Magazine article Dispute Resolution Journal

Relative Satisfaction with ADR: Some Empirical Evidence

Magazine article Dispute Resolution Journal

Relative Satisfaction with ADR: Some Empirical Evidence

Article excerpt

One of the underlying assumptions about ADR is that the parties experience greater satisfaction with ADR processes that offer greater control over the process and the outcome. The authors tested this theory In a small study of student subjects who played all the roles in a number of simulated disputes that were resolved through negotiation, mediation, arbitration, med-arb and peer review. The authors suggest how the results of this limited study, which confirm the relevance of control to satisfaction with ADR, can be used in ADR design.

Alternative dispute resolution continues to be used in a diversity of settings-- the management of health care, consumer, commercial business, international, construction, labor and employment disputes. It is also used in the judicial system in court-- annexed ADR programs. Compared to litigation, ADR processes are less adversarial, faster and more efficient, relatively lower in cost, and private.1 These advantages over litigation are well-documented.

Many supporters of ADR believe that people are more satisfied with a dispute resolution process in which they have greater control over both the process and the outcome.2 Control of the process means that disputing parties exercise influence over the details of the process, including the rules and procedures that will be used. Control of the outcome means that they have the opportunity to choose a jointly agreed-upon solution and cannot be forced into a settlement.

This paper is concerned only with the ADR processes listed in Table 1. They give the parties varying degrees of control over the process and the outcome. Negotiation allows the most control. However, because the parties have so much latitude when they negotiate, sometimes the weaker negotiator feels victimized at some later point. When the parties are represented in negotiations, they retain control of the process and outcome, but they also have the assistance of an attorney or another person, which may prevent them from agreeing to terms that they may eventually regret.

In mediation, a third-party neutral known as the mediator controls the process, while the power to make outcome-determinative decisions rests with the parties. Mediators often attempt to increase the fairness of the mediation by maintaining their neutrality throughout the process, encouraging the parties to fully articulate their concerns, preventing one party from dominating the mediation, allowing the mediation to proceed at a pace with which both parties feel comfortable, and making sure that the parties have the information they need to make informed decisions.3

In arbitration, control of the outcome is in the hands of a third-party neutral called the arbitrator, who is empowered to render a final and binding decision. When the arbitration agreement is negotiated, as it usually is in domestic and international commercial transactions and in employment contracts for highly compensated employees, the claimant has had input into the arbitration process to the extent that the agreement sets forth the procedures to be followed. When unionized employees are involved in arbitration, the union usually acts as their representative and it has negotiated the arbitration procedure with the employer. By contrast, when employers and consumer businesses unilaterally require arbitration, the employee or consumer typically has little or no input on the process. Even when the arbitration agreement has been negotiated, the arbitrator still "manages" the process.

Med-arb is a hybrid procedure during which the parties may ask the mediator to become the arbitrator if they feel that the mediation will not succeed. (The process raises some ethical issues because the mediator was privy to confidential information that an arbitrator would not ordinarily hear.) During the mediation phase, the power to make outcome-determinative decisions rests with the parties. If the dispute does not settle and the arbitration phase takes place, all control resides in the arbitrator. …

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