As court systems throughout the country struggle to deliver civil justice in the face of budget cuts, a new study by a UC Davis law professor finds that people involved in civil lawsuits prefer mediation to nonbinding arbitration and like judge trials more than jury trials.
In her study, “The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante,” Donna Shestowsky, who teaches negotiation strategy, alternative dispute resolution and legal psychology, reveals the legal procedures preferred by people involved in civil lawsuits at the start of their cases.
The findings could help court systems design future generations of court-connected alternative dispute resolution programs by providing guidance on which procedures litigants find more appealing.
ADR programs offer procedures that are alternatives to trial; mediation and nonbinding arbitration are common forms of ADR.
“The clear overall preference that litigants expressed for mediation over nonbinding arbitration has important implications for courts that want to draw litigants into their voluntary ADR programs, especially if they offer only one ADR procedure,” she said. “This finding helps to resolve a long-standing debate over which of the two procedures litigants prefer.”
Overall, litigants liked mediation, the judge trial, and negotiations that included the litigants along with their attorneys more than all other examined procedures. A judge trial is where a judge determines the verdict rather than a jury.
The study also found that compared to men, women were significantly less attracted to jury trials and binding arbitration.
Repeat players – those who had been either a defendant or plaintiff in a prior case – liked the idea of using binding arbitration for their case more than first-time litigants. “This finding resonates with the idea that repeat litigants are more likely than first-time litigants to appreciate the fact that trials are often associated with painful, protracted discovery and the threat of an appeal.”
The study also found that litigants preferred negotiations that included the parties along with their attorneys to negotiations that took place between the attorneys only. And the more litigants were confident of a trial win, the less they liked the option of the attorneys negotiating without the parties also being present.
Shestowsky's project is the first multijurisdictional study that will explore how civil litigants assess procedures at various points during the same lawsuit.
This is the first publication in a multipaper series, looking at litigants' preferences at the beginning of a case. Subsequent papers will explore litigants' views at the end of their lawsuit. This article appears in the latest edition of the Iowa Law Review, released Jan. 1.
The article is available at http://www.uiowa.edu/~ilr/issues/ILR_99-2_Shestowsky.pdf .
Shestowsky collected extensive data from more than 400 litigants, in 19 different states, whose cases were filed in court systems in California, Oregon and Utah.
Case types included contract, employment, civil rights, medical malpractice, personal injury, and property disputes.
This project was funded by competitive grants from the National Science Foundation, the American Bar Association Section on Litigation and the University of California.
