Journal of Dispute Resolution
Professor Deborah Hensler suggests in the lead article of this Symposium issue that the courts' embrace of facilitative, interest-based mediation may have been ill-conceived. She argues that there is insufficient evidence to conclude that litigants are more satisfied with mediation than with adjudicative alternatives such as arbitration and trial. She also urges that there is sufficient evidence to show that litigants prefer processes that vest decision control in third parties. Both of these assertions are subject to challenge,' but this Comment will focus upon the significance of giving decision control to the disputants in consensual processes.
Using available research, this Comment will argue, perhaps surprisingly, that the salience of the disputants' decision control is much more apparent to mediation advocates and to courts than it is to disputants. Disputants involved in consensual processes often do not perceive themselves as wielding real control over the outcomes achieved in those processes. Thus, the current practice of distinguishing and prioritizing among dispute resolution processes based primarily upon the locus of decision control may be misguided. Further, vesting decision control in the disputants does not guarantee that the disputants will perceive the dispute resolution process or its outcome as fair. To the contrary, the procedural justice literature demonstrates that, regardless of their decision control, disputants consistently value processes that feel fair because they offer a meaningful opportunity for voice and consideration and assure even-handed, dignified treatment. The literature makes it clear that disputants' perceptions of procedural fairness influence their perceptions of outcome fairness. Indeed, disputants' perceptions of procedural fairness may even influence their evaluation of their own control over outcomes. This suggests that courts need to focus quite intently upon the institutionalization of third party processes that are procedurally just, regardless of whether those processes are classified as consensual or non-consensual.
Such a uniform commitment to procedural justice might seem natural for the courts. However, the procedural due process jurisprudence indicates that the courts' appreciation of procedural justice is unlikely to translate easily to processes in which the disputants, not the courts, are deemed to exercise control over outcomes. Given the current state of procedural due process jurisprudence, courts may lack both the desire and the ability to demand procedural justice in third party processes that are classified as "consensual." Ironically then, disputants' decision control, which is meaningful to mediation advocates and the courts but a rather hollow promise for disputants, may have the unfortunate effect of hindering the institutionalization of procedural justice in consensual, court-connected processes.
Nancy A. Welsh,
Disputants' Decision Control in Court-Connected Mediation: A Hollow Promise Without Procedural Justice,
Available at: https://scholarship.law.tamu.edu/facscholar/946