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The Effect of Attendance on Litigant Perceptions of Fairness

Jennifer Shack, June 30th, 2020

Litigant attendance at a dispute resolution process impacts their assessment of the fairness of that process, according to research conducted by Donna Shestowsky. The impact of litigant attendance differs for settlement and adjudicative procedures. As she notes in her article, “Great Expectations? Comparing Litigants’ Attitudes Before and After Using Legal Procedures” (Law and Human Behavior, June 2020) [sub. req.], this has implications for how lawyers shape their clients’ perceptions of individual procedures. 

This is the fifth in a series of articles presenting different aspects of her research into the decision-making of litigants in civil cases. Previous articles reported that litigants prefer mediation, looked at what they wanted from a dispute resolution process, discussed their lack of awareness of what options were available to them and noted that litigants were most likely to select a process based on their lawyer’s advice. The research is based on surveys of litigants in three jurisdictions (in California, Oregon and Utah), that offered both mediation and arbitration options to the surveyed litigants. 

For this aspect of the research, 335 litigants completed surveys soon after their case was filed and were interviewed within three weeks after their case ended. Among the questions asked at the outset of their case was how attractive different procedures were to them. These included all the options available to them for their case, which Shestowsky divided into settlement procedures (mediation and negotiation) and adjudicative procedures (trial and arbitration) when analyzing the results. After their case ended, they were asked how fair they thought the procedure was and whether they attended that procedure. 

Shestowsky found that when litigants attended a settlement procedure used to resolve their case, they rated that procedure as fairer than those litigants who attended an adjudicative procedure. However, when litigants did not attend the procedure used to resolve their case, they saw settlement and adjudicative procedures as similarly fair. When comparing attendance within procedures, she found that attendance did not affect fairness ratings for settlement procedures, but that those who attended an adjudicative procedure rated the procedure as less fair than those who did not attend the procedure.

Attendance also interacted with the litigants’ initial perceptions of the dispute resolution processes. Litigants who rated the procedure they used more negatively at the outset of their case saw that procedure as fairer if they attended the procedure than if they did not. On the other hand, Shestowsky found that those who were attracted to a procedure at the outset of their case rated that procedure as less fair if they attended the procedure than if they did not. For litigants who did not attend the procedure, their initial rating of the procedure did not affect their perception of its fairness at the end of the case. 

Shestowsky states that these findings raise questions about the role lawyers play in shaping their clients’ perceptions of individual procedures before they are used, as well as their perceptions after the case ends if their clients do not attend, particularly since litigants said their lawyer’s advice was the most important factor in their selection of the process. She notes that it is possible that some lawyers set up expectations in such a way that litigants who attend a dispute resolution process are let down by the reality of their experience. Alternatively, lawyers who discuss what happened in a procedure that their clients did not attend may paint a picture that is highly satisfactory to those clients. 

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