The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante

Abstract

This Article reports the findings of the first multi-jurisdictional study of litigants’ perceptions of legal procedures shortly after their cases are filed in court. It begins by explaining why research on how litigants assess procedures could be used to advance procedural justice and mitigate the negative impact that the economic downturn has had on the resolution of civil cases. It then presents analyses regarding: (1) how attractive litigants find various legal procedures (e.g., Negotiation, Mediation, Non-binding Arbitration, Binding Arbitration, Jury Trials, Judge Trials); (2) how they assess the relative probability that they will use each procedure; (3) how their attraction ratings and “expected use” estimates compare for each procedure; and (4) whether demographic, case type, relationship, and attitudinal factors predict their attraction to each procedure. The analyses revealed that litigants preferred Mediation, the Judge Trial, and Attorneys Negotiate with Clients Present to all other examined procedures. The lack of relations between attraction to procedures and many of the predictor variables (i.e., demographic, case type, relationship, and attitudinal factors) suggests that some factors previously associated with ex ante perceptions are not significant predictors when evaluated concurrently. The major findings are discussed in the context of dispute resolution systems design in courts, client counseling protocols, procedural justice, and the psychology of litigants more broadly.

Keywords: Courts, procedural justice, civil justice, ADR, mediation, trial, arbitration, negotiation, juries, judges, psychology, litigants, dispute resolution, decision-making