Procedural Preferences in Alternative Dispute Resolution: A Closer, Modern Look at an Old Idea

Abstract

This article reports three experiments that elaborate on previous research regarding preferences for alternative dispute resolution procedures for the resolution of legal disputes. Preferences for decision control, process control, and control over the choice of substantive rules used in the resolution process were examined. The moderating effects of social status (equal vs. lower status relative to the other disputant) and role (defendant vs. plaintiff) were also assessed. Relative preferences for two common types of mediation - evaluative versus facilitative - were also investigated. Participants generally preferred the following: (a) control over outcome, such that a neutral third party would help disputants reach a mutually satisfactory resolution; (b) control over process such that disputants would relay information on their own behalf without the help of a representative; and (c) either substantive rules that disputants would have agreed to before the resolution process, or the rules typically used in court. Preference strength was moderated by experimental condition. Results suggest that mediation was the most preferred procedure and facilitative mediation was generally preferred over evaluative mediation. Implications for law and policy are discussed.

Keywords: civil disputes, dispute resolution, mediation, psychology, disputants, decision-making, experimental research