In the 1980s, as a consultant to RAND's Institute for Civil Justice, I joined Deborah Hensler, Allan Lind, Robert MacCoun, William Felstiner, Tom Tyler, and Patricia Ebener in seeking to learn how litigants viewed their experiences with courtbased processes. We surveyed litigants whose cases had been resolved through trials, court-annexed arbitrations, judge-run settlement conferences, and bi-lateral negotiations between lawyers.' We found that litigants cared about process: they reported less satisfaction with processes in which they took no part and more satisfaction with processes in which they could participate. Contrary to some lore that litigants were alienated by trial-like procedures, the litigants whom we studied reported that trials and arbitrations gave them a sense of control and dignity. When coupled with and complemented by research of others, that study also demonstrates that the preference for process survives outcomes, which is to say that it exists even when litigants are not successful through a particular process.2
Mediating Preferences: Litigant Preferences for Process and Judicial Preferences for Settlement,
2002 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol2002/iss1/10