With the elimination of state court ADR programs, the shrinking of available courtrooms for civil trials, and the consequent delay in getting cases to trial and resolution, California attorneys must analyze and counsel their clients about how to obtain faster resolution of their disputes.
University of California Davis law professor Donna Shestowsky conducted a multi-jurisdictional study of civil litigants’ attitudes – at the beginning of litigation – toward procedural options to resolve their disputes. In “The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante,” 99 Iowa L. Rev. 637 (2014), Professor Shestowsky concludes that litigants prefer mediation to all other procedures except for the judge trial and the procedure where attorneys negotiate with clients present. As between mediation and non-binding arbitration, mediation was a clear favorite.
Although “the presence of the Judge Trial among the more preferred options impedes general conclusions” (99 Iowa L. Rev. at 674), the revelations of the study have critical importance to attorneys seeking to shepherd their clients through the minefields of dispute resolution.
The data also revealed that litigants were more interested in negotiations that would include the attorneys as well as the clients to negotiations that would involve the attorneys only. They also liked Mediation as much as the former kind of negotiation, but significantly more than the latter type of negotiation. This finding – along with the fact that litigants preferred Mediation to most adjudicative procedures – suggests that litigants want to be present for, and have the option to informally participate in, the resolution process. This finding may come as a surprise to attorneys who assume that they should conduct settlement discussions on their own. Although there might sometimes be strategic reasons for excluding litigants from settlement discussions, lawyers should anticipate a desire on the part of clients to observe or participate in the discussions themselves, and counsel clients on the advantages and disadvantages of that option in light of their particular case.
(99 Iowa L. Rev. at 674-675. Footnotes omitted. Emphasis added)
The takeaway for lawyers is that clients want to be involved in the resolution procedure. This gives them a voice, self-determination and control over the process and the outcome. With the expertise of the lawyer, and the ability to observe and contribute on their own, clients will be more satisfied with the outcome, leading to a more durable solution to the dispute.
The most flexible forum for achieving this is in mediation, where the procedure can be customized for each litigant and each type of case. The lawyers’ insight into the needs of their clients is crucial in developing the most productive process, one that meets the clients’ needs to participate in the ways they want.
Donna Shestowsky’s article is available online here