISP. RESOL. MAG. 15, 17 (1999) ("[A]necdotal data, supported by some empirical studies, [suggests] that mediation of civil lawsuits in practice is evaluative rather than facilitative").
183. The only other difference in results between the two experiments pertained to process control - when role was independent of legal fault, participants preferred the process option in which they could have representatives present evidence and information on their behalf to the more inquisitorial option.
184. Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 HARV. L. REV. 961, 1357 (2001). See also Tom R. Tyler, Yuen J. Huo & E. Allan Lind, The Two Psychologies of Conflict Resolution: Differing Antecedents of Pre-Experience Choices and Post-Experience Evaluations, 2 GROUP PROCESSES & INTERGROUP RELATIONS 99 (1999).
185. Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 HARV. L. REV. 961, 1357 (2001). See also Tom R. Tyler, Yuen J. Huo & E. Allan Lind, The Two Psychologies of Conflict Resolution: Differing Antecedents of Pre-Experience Choices and Post-Experience Evaluations, 2 GROUP PROCESSES & INTERGROUP RELATIONS 99 (1999).