Mediating Preferences: Litigant Preferences for Process and Judicial Preferences for Settlement

Abstract

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 court-based 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. Contrast those data with what we know about judicial preferences—garnered not by parallel surveys but through other sources. At meetings where judges teach other judges about how to do their work, at conferences with the bench and bar, in descriptions of their activities, and in published opinions, judges are promoting settlements rather than trials. In this brief essay, I first provide an overview of the evidence on judicial preferences for dispositions other than trial. Thereafter, I explore the puzzles presented by the contrast between judicial preferences for settlement and litigants' preferences for process. At issue is how to evaluate and what weight to give either set of preferences as the polity makes its judgments about the structure of state-based dispute resolution.