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Howieson, Jill --- "Perceptions of Procedural Justice and Legitimacy in Local Court Mediation" [2002] MurdochUeJlLaw 13; (2002) 9(2) Murdoch University Electronic Journal of Law

Perceptions of Procedural Justice and Legitimacy in Local Court Mediation

Author: Jill Howieson BA, BA (Hons), LLB (Hons)
Law Graduate, Mallesons Stephen Jaques, Perth
Issue: Volume 9, Number 2 (June 2002)

Contents:

    I. Introduction

  1. The concept of mediation has inspired many a treatise: treatises about the premise of mediation, the promise of mediation, the practice of mediation and the problems and praise of mediation. It has also inspired many debates: debates about pure versus formal mediation, facilitative versus settlement orientated mediation, mandatory versus voluntary mediation, and now that the courts have "co-opted"[1] mediation, debates about court connected mediation. The vast array of literature spawned by these treatises and debates transects many disciplines including law, psychology and sociology, and forms either commentary (law) or empirical study (the social sciences) or a synthesis of the two (socio-legal research). As we now move into the new era of court connected mediation, criticism or support of court mediation dominates the legal literature.

  2. Meanwhile the social science literature focuses on the assessment of both the subjective and objective aspects of mediation, including the capacity of mediation to deliver improved party relationships, satisfaction, reduced disputing costs, and effectiveness. The socio-legal literature however, offers explanations of behaviour that transcend traditional explanations of how people view and react to the law.[2] Much of this literature is focussed on litigants' subjective perceptions of the fairness and legitimacy of various legal dispute resolution procedures, including mediation. This paper is socio-legal in the sense that I am interested in exploring the subjective evaluations of people who deal with mediation within the legal system. I will present a study of lawyers' and litigants' perceptions of the procedural justice and legitimacy of a court connected mediation process - the pre-trial conference, as conducted in the Local Court in Western Australia. In order to present a thorough analysis, the paper will also touch on some of the legal issues and the social science research of civil court mediation.

    II. Background to court mediation

    A. The premise of mediation

  3. The premise of mediation is that an impartial third party can often assist two "warring" parties to find a consensual resolution to their dispute. It is an ancient non-legal dispute resolution process used to "re-orient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another."[3]

  4. Thus, mediation is traditionally understood as an informal and private dispute resolution procedure. However it is now used in a variety of ways by the formal legal system and most often it is used to gain early settlements in civil disputes. Civil court mediation is premised on the belief that disputes can be resolved more speedily, inexpensively and efficiently through mediation, as opposed to trial. Proponents of mediation believe it will remedy many of the ills (costs, delay, formality, restricted scope of claims and remedies, lack of consensuality and party control) of the adversarial trial system.[4] They also believe that by avoiding the win or lose situation of adjudicatory procedures the mediation procedure would be more satisfying to disputants. Most of the mediation research done to date shows that generally mediation does remedy some of these objective faults of the adversarial system and shows that in general litigants are more satisfied with mediation than with adversarial procedures.[5]

    B. The promise of mediation

  5. On a deeper level, "believers"[6] in mediation also think mediation has the ability to transform disputants into more psychologically and morally aware individuals.[7] Believers are convinced that mediation can do this through the opportunities it offers disputants of self-determination and empowerment.[8] Mediation "promises disputants the opportunity to participate actively and directly in the process of resolving their dispute, to control the substantive norms guiding their discussion and decision-making, to create the options for settlement, and to control the final outcome of the dispute resolution process."[9] This is the self-determinative aspect of mediation. It involves party empowerment as it "gives individuals a sense of their own value and strength and own capacity to handle life's problems"[10] and can also evoke "in individuals an acknowledgement and empathy for the situation and problems of others".[11] It is these concepts of mediation that lead proponents to think that mediation may help solve many human problems and might lead to more interconnectedness and tolerance between human beings in society as a whole.[12]

  6. The humble hope for mediation as a court connected process however, is simply that it might lead to fairness and affordable justice where the adversarial model might not. Advocates for mediation in civil disputes believe that the opportunity for outcome and process control may lead to a fairer and more just result than an outcome that is imposed by an adjudicator or decision maker. By reducing the intimidation and emotional strain that is so often associated with adversarial decision making, by enhancing the capacity to tell one's story, and by giving the parties an opportunity to craft a unique solution to their dispute, advocates of mediation believe a fairer result might ensue. In short, advocates believe that mediation leads to better justice than the "all or nothing, black or white end result of a trial."[13]

    C. The practice of mediation

  7. The expansive mediation literature shows that there are many different philosophies and ethics behind the practice of mediation and many argue that the promises of mediation described above could only ever occur in a "pure", transformative or facilitative mediation.[14] Pure mediation involves no more than a neutral third-party facilitating communication between the parties, never evaluating or judging the dispute or the parties' conduct. Transformative mediation involves the mediator skillfully leading the parties to a higher level of discussion and opening the parties up to an understanding of the perspectives of the other, and of themselves.[15] Then there is facilitative mediation where the mediator might facilitate ideas for creative solutions to the dispute by gently probing and guiding the parties in much the same way as a counsellor might.[16] These types of mediation share a common philosophy and ethic, namely that the mediator should interfere as little as possible in the parties' self-determinative process. This means employing an individual-orientated approach rather than a legally-orientated approach, namely focussing on the individual's interests rather than on his or her legal rights. Mediators with this philosophy will often amalgamate many techniques from each type of mediation into their practices. They will vary the techniques based on the contexts in which they work, and the urgency of the problems with which they are dealing. However, the fundamental goal for these mediators is the self-determination of the parties.

  8. Evaluative and settlement-orientated mediators on the other hand aim to settle the dispute, sometimes at any cost. In these mediations, the practitioners might use more interventionist techniques such as discussing the strengths and weaknesses of the parties' cases, evaluating the merits of the respective cases, and even predicting how the courts will eventually decide the case.[17] Interventionist mediators will often urge and even pressure the parties to settle or to accept a particular settlement proposal. The particular settlement proposals most often come from the mediators themselves, who form the proposal from their own rights based assessment of the case, rather than from the parties' needs and interests. In contrast to other mediation forms then, this interventionist and evaluative style of mediation "actively undermines" the parties' self-determination.[18] Indeed some critics have even asked whether this type of mediation is actually mediation at all.[19]

  9. Not surprisingly there is now a major controversy over whether the primary goal of court connected mediation should be to achieve case settlement or to facilitate a mutually beneficial solution based on the parties' own needs and interests, and on their free and voluntary decision making. There is also a related debate over the degree of legal evaluation, if any, that it is appropriate for mediators to give in mediation. In addition, there is controversy over whether mediation should be mandated by the courts or voluntary.

    D. The problems with mediation: the legal literature

  10. The controversies mentioned above have characterised the legal literature on mediation during the last two decades. More particularly, debates about the problems associated with the legal system's use of settlement orientated and mandatory mediation have dominated the literature. Carrie Menkel-Meadow lists some of the commentators who have opposed and questioned mandatory settlement orientated mediation procedures.[20] They include:

  11. Like their North American counterparts, Australian legal commentators have identified similar problems associated with court connected mediation. Dr Richard Ingelby first drew our attention to the problems associated with mandatory versus voluntary mediation, non-attendance at mediations or failing to mediate in good faith, and with having or not having legal representation in settlement mediations.[26] These issues have since been picked up respectively by:

    In addition, Australian commentators have identified the constitutional implications of court mediation and the problems with the use of private caucuses where one party can have access to court officials without the other party present. They have also noted various other legal problems associated with mediator misconduct, confidentiality of mediated agreements, and the regulation of mediation.[30]

  12. On both continents, the debate continues as to whether the courts can appropriately carry out mediation. Those who are against it are both legal purists, who argue vigorously that mediation in the courts "presents a very real threat to the foundation of public confidence in the integrity and impartiality of the court system"[31] and mediation purists who argue that mediation should be conducted away from the litigation environment and by people other than court personnel. The legal purists argue that mediation presents a "repudiation of the basic principles of fairness".[32]

  13. The mediation purists argue that mediation should stay as informal as possible and as free from influence from the court system as it can.[33] On the other side of the court connected mediation debate, the vigorous proponents of mediation continue to criticize the economic and emotional waste entailed in adversarial processes and continue to sing the praises and promises of mediation. They argue that there are numerous advantages to court connected mediation in that: a) the court can elicit serious participation from the parties; b) the court can control power imbalances by deciding which cases will or will not go to mediation; c) the courts can ensure quality control by selecting, training and supervising its own mediators; and d) with the court conducting the mediation, the parties may still feel that they have "had their day in court".[34] People on this side of the debate also see that there is no repudiation of the principles of fairness by court connected mediation, as the courts can conduct the mediations within a structure that avoids any reasonable apprehension of bias or unfairness. To add to these rather objective arguments, the court mediation proponents also draw on the social science literature to support their commitment to court connected mediation.

    E. In praise of mediation: the social science literature

  14. Social scientists have found that disputants prefer mediation to trial in small claims courts;[35] are more satisfied with the mediation experience than with adjudication;[36] are more likely to comply with the terms of the agreement reached in mediation and not re-litigate;[37] and "are more likely to report less harm to, or an improvement in, their relationship, better communication and cooperation, and less anger than those who have gone through trial".[38]

  15. Although there are relatively few studies conducted by social scientists into mediation, and very few field studies, the social science research shows why mediation proponents continue to advocate that the courts use mediation in the civil dispute resolution system. There is contradictory evidence on whether mediation is actually faster, more economical or more effective than trial or adjudicatory procedures, but if mediation can help create more litigant short term and long term satisfaction, and can reduce the cases of adversarial angst and anger, then arguably it is a worthwhile procedure for the courts to use.[39]

    F. Court mediation

  16. Ultimately it appears that the legal theorists and social scientists alike agree that court connected mediation is worth preserving. Not all those who criticize court mediation oppose its continuation and most recognize that the courts will probably continue to hold mediation, generally in the form of settlement conferences. They also recognize, as the social science literature shows, that there are considerable advantages to using mediation as an alternative to trial.[40]

    III. Objectives for court mediation: justice, satisfaction and legitimacy

  17. Although there are a myriad of issues surrounding court connected mediation, one issue is fundamental. Civil courts need to be very clear about their objectives for mediation. In her recent issues paper on court connected mediation in Australia, Hilary Astor identifies that the objectives of producing fair and just outcomes and procedures, achieving party satisfaction and "preserv[ing]....party respect for and confidence in the justice system" are significant for any court connected mediation program.[41] Astor then suggests that there is need for theoretical development in this area and for empirical research aimed at evaluating these objectives.

    Justice and fairness

  18. Interestingly, socio-legal theorists have made great advances into the theory associated with what determines the fairness and justice of dispute resolution procedures, disputants' satisfaction with dispute resolution procedures, and the public's perceptions of the legitimacy of the justice system. Social psychologists, who are interested in how people arrive at their evaluations of fairness, have found that in dispute resolution procedures, what disputants consider to be fair and just depends on their subjective (individual and personal) perceptions of the procedure and outcome, not on any objective benefits such as time or cost savings.[42] In turn, they have found that if disputants' subjective evaluations of justice are not met, this leads to feelings of dissatisfaction with the legal dispute resolution experience and with the justice system in general.[43]

  19. Further, they have identified that it is procedural justice (the perception that the procedure is fair) that is the most important factor in shaping people's overall perceptions of fairness, and in determining disputants' satisfaction with legal dispute resolution procedures (including mediation). [44] The psycho-social theorists also believe that procedural justice is the primary factor associated with the public's perceptions of the legitimacy of the justice system.[45] Legal theorists also agree that procedural justice is a necessary component of any legal system, and is the cornerstone for the legitimacy of legal systems.[46] However, for legal theorists the focus is on procedural fairness[47] or objective procedural justice, defined as "the capacity of a procedure to conform to normative standards of justice".[48]

  20. Thus whilst the psycho-social theorists are interested in peoples' personal thoughts and evaluations of what is a fair procedure, the legal theorists are interested in what the external objective norms and standards for a fair and just procedure are.

    Procedural fairness

  21. Procedural fairness is the legal notion that if the primary legal procedural safeguards are in place then the procedure must be fair, regardless of whether one actually thinks it is fair. These objective safeguards are the right to be given a hearing, the opportunity to present one's case, the right to have a decision made by a disinterested decision maker and the right to have that decision based on logically probative evidence.[49]

  22. Procedural fairness also requires a correct application of the law to the facts, namely an adherence to the principle of precedent, and an opportunity to have the case reviewed if this does not occur.[50] Moreover, procedural fairness requires the protection of "the worth and dignity of persons whose legal entitlement and obligations are subject to determination by the state".[51] Legal theorists argue that it is this type of objective procedural structure (and objective distributive justice, or substantive justice - namely an apportionment of outcomes based on objective standards) that is necessary to the fair and legitimate functioning of legal authority.[52] For instance Weber argues that the law must hold to these types of "objective" standards or "disciplining rules" in order to secure justice and legitimacy. [53] That is, if one is given a hearing conducted according to disciplining rules such as the rules of evidence and of civil procedure then legally and objectively this constitutes a 'fair' procedure and in turn secures the legitimacy of the justice system enacting the procedure. However, legal theory is fraught with the difficulty of trying to establish recognizable and objective universal standards of fairness. Even so, the legal theories of procedural fairness still only emphasize the objective aspects of the fairness of procedures; they do not encompass procedural justice, or the degree to which disputants perceive that the procedure is fair.

  23. It may be that clues to universal objective standards of justice may be found in peoples' subjective perceptions of procedural justice rather than in any objective criteria. More importantly, procedural justice is more salient in mediation, where there is no hearing, no decision-maker and no application of the law to the facts. In mediation, therefore, it is likely to be procedural justice that will determine if the mediation is fair, satisfying and legitimate to disputants.

    Procedural justice

    The research

  24. As procedural justice is the personal evaluation that a procedure is fair, psychologists and socio-legal scientists who are interested in how people think and behave in social groups, and how they react to legal experiences, have conducted most of the procedural justice research.

  25. Initially social science theorists believed that people were more likely to perceive that an interaction with the legal system was fair if they perceived that the decision or the outcome was fair (distributive justice). Equity theory, for example, suggests that people base their perceptions of justice on social comparison information as they compare how their outcomes fall relative to the outcomes of others, and whether the outcomes they receive are equitable in terms of the relative contributions and rewards of all the participants in the interaction.[54]

  26. Other distributive justice theorists suggest that people compare the apportionment of outcomes based on need or 'deservingness' criteria.[55] However, all distributive justice theorists view people as primarily self-interested and as seeking to maximize their rewards (or resources) from their interactions with others. They therefore believe that people tend to focus on their outcomes from a legal dispute resolution procedure as the source of their fairness and satisfaction ratings.

  27. However, social psychologists soon discovered that across a variety of dispute resolution procedures the use of a fair procedure increased the satisfaction of all concerned and enhanced perceptions of the overall fairness and acceptance of the decision, regardless of the outcome.[56] This procedural justice phenomenon appeared consistently, regardless of whether people had high or low personal or financial stakes in an outcome, and for individuals as well as corporate actors.[57]

  28. More recently, research has shown the robustness of procedural justice effects across cultures, ethnicity and nationalities.[58] Further, these procedural justice studies showed that people were more likely to accept negative outcomes from legal institutions without losing loyalty to, or respect for those institutions if they believed that the decisions that were being made were procedurally fair.[59] That is, "procedural justice strongly influences institutional legitimacy and, through it, the acceptance of institutional decisions."[60]

  29. This line of research has also shown that if people perceive that authorities are legitimate through their enactment of fair procedures, they will take the positive obligation to obey the authorities' rules onto themselves[61] they will have positive attitudes toward the effectiveness of the legal system and will be willing to empower the courts to make decisions on fundamental issues.[62] More importantly, for the purposes of court mediation, the research indicates that people are more willing to accept innovation in the legal process[63] and to accept non-binding legal decisions if they perceive that there was procedural justice.[64]

  30. Procedural justice theory does not exclude distributive justice as an important concern in people's perceptions of the justice and legitimacy of the legal system. It simply seeks to highlight the importance of the often-neglected procedural aspects of decision making, as opposed to the end result. The perception of the fairness of the outcomes still have an impact on people's impressions of their experience with legal authorities; it is just that by the time the information about the outcome is available (especially in a trial or other adjudicative procedure), people have usually formed a strong impression about the authority. When the outcome information does arrive, it is usually interpreted in terms of already-existing beliefs about the authority, namely existing impressions of its procedural justice.[65]

    Models of procedural justice

  31. The social psychological studies of procedural justice suggest that people have a complex model of procedural justice. The early models of procedural justice postulate "that the main ingredient of procedural justice is the optimal distribution of control between the disputants and the third party decision maker"[66] and they focus on the way people perceive that fair procedures help them toward gaining a favourable outcome for themselves. These models are often referred to as instrumental control models of procedural justice. The later models postulate that relational concerns are the main ingredients in perceptions of procedural justice. Relational models of procedural justice are premised on the belief that disputants focus on the fairness of procedures because the experience of a fair procedure tells them important things about their social relationships and their self-identity.[67] These models are summarized in the table below.

    Instrumental control models

  32. The control models of procedural justice derived from the work of Thibaut and Walker who argued that "the key procedural characteristic shaping people's views about the fairness of procedures is the distribution of control between the disputants and the third party".[68] In their seminal studies, Thibaut and Walker referred to two control mechanisms; decision control, (or outcome control) meaning control over the outcome of the dispute; and process control, meaning control "over the development and selection of information that will constitute the basis for resolving the dispute".[69] The control models posit that if people perceive that they have outcome control or process control they will perceive the process as fair because they have been afforded the opportunity to be instrumental in influencing the outcome in a positive way.[70]

  33. Process control in these models of procedural justice is viewed as an indirect path towards outcome control. Instrumental control theorists view direct or indirect control over outcomes as a central characteristic of procedural justice as they assume people are primarily concerned with the end-result or outcome of a dispute resolution process. In this sense, instrumental control theories are similar to distributive justice theories in that they both focus on outcomes. They also both derive from a self-interest model of human behaviour that views people as rating their experiences with others in terms of how much or how little resources they gained. They see people as out to maximize their control over outcomes in order to maximize their resource gains.

    Non-instrumental models

  34. Non-instrumental theorists on the other hand, view people as more concerned with the social aspects of procedures, such as communication and conduct, because they believe these aspects can lead to positive feelings about social relationships and self-identity. Non-instrumental theories arose from several experiments that found that process control had a unique effect on perceptions of procedural justice, independent from outcome control.[71] Theorists attributed this unique effect of process control to non-instrumental processes such as creating positive feelings of high self-esteem, group membership and catharsis.[72]

  35. Non-instrumental theorists believe that feelings of high-esteem and group membership derive from the process control effect of "voice", namely from being given the opportunity to express one's views and have these views listened to and considered. These theorists believe that being given the opportunity to voice tells the disputant that he or she is a valued member of the group. This creates in the person a feeling of being accepted by the group enacting the procedure, which in turn enhances his or her perceptions of self-worth and self-esteem. The positive feeling of catharsis may also derive from being able to express one's views and have these views considered (voice) and also, especially in the case of mediation, from 'ventilating' emotions in the procedure.[73] These positive feelings, either of catharsis, group membership or self-esteem, in turn create perceptions that the procedure was fair.[74]

    Relational model

  36. More recently, Tyler and Lind have suggested that it is the relationship with the person implementing the dispute resolution procedure (the third party), and not process control or voice that creates the positive feelings about self-identity and group status and in turn affects perceptions of procedural justice.[75]

  37. Tyler and Lind's relational theory posits that it is the non-instrumental, interpersonal aspects of the third party/disputant relationship and the perceived fairness of the third party who is enacting the procedure, that tell people something about whether they will be treated fairly and whether they are valued by the group using the procedure. Relational theorists suggest that to determine whether a procedure is fair, people attend closely to the interpersonal and relationship variables of status recognition, neutrality and trust.[76]

    Status recognition

  38. Status recognition refers to people's perceptions of their status within a group. When an authoritative third party treats the disputing person with politeness, dignity and respect, it gives the disputant a feeling of positive social status. One way, therefore, in which legal procedures can foster dignity and respect, and thus promote perceptions of fairness, is by giving people opportunities to express their views and feel that legal authorities listen to and consider their concerns (voice). Thus, for relational theorists, voice forms part of this relational variable and is not a separate effect.[77]

    Neutrality

  39. Neutrality refers to the extent that the authoritative third party creates a 'level playing field'.[78] If the third party acts dishonestly or with bias the disputant may sense discrimination, and feel that he or she is perceived as less worthy than the party not discriminated against, and thereby perceive the procedure as unjust.

    Trust

  40. Trust refers to beliefs about the intentions of the authoritative third party, namely whether the disputant can trust that the third party is benevolent and will behave fairly. If the disputant believes he or she can trust the third party, it will enhance the perception that future interactions with the group, or with a similar third party, will be fair.[79] This in turn fosters the perception of procedural justice.

    Summary of the models and theories of procedural justice

  41. Although the procedural and distributive justice theoretical framework is still in a state of flux, the Tyler and Lind relational model is currently the major model of the socio-psychology of procedural justice.[80] Although other non-instrumental variables such as ventilating and voice are also likely to correlate with disputants' perceptions of procedural justice in mediation, the relational model postulates that the relational variables will show the stronger relationship with litigants' perceptions of procedural justice in most legal dispute resolution procedures (this is reflected in the arrows in Figure 1 below). The relational model also postulates that the relational variables will show the stronger relationship with people's perceptions of the legitimacy of legal authorities, and with their satisfaction with legal dispute resolution procedures.

  42. Table 1 provides a summary of the major models of procedural and distributive justice, and outlines the main variables believed to relate to disputants' perceptions of procedural and distributive justice and the psychological rationale behind these relationships. Figure 1 shows how the models of psychological or procedural justice fit into the overall picture of the theories of justice through law.

  43. The focus of this study is on the theories of procedural justice and the relation of procedural justice to perceptions of fairness, legitimacy and satisfaction with mediation as a legal dispute resolution procedure. That is, the focus of this study is on the lower part of Figure 1.

    Table 1:  Psychological Models of Justice: the Main Variables that Relate to Perceptions of Justice and the Psychological Rationale.

                 Models of Justice

    Main Variables that Relate to Perceptions of Justice

    Psychological Rationale

    Distributive

    Justice

    Equity 

    Need

    Deservingness

    Relative Outcome

    Outcome based on need

    Outcome based on deservingness

    People primarily self-interested and seeking to maximize their rewards (or resources) from their interactions with others.

    Procedural

    Justice

    Instrumental

    Control: Decision and Process control.

    People as out to maximize their control over outcomes in order to maximize their resource gains.

    Non-Instrumental

    Voice

    Ventilating

    People as more concerned with the social aspects of procedures because they believe these aspects can lead to positive feelings about social relationships and self-identity, which in turn creates the perception that the procedure was fair.

    Status Recognition

    Trust

     Neutrality

    People focused on the interpersonal aspects of the procedure as they tell people something about whether the group using the procedure values them and this in turn creates the perceptions that the procedure was fair.

    Relational


    IV. The Study

  44. Many legal commentators have recognized the need for empirical research that draws less on the legal establishments' objective perspectives on law and more on social science theories and methods.[81] As Garth concludes, in his reflections on the "uncomfortable relationship" between civil procedure and empirical research, social science theories and methods "can offer much toward a better understanding of how law operates and what operates on law -- what produces legal change, and what legal change produces."[82]

  45. Although the legal literature does guide social scientists toward useful areas to research, it often lacks the statistical analysis and research methodologies necessary to tease out the important relationships between the law and its users.[83] Socio-legal research, on the other hand, uses legal and social science theory, and employs social science methodology, to help explain the behaviour of those involved with the law and thus to give us a greater insight into how the law and its users interact in both the legal and social context.

  46. Using social science theory and methodology, I conducted a study in 2000 that showed how self-represented litigants perceived the Local Court of Western Australia's enactment of its pre-trial conference mediation procedure.[84] It revealed that in general litigants perceived the mediation as procedurally just and as a satisfying experience. However, the 2000 study examined the perceptions of self-represented litigants only. Moreover, it did not inquire into the litigants' perceptions of the legitimacy of the Court's mediation procedure. It would be unwise, therefore, to generalize the results from the 2000 study beyond the scope of self-represented litigants in the Local Court.

  47. It cannot be concluded from the 2000 study that court connected mediation meets its objectives of providing satisfaction and justice to all disputants, and of preserving confidence in the justice system. There is a need to examine whether legally represented litigants and lawyers have the same constructions and perceptions of the procedural justice of local court mediation as do self-represented litigants.[85] It is also desirable to examine directly whether lawyers and their clients view the local court mediation procedure as legitimate. A further practical reason to investigate whether legally represented litigants are satisfied with court mediation and view it as just and legitimate, is that if most litigants are satisfied with mediation, then lawyers can encourage the use of mediation confident in the expectation that it will be considered satisfactory by their clients, irrespective of whether it saves them time and money.[86]

  48. The aim of the present study then, is to use socio-legal theory and methodology to explore litigants' and lawyers' perceptions of the procedural justice and legitimacy of court connected mediation. It does this in two parts. Part I of the study looks at the impact of lawyers on legally represented litigants' perceptions of procedural justice (in comparison to the results of the 2000 survey of self-represented litigants). Part II of the study looks at lawyers' and litigants' perceptions of procedural justice and the legitimacy of court connected mediation.

    Participants

  49. Participants in this study were lawyers and their clients who took part in a pre-trial conference in the Local Court of Western Australia. There were 86 participants in total, 52 were lawyers and 34 were their clients. Of the clients, 24 were plaintiffs in the action and 10 were defendants, 20 were male and 14 female. Twenty-one clients said they requested the pre-trial conference, 7 said the other party did and 6 said the Court ordered the conference.[87] All respondents voluntarily participated in the survey and their anonymity was assured.

    Procedure

  50. The researcher approached the lawyers and their clients in the pre-trial reception area of the Local Court in Perth and asked if they would complete the questionnaire after the conference and post it back to the researcher in a pre-paid envelope. The response rate for returns was 53% for the lawyers and 37% for the clients.

    The pre-trial conference

  51. The Local Court of Western Australia has jurisdiction in regard to civil disputes to a maximum value of $25,000 in the General Division; $3,000 in the Small Disputes Division and $6,000 in the Residential Tenancy Division. Legal representation is not allowed for litigants in the Small Disputes Division and Residential Tenancy Division (unless the Court grants special permission). The types of cases heard in the General Division vary, although most are commercial disputes arising from motor vehicle accidents, business contracts or general debt collection. Litigants can request a pre-trial conference but usually, if neither party to the litigation makes the request, the Court will direct that a pre-trial conference take place before trial.

  52. For self-represented litigants the pre-trial conference as conducted by the Local Court follows a basic process of mediation as outlined in much of the literature.[88] The mediator welcomes the parties and explains the purpose of the mediation; the mediator sets the ground rules, (this may include allowing each party to speak without interruption and prohibiting verbal or other abuse); each disputant in turn explains his or her side of the dispute without interruption; the parties, with the assistance of the mediator, identify and narrow the issues in dispute (this can include the use of private caucuses); the parties, with the assistance of the mediator, generate options for solving the dispute; and the parties may reach an agreement or settlement (this can include an agreement not to agree). In addition, the mediator (Clerk of the Court) has statutory powers to make interlocutory and interim orders as he or she thinks fit, and list the action for trial, or if a settlement is attained, order each party to file a memorandum of consent.[89]

  53. For legally represented litigants the process described above can be quite different. Often the parties (clients and lawyers) will try to negotiate between themselves before attending before the mediator. This means that by the time the parties see the mediator, they may have already reached a settlement, or they may simply ask for a trial listing, or an adjournment. Depending on what has transpired between the parties in the preceding negotiation there may be no mediation process but instead merely a formalization by the mediator of the agreement reached by the parties.[90]

  54. Sometimes the lawyers attend without their clients or with the client merely 'contactable'.[91] In these cases, the conference often bears very little resemblance to the mediation process described above. Whilst the pre-trial conference as experienced by the self-represented litigants may quite rightly be called mediation, it is doubtful whether the same could be said of some of the pre-trial conferences experienced by legally represented litigants and their lawyers. Although the pre-trial conference has the potential to be a 'true' mediation, given the willingness of the parties, many of the legally represented litigants I observed did not actually experience mediation. The reasons for this may be varied, but the Court staff and commentators alike place the blame for this squarely at the feet of the lawyers.[92] This reality, unfortunately colours the results of the current study in terms of mediation theory, but it does not detract from the practical and theoretical implications of the study's findings in terms of the justice, legitimacy and satisfaction of court connected mediation. Consequently, I will continue to use the term mediation to apply to the pre-trial conference, but I will point to areas of the study where the issue of legally represented litigants not experiencing mediation may have affected the results.

    Part I: Do Lawyers Make a Difference?

  55. The rationale behind the issue dealt with in Part I is that there are a multitude of questions surrounding the issue of lawyers in mediation. Does their participation undermine client self-determination in the mediation process? Does lawyer participation increase the cost of the mediation process? What happens in cases in which both sides are not represented by counsel? Does lawyer-participant mediation constitute "real mediation"? McEwen et al argue that lawyers are necessary.[93] They advance numerous arguments for the proposition that lawyer participation in mediation sessions will assist clients, for example; a) lawyers can intervene on behalf of their clients and present buffers to pressures to settle; b) lawyers can also counsel clients to moderate extreme demands; c) mediation with lawyers might reduce discovery costs; and d) earlier settlements might also result. Above all McEwen et al argue that lawyers might assist their clients in many ways without preventing the meaningful participation of their clients in the mediation process.

  56. This study addresses the latter issue. There have been various scenarios suggested as to how lawyers may influence their clients' meaningful experience with mediation; these are described below. However, this study seeks in particular to assess if lawyers influence their clients' perceptions of procedural justice, or if lawyers influence their clients' evaluations of the psychological variables that are thought to relate to perceptions of procedural justice.

    a) Mediation reluctance

  57. Some commentators have argued that lawyers may not be able to leave their adversarial training behind and engage fully in a settlement process using mediation. This scenario suggests that there is "a pervading consciousness in legal practice that litigation is the possible conclusion of any contract, trust or deed of conveyance drawn up or any legal advice tendered. The attitude of the lawyer is one of precaution and anticipation of litigation".[94] They argue that lawyers' legal education and singular belief in the judicial process might prevent them from encouraging their clients to use mediation, and might prevent them from participating properly in the mediation process.[95] Proponents of this scenario warn that lawyers who do not agree with mediation goals are "likely to become a dysfunctional element in the process, not only jealous of its intrusion into their domain of competence, but also unable to adapt professionally to a situation of controlled and defused, rather than polarized and contentious, conflict."[96] Furthermore, the perceived cost disincentives, lack of kudos and prestige, and the spectre of illegitimacy attached to mediation, are additional reasons that commentators believe that lawyers might be reluctant to embrace mediation as a viable legal dispute resolution mechanism.[97]

  58. However, some legal scholars have identified that there is a possible "change in lawyers' thinking about ADR" and mediation.[98] Macfarlane, for instance, in her study of 40 lawyers involved in mediations[99] found that some lawyers are 'true believers' in the importance of mediation.[100] Under this scenario lawyers welcome mediation for the psychological and emotional benefits they see that it brings to their clients and for its usefulness in reality-checking their clients' cases. Whilst Macfarlane's study revealed that some lawyers use mediation as fishing expeditions, or to delay or to stall proceedings, it also revealed that the level of acceptance of mediation has increased, and the level of skepticism has decreased.[101] Some lawyers put this change down to the mandatory mediation program and being forced to use mediation, while others suggest that the change reflects the general evolution of legal dispute resolution.[102]

  59. As one lawyer in the Macfarlane study said "I think there has been an increasing acceptance of our role being dispute resolution [practitioners] rather than masters of the adversary system. I think there has been an increasing willingness and acceptance of alternative dispute resolution mechanisms as being a integral part of the process".[103] In addition, the study revealed that lawyers now recognize that mediation has a lot to offer, especially to their business clients. The ability to save or even enhance future business relationships through the parties' face to face discussion and ventilation; the opportunity for business clients to settle on suitable 'business' solutions to their disputes rather than have to accept rigid legal outcomes;[104] and the savings to business clients, in terms of time and money, that come from early settlements, were cited as the great advantages of mediation as a legal dispute resolution tool.

  60. Zariski, in his 1996 survey of Western Australian lawyers also found that a great majority of lawyers supports using alternatives to litigation, such as mediation, in resolving commercial disputes.[105] However, Zariski points out that this does not, at this stage, represent a change in ideology amongst lawyers. "The picture that emerges from th[e] research taken together is widespread concurrence amongst common law lawyers that ADR [and mediation] is of value and ought to be pursued but notable divergence in the reasons given for those beliefs."[106]

  61. Lande made similar findings in his 1994 study of commercial and in-house lawyers, and business executives in Wisconsin. In addition, Lande noted that lawyers "are [the] key sources of information about [mediation] for colleagues and clients alike."[107] In turn, he found that lawyers are particularly sensitive to the "perceptions and desires of their clients and superiors regarding dispute resolution."[108] The possible scenario that arises from these studies is that lawyers' perceptions of mediation are varied, and that lawyers and clients influence each other's perceptions of mediation. It is therefore imperative to find out both what lawyers' perceptions of mediation are, and how much this affects their clients' experience with mediation. Part II of the study investigates how lawyers perceive court connected mediation, whilst Part I focuses on how lawyers might affect their clients experiences of mediation.

    b) 'Law Talk'

  62. In probably the most famous treatise on the implications of how lawyers' perceptions of legal procedures may influence their clients, Sarat and Felstiner argue that "practising lawyers play an important part in shaping mass legal consciousness and in promoting or undermining the sense of legitimacy that the public attaches to legal institutions".[109] Lawyers also play a critical role in communicating these ideas to their clients. "As a result, their assimilation, acceptance, rejection, integration, or other response to alternatives to established norms of litigation practice [such as mediation] is critical to both the practical consequences and the impact of civil justice reform and innovation."[110]

  63. If lawyers do indeed decry the legitimacy of mediation, they may communicate their negative perceptions of mediation to their clients via 'law talk', and similarly, if they view mediation positively they may communicate this to their clients as well. Sarat and Felstiner found that "conversations between lawyers and clients are frequently about the nature, operation and efficacy of legal institutions and the characteristics, motivation and competence of legal actors".[111] The innuendoes and information gained from these conversations may affect the client's experience with mediation and may affect the client's view of the justice system in general. Part II of the study explores lawyers' views on the legitimacy of mediation, whilst Part I examines whether lawyers influence their clients' perceptions of mediation through 'law talk'.

    c) Interference with procedural justice

  64. There are other scenarios describing how lawyers may affect mediation, mostly how they may negatively affect mediation. Theorists have argued against lawyer involvement in mediation because lawyers may interfere with their client's capacity "to explore helpful and creative solutions".[112] "Mediation proponents also suggest that lawyer participation may reduce commitment to, and thus compliance with, the settlement reached."[113]

  65. One of the purposes of this study is to examine if lawyers 'spoil' the mediation process in terms of procedural justice. Lawyers may interfere with their clients' opportunities to speak, or with their perceptions of any of the social and relational aspects of the procedure. If this happens it may detract from litigants' perceptions of the procedural justice, and hence the legitimacy of mediation. This in turn would mean that the litigants would lack confidence in, and respect for, the justice system in general and would be left dissatisfied with their experiences of the mediation procedure in particular.

    d) Fairness

  66. One irony of the nexus of lawyers and mediation is that some studies have shown that lawyers believe their primary role in mediation is to provide a check on unfairness. McEwen et al's study indicated that most lawyers understand their role to be as protectors of their clients; namely to ensure that "things are being run fairly and to watch out for their clients' interests".[114] In particular, lawyers saw themselves as protecting clients from inappropriate settlements, or protecting against mediator pressures or unfair bargaining advantages that the other party may have. In this scenario, we see some of the positive ways in which lawyers may affect mediation.

    e) Summary

  67. This part of the study investigates some of the potential influences that lawyers may have on litigants' perceptions of the mediation process. In particular, it seeks to ascertain whether lawyers interfere with their clients' perceptions of procedural justice and if so, how and why? For instance, do lawyers inhibit those variables that theorists believe promote perceptions of procedural justice namely, voice, and the relational variables of status recognition, trust and neutrality? Do lawyers influence their clients' perceptions of procedural justice through 'law talk'? Alternatively, do lawyers not interfere with their clients' perceptions of procedural justice at all?

    Empirical research questions

  68. The empirical research questions for Part I of the study relate to these theoretical questions. The first major research question asks whether there are any differences between self-represented litigants' and legally represented litigants' ratings of procedural and distributive justice. The second major research question asks whether there is any difference in which psychological variables correlate with the two groups' perceptions of procedural justice. Another major research question is whether there is a difference between self-represented litigants' and legally represented litigants' feelings of satisfaction with the conference. Finally, as the courts rate the success or not of the pre-trial conference in terms of settlement, a subsidiary research question asks whether the litigants and lawyers would have still preferred to go to trial regardless of the outcome of their mediation.

    Method: Questionnaire

  69. This part of the questionnaire was the same as the survey instrument used for the 2000 study with additional questions added that aimed at examining the issues of lawyer interference in outcome or process control and the phenomenon of 'law talk'. All the responses for the original questions were anchored on a 5-point Likert-type scale with alternatives coded from 1 to 5. The complete wording of all the questions is presented in the Appendices.

  70. Instrumental variables:

    The questionnaire included five questions that measured the instrumental variables: how favourable was the outcome to the litigant; how favourable was the outcome compared to what the litigant expected; how favourable was the outcome compared to what the litigant would have liked it to have been; and control over the outcome and process.[115] These were questions 1, 2, 3, 4 and 6 respectively, on the client questionnaire.

  71. Non-instrumental variables:

    Three questions were used to measure the non-instrumental variables; voice - having the opportunity to say everything they wanted to say in the conference and whether the mediator considered their views; and ventilating - being able to say things made them feel good about participating in the conference.[116] These were questions 8, 11, and 9 respectively, on the client questionnaire.

  72. Relational judgments:

    Five questions were used to measure the relational variables: neutrality - whether the methods used by the mediator were equally fair to everyone involved; trust - trusting the mediator to be fair to them; and status recognition - whether the mediator treated them politely, showed respect for their rights, and whether the mediation was dignified.[117] These were questions 12, 10, 13, 14 and 15 respectively, on the client questionnaire.

  73. Distributive justice was measured by asking whether the litigants thought the outcome of the pre-trial conference was fair. Procedural justice was assessed by asking whether the litigants thought the procedure of the pre-trial conference was fair. Satisfaction was assessed by asking whether overall, the litigants felt satisfied with the experience. These were questions 16, 17 and 18 respectively, on the client questionnaire.

  74. Additional Issues:

    Additional questions were added to measure the influence of lawyers, namely; whether the mediator, the other party's lawyer or the client's own lawyer interfered with the client's outcome and process control; and whether the client's lawyer made any positive or negative comment on the fairness of the procedure or on the outcome of the conference ('law talk'). These were questions 5, 7, 23, 24, 25 and 26 respectively, on the client questionnaire.

    Results

    Ratings of procedural and distributive justice

  75. The study first considered whether there were any differences between the self-represented and legally represented litigants' ratings of procedural and distributive justice. Using the data of the 2000 study and the data from this study, a statistical analysis was conducted.[118] The results showed that there was no significant difference between the self-represented and legally represented litigants in their ratings of procedural justice, although the two groups differed significantly in their ratings of distributive justice.[119] The legally represented litigants rated the fairness of their outcomes as significantly higher than the self-represented litigants did.

    Correlates of perceptions of procedural justice[120]

  76. The study then considered whether the two groups differed in which psychological variables showed the stronger relationship with their perceptions of procedural and distributive justice. That is, did the two groups differ in whether the non-instrumental variables of voice and ventilating, or the relational variables of status recognition, trust and neutrality, or the instrumental variables of outcome concerns and control, were more substantially correlated with their perceptions of procedural and distributive justice. The results of the statistical analyses indicate that the relational variables showed the stronger relationship with both the self-represented and legally represented litigants' perceptions of procedural justice.[121]

  77. The relational variables showed a strong positive correlation to both groups' perceptions of procedural justice, that is, those litigants who evaluated the relational variables as high also rated the procedural justice of the conference as high. The results show that those litigants who considered that the mediator treated them politely, with respect for their rights, and who thought the procedure was dignified (status recognition), and who trusted the mediator to be fair to them (trust), and who considered that the mediator used methods that were equally fair to everyone involved in the mediation (neutrality), perceived the procedure of the conference as fairer than those who did not evaluate the conference in this way. The results in this regard are consistent with Tyler and Lind's relational theory of procedural justice.

  78. The relational variables were also significantly correlated with the self-represented litigants' perceptions of distributive justice, although the instrumental variables showed the greatest correlation. For the legally represented litigants the non-instrumental variables were the only significant correlate of their perceptions of distributive justice. These results mean that the legally represented litigants' views about distributive justice flowed from their evaluations of the non-instrumental aspects of the mediation, namely from voice and ventilating, and not from their evaluations of the instrumental concerns of outcome and control. However, for the self-represented group, their perceptions of distributive justice were more directly related to their evaluations of the outcome or instrumental concerns. Yet their evaluations of the relational variables also had a bearing on their ratings of distributive justice, albeit a lesser bearing than the instrumental concerns. Although these findings do not fit with most theories of distributive justice, several procedural justice theorists have previously noted similar results.[122]

  79. In accord with distributive justice theories, however, the instrumental variables correlated most strongly with the self-represented litigants' perceptions of distributive justice (and correlated moderately with their perceptions of procedural justice). On the other hand, contrary to distributive justice theory, the instrumental variables did not significantly affect the legally represented litigants' perceptions of the distributive (or procedural) justice of their conferences. Table 2 shows the correlations of the relational, non-instrumental and instrumental variables with the litigants' ratings of procedural and distributive justice. The higher the beta weight[123] the greater the correlation of the variables with the litigants' perceptions of procedural and distributive justice. The asterisks indicate the level of the statistical significance of the correlation, with the more asterisks indicating the higher level of significance (i.e * p < .05, ** p < .01, *** p < .001).

    Table 2: Correlates of Self and Legally Represented Litigants' Perceptions of Procedural and Distributive Justice

    Variables

    Beta Weight

    Procedural Justice

    Self Represented (n = 103)

    Relational

    .54***

    Non-instrumental

    .15

    Instrumental

    .19 *

    Legally Represented (n = 34)

    Relational

    .63***

    Non-instrumental

    .34*

    Instrumental

    -.12 

    Distributive Justice

    Self Represented (n = 103)

    Relational

    .30*

    Non-instrumental

    .01

    Instrumental

    .44***

    Legally Represented (n = 34)

    Relational

    -.04

    Non-instrumental

    .55*

    Instrumental

    .22

  80. Next, to ascertain which of the relational or non-instrumental variables, independently, showed the strongest relationship with the litigants' perceptions of procedural and distributive justice, a further statistical analysis was conducted. The results show that in the self-represented sample, the major correlates of litigants' perceptions of procedural justice were the variables of voice and status recognition.[124] This means that those self-represented litigants who viewed the mediation as taking place within a polite, respectful and dignified atmosphere (status recognition), and who thought the mediator gave them the opportunity to say what they wanted to say and considered their views (voice), were more likely to perceive the conference as procedurally just than those who did not view the mediation in this way. This result also means that the voice and status recognition concerns were more important in the self-represented litigants' perceptions of procedural justice than evaluations of mediator neutrality or trust in the mediator.

  81. In the legally represented group status recognition was the only significant correlate of the litigants' perceptions of procedural justice, whilst voice was the only significant correlate with the litigants' perceptions of distributive justice.[125] This means that those legally-represented litigants who considered that the mediator treated them politely, with respect, and who thought the procedure was dignified (status recognition) were more likely to perceive the conference as fairer than those who did not evaluate the status recognition variables in this positive way. Meanwhile, those who thought that the mediator gave them the opportunity to express their views, and thought that the mediator considered their views (voice), were more likely to perceive the outcome of the conference as fairer than those who did not evaluate the voice variables in this way.

  82. Table 3 below displays these results. Again, the higher the beta weight the greater the correlation of the particular variable with the litigants' perceptions of procedural or distributive justice, and the asterisked entries show the level of statistical significance ( * p < .05 ** p < .01 *** p < .001).

    Table 3: Correlations of the Non-instrumental and Relational Variables with Perceptions of Procedural and Distributive Justice.

    Variable

    Beta Weight

    Procedural Justice

    Self-Represented (n = 103)

    Voice

     .47**

    Ventilating

    -.37

    Neutrality

     .12

    Status recognition

    .34**

    Trust

    -.08

    Legally Represented (n = 34)

    Voice

     .23

    Ventilating

     .15

    Neutrality

     .17

    Status recognition

     .51 **

    Trust

     .02

    Distributive Justice

    Legally Represented (n = 34)

    Voice

     .68*

    Ventilating

     .25

    Neutrality

    -.03

    Status recognition

    .32

    Trust

    -.10

  83. Overall, the legally represented group reported that they had sufficient opportunity to have their say and that the mediator considered their views.[126] So did the self-represented group. Therefore, the presence of lawyers does not seem to have greatly affected this voice aspect of the mediation. The legally represented group also reported that the mediator treated them politely and with respect, and that the mediation was dignified. Again, so did the self-represented group.[127]

  84. Therefore, lawyers also do not seem to have affected their clients' evaluations of the status recognition variables. Interestingly though, the two groups differed in their evaluations of the how politely the mediator treated them; the legally represented litigants reported that the mediator treated them less politely than the self-represented group.[128] However, this does not seem to have affected the legally represented litigants' high evaluations of distributive or procedural justice.

    Control

  85. Half of the legally represented litigants did report, however, that there was some interference with their ability to control either the outcome or the process of the mediation. For process control, seven litigants reported that the interference came from their lawyers, four said from the mediator, two said from the other sides' lawyers, two said from both lawyers and one reported that interference came from all three (the mediator and the lawyers). For outcome control, seven litigants reported that some interference came from their lawyers, one said from the mediator, five said from the other sides' lawyers, two said from both lawyers and again, one said from all three. Although half of the legally represented litigants reported interference with the control variables, a statistical analysis showed that there was no difference between the self-represented litigants' evaluations of control and the legally represented litigants' evaluations.[129] Both groups rated their ability to control the process and outcome of the mediation as moderately low.[130]

  86. As outcome and process control did not correlate with either groups' perceptions of the procedural or distributive justice of the mediation, this finding adds to our understanding of how lawyers affect mediation per se, but it has little bearing on how lawyers affect their clients' perceptions of the procedural or distributive justice.

    'Law talk'

  87. Of more interest for our purposes is the finding that just under half of the legally represented litigants (15 litigants, representing 44% of the sample) reported that their lawyers had commented on the fairness of the conference process, and over half (21 litigants representing 62% of the sample) reported that their lawyers had commented on the fairness of the outcome of the conference. Only two litigants reported that the lawyer had made negative comments, all the other litigants reported that the comments had been positive. Overall then, 56% of the legally represented litigants reported that their lawyers had made positive comments about the fairness of the outcome whilst a lesser number (38%) reported positive comment about the fairness of the procedure. It appears from these results that 'law talk' may have contributed to the legally represented litigants rating the distributive justice of their mediations as higher than their self-represented counterparts did.

    Satisfaction

  88. Positive comments from lawyers about the fairness of the outcome may also have contributed to the legally represented litigants' feelings of satisfaction with the conference. The results from the self-represented litigants' survey showed that both perceptions of procedural justice and distributive justice were significantly related to litigant satisfaction, with perceptions of distributive justice being more strongly related.[131] However, for the legally represented litigants, the results of a statistical analysis showed that distributive justice was the only significant correlate of satisfaction with the conference.[132]

  89. This means that those legally represented litigants who rated the fairness of the outcome (distributive justice) of the conference as high were more likely to be satisfied with the conference than those who rated the fairness of the outcome as low. The results of this analysis are presented in Table 4 below. Again, the higher the beta weight the greater the correlation of the particular variable with the litigants' perceptions of satisfaction, and the asterisked entries show the level of statistical significance ( * p < .05 ** p < .01 *** p < .001).

    Table 4: Correlates of Self and Legally Represented Litigants' Feelings of Satisfaction

    Variable

    Beta Weight

    Satisfaction

    Self Represented (n = 103)

    Procedural Justice

    .34***

    Distributive Justice

    .49***

    Legally Represented (n = 34)

    Procedural Justice

    -.03

    Distributive Justice

    .79***

  90. Positive comments from their lawyers, on the fairness of the outcome of the conference, may have led the legally represented litigants to rate the distributive justice of their mediation as high. This in turn may have led the clients to feel more satisfied with the conference overall. As the lawyers made less positive comment to their clients on the procedure, rather than on the outcome of the conference, this could account for the result that perceptions of procedural justice did not show a significant relationship with the legally represented litigants' satisfaction with the conference. In fact, a statistical analysis of the data indicates that lawyer comment on the outcome did correlate positively with satisfaction, whilst lawyer comment on the procedure did not.[133]

    Settlement

  91. Overall, 46% of those in both the 2000 study and this study taken together said that their cases settled in the conference. In the particular groups, 40% of the self-represented litigants reported that their cases had settled, 62% of the legally represented litigants had settled and 44% of the lawyers reported their cases had settled. Although this looks like a notable difference between the groups, a statistical analysis revealed that given the differences in the group sizes this in fact is not a significant difference.[134]

  92. Altogether, out of the entire sample, across the two studies, of 189 litigants and lawyers, only 18 participants said they would have preferred to go to trial[135] Thus more than 90% of the entire sample wanted a settlement to their cases: a clear result in favour of settlement. These results are presented in Table 5 below.

    Table 5: Frequencies of Preference for Trial Amongst Litigants and Lawyers

    Self Represented Litigants

    Settled (n = 41)

    Not Settled(n = 62)

    Preferred trial

    5

    7

    Preferred settlement

    36

    55

    Legally Represented Litigants

    Settled (n = 21)

    Not Settled(n = 13)

    Preferred trial

    3

    1

    Preferred settlement

    18

    12

    Lawyers

    Settled (n = 24)

    Not Settled(n = 28)

    Preferred trial

    1

    1

    Preferred settlement

    23

    27

    Discussion of Part I results

  93. It appears that legal representation does make a difference to litigants' experience of the pre-trial conference. Legally represented litigants differed from litigants without legal representation in their ratings of distributive justice and in the criteria they used to assess their satisfaction with the conference. It appears from these results that one of the major reasons for the differences is the presence of lawyers.

    Theoretical implications

  94. The finding that, for legally represented litigants, perceptions of distributive justice was the better predictor of feelings of satisfaction with court mediation than perceptions of procedural justice was unexpected in terms of the current theories of procedural justice.[136]

  95. However, it is difficult to ascertain whether the legally represented litigants who participated in the survey actually experienced a mediation process. In this regard, the result may say more about the influence of lawyers on court connected mediation than it does about procedural justice theory. Lawyers may have prevented the pre-trial conference from actually occurring as a mediation process. Either by not bringing their clients to the conference, or by settling the matter by themselves beforehand, or by making a decision to adjourn or go straight to trial, the lawyers may have turned the conference into a programming hearing, or a bi-lateral settlement, rather than a mediation. If there was no mediation, then essentially there was no third party procedure from which to judge procedural justice.

  96. Alternatively, as the majority of lawyers seemed to make comments to their clients about the fairness of the conference outcomes, then these comments may have been the sole criteria that the litigants' used to assess their satisfaction with the conference, rather than the criteria of procedural justice. It is possible that the strength of the lawyer/client relationship is such that the determining factor in the client's feelings of satisfaction with the local court mediation, is the client's communication with his or her lawyer, and not a factor associated with the dispute resolution process at all. The traditional lawyer/client relationship is such that the client is usually completely reliant upon the lawyer for information about the progress of the case. Lawyers may take advantage of this situation and tell their clients positive things about the outcome of the case because it is in the lawyers' best interests to do so. In other words, lawyers may use their personal leverage to help convince their clients that they achieved a positive result from the conference. These positive comments from the lawyers may then induce the clients to feel satisfied with the conference.

  97. Similarly, it appears that the influence of lawyers may have affected how the legally represented litigants' arrive at their perceptions of distributive justice. The instrumental variables associated with the outcome were not directly related to the legally represented litigants' perceptions of distributive justice, instead the non-instrumental variables of voice and ventilating were. This may have been because there was no tangible outcome to consider. Depending on what occurred in the mediation, it may have been that if the legally represented litigants were given the opportunity to voice, in whatever form the conference took, then this could possibly have led to them forming a favourable impression about the distributive justice of the conference. Alternatively, and again, it may have been the 'law talk' between the clients and their lawyers that became the focal point of the legally represented litigants' assessment of the fairness of the outcome.

  98. This study did not investigate what type of outcomes were reached in the conferences, but the type of outcome, for example an adjournment, settlement, trial listing, or programming order may have had a salient effect on these results. Future research could explore this, as there may be an issue about the nature of outcomes that influences litigants' perceptions of the fairness of the outcomes of the pre-trial conferences, and their satisfaction with them.

  99. In any event, these findings confirm that, in local court mediation, the non-instrumental and relational variables occupy an important place in the socio-psychology of procedural and distributive justice. The findings also confirm the unique contributions of voice and status recognition in litigants' perceptions of distributive and procedural justice (respectively) in court mediation. In this regard, the results accord with the non-instrumental and relational models of procedural justice.[137] In those instances where the results seem to be at odds with these models of procedural justice, the main reason for this seems to be the influence of lawyers and 'law talk' on their clients' perceptions and experience with the pre-trial mediation. Nevertheless, the findings serve to highlight some areas where future research may extend our knowledge on how litigants assess their experiences with court connected dispute resolution procedures, be they mediation or some form of enhanced bilateral settlement.[138]

    Practical implications

  100. Perhaps the more important aspect of these findings is the practical implications they present. It is now clear that litigants, whether legally or self-represented, appear to be especially sensitive to issues of status recognition and voice when assessing the fairness of the pre-trial conference. It is therefore imperative that the courts enact mediation procedures that do not detract from the litigants' perceptions of their social status and their ability to speak out. In addition, it was clear in the studies, that the self-represented litigants rated the politeness of the mediator as higher than the legally represented litigants did. Although this did not seem to detract from the legally represented litigants' higher ratings of distributive justice compared to the self-represented litigants, it is an interesting practical finding and one that requires some thought. Mediators must ensure they conduct the mediation in a dignified manner and they must ensure that they treat the participants with politeness and respect. If there is something about legal representation that inclines the mediator to treat the litigants with less politeness than they normally would then mediators must address this issue.

  101. More importantly, mediators must ensure that they give the litigants a say in the proceedings, and in helping to formulate the solutions to their own disputes. In addition, the mediator must consider the litigants' views when helping them toward resolving their disputes. When litigants are legally represented this may be difficult for the mediator to control. If the mediator does not see the lawyers and their clients until after they have already decided on their outcome, it is hard to ensure that the clients have been given the opportunity to say all they wanted to say. In this study the legally represented litigants rated their ability to express themselves, and the mediator's consideration of their views as high, and this suggests that lawyers and mediators are not impeding this vital part of dispute resolution.

    Conclusion

  102. Overall, these findings suggest that lawyers enhance their clients' perceptions of distributive justice, and do not substantially interfere with their clients' perceptions of procedural justice. Although lawyers seem to have a slightly negative impact on how politely the mediator treats their clients, they do not inhibit any of the important non-instrumental variables such as voice, or the relational variables of status recognition, trust and neutrality. Lawyers appear to influence their clients' perceptions of distributive justice through 'law talk', but this is not in a negative way, as some of the legal commentators have suggested. Rather the 'law talk' seems to enhance litigants' perceptions of distributive justice and through this seems to enhance litigants' satisfaction with the pre-trial conference. A discussion about the reasons for the 'law talk' is beyond the scope of this study; however it is suffice to say that there would be the cynical and not so cynical views about lawyers motivations in boosting their clients' perceptions of the positive nature of their pre-trial conferences.

  103. Finally, the results show resoundingly that litigants and lawyers prefer settlement rather than trial. They also show that settlement does not diminish the litigants' feelings of satisfaction with the mediation, or their perceptions of the procedural or distributive justice of the mediation. Some theorists have suggested that "reforms that increase settlement rates may in fact diminish perceived justice"[139] and they have emphasized how "much of the literature in praise of settlement is about how lawyers and judges view settlement" rather than the litigants themselves.[140] This study presents results that should allay any fears that settlement orientated procedures diminish perceived justice. In addition, it confirms that lawyers and litigants alike desire settlement and it shows that lawyers do not interfere with their clients' views of settlement.

    Part II: Perceptions of Legitimacy

  104. As discussed in the theoretical introduction to the study, perceptions of the procedural justice of legal procedures appear to be strongly correlated with the public's perceptions of the legitimacy of the justice system. Remembering that procedural justice in this context refers to psychological, or procedural justice, this means that if people perceive that a legal procedure is fair then they are more likely to view it, and the justice system in general, as legitimate. As well as the potential influence of lawyers' perceptions of the legitimacy of the mediation procedure being communicated to their clients in the 'law talk' as described in Part I of the study, perceptions of legitimacy are also meaningful because, as the socio-legal literature shows, they can affect litigants' obedience to the rules and procedures, perceptions of the effectiveness of the justice system, willingness to accept a non-binding legal decision and acceptance of innovative procedures in the courts such as mediation. The aim of Part II of this study, then, is to look at how lawyers and litigants perceive the legitimacy of local court mediation.

    The psychology of legitimacy

  105. The literature suggests that the perception of legitimacy may derive from the view that legal authorities are making decisions justly, namely from a perception of procedural justice.[141] As Tyler argues however, "it is not enough to demonstrate that legitimacy matters. It is also important to demonstrate that the psychology of legitimacy is such that it can function to enhance [willingness], obligation and [acceptance]."[142]

  106. This means that if people's views about the legitimacy of a legal authority are so strongly related to their perceptions of the procedural justice of their recent experiences with that authority, then it is imperative to discover the psychology behind those perceptions of procedural justice. For instance, as described in the theoretical introduction to the study, the relational theorists, Tyler and Lind, suggest that the interpersonal aspects of the procedure will show a stronger relationship with disputants' perceptions of procedural justice than outcome concerns. The results from Part I of the study show that, for the most part, Tyler and Lind's psychological relational model of procedural justice does explain litigants' perceptions of the procedural justice of the pre-trial conference. However, it is important also to know if the relational model also explains lawyers' perceptions of procedural justice.

  107. It is important to know whether the public shares the same perspective of the legal system as its legal actors. Lawyers are socialized in law school to a particular perspective of what law and decision making means and hence their psychology of what constitutes a legitimate dispute resolution procedure may differ dramatically from that of their clients. As Tyler suggests there may be a "substantial gap between desirable treatment as described by the clients of the legal system" as compared to those who represent the formal structure of the law, namely lawyers and judges.[143] This part of the study explores the possibility that lawyers and litigants may perceive the legitimacy of mediation differently, and may rate their experience with mediation, in terms of satisfaction, differently. More generally, it seeks to ascertain whether litigants and lawyers view mediation as a legitimate function of the courts.

    Empirical research questions

  108. According to Tyler and Lind,[144] people's evaluations about the legitimacy of local court mediation will largely relate to their perceptions of procedural justice. The first empirical research question examines this proposition and examines whether there are any differences between lawyers and litigants within this proposition. Tyler and Lind also posit that the relational variables will show the strongest correlations with perceptions of procedural justice. The second research question examines this second proposition and compares the results with those from Part I of the study. On a more general level, the final research questions seek to assess lawyers' and litigants' overall perceptions of legitimacy and procedural justice, and their levels of satisfaction with the conference.

    Method: Questionnaire

  109. This part of the questionnaire was adapted from the instrument used by Tyler in his studies that examined peoples' perceptions of the legitimacy of legal authorities.[145] Tyler's theory of legitimacy distinguishes three distinct aspects of legitimacy: the willingness to accept authorities' actions and decisions (question 19 on the client questionnaire, questions 20 and 22 on the solicitor questionnaire); feelings of obligation to follow rules (question 20 on the client questionnaire, questions 19 and 21 on the solicitor questionnaire); and favourable evaluations of authorities (questions 21 and 22 on the client questionnaire, questions 23, 24 and 25 on the solicitor questionnaire). These three subscales were incorporated into the questionnaire and were combined into a single index of legitimacy.[146] For the complete wording of the questions, see the Appendices.

    Results

    Procedural justice and legitimacy

  110. Statistical analyses were used to explore the relationships between procedural and distributive justice and the litigants' and lawyers' perceptions of the legitimacy of the pre-trial conference. In accord with Tyler and Lind's procedural justice theory, litigants' perceptions of procedural justice were significantly positively correlated with their evaluations of legitimacy, indicating that the higher the litigants rated the procedural justice of the conference, the higher they evaluated its legitimacy.[147] In addition, perceptions of distributive justice did not appear to have any effect on the litigants' evaluations of legitimacy.

  111. For lawyers, however, there was a notable absence of the expected correlation involving perceptions of procedural justice and evaluations of legitimacy.[148] In other words, how lawyers rated their perceptions of procedural (and also in this case distributive) justice had no effect on how they arrived at their evaluations of legitimacy. This result is in sharp contrast to the result for the legally represented litigants and indicates that there must be other variables, other than perceived subjective procedural and distributive justice, that affect lawyers' evaluations of the legitimacy of court connected mediation. These variables are likely to be related to objective procedural justice; namely, they are more likely to be the more objective legal concerns of 'procedural fairness' as outlined in the legal literature.

  112. Table 6 displays the results of these analyses. The percentage of explained variance is the adjusted R-squared term, which indicates the percentage of the variance in the dependent variable explained by all the independent variables combined. The table shows that the perceptions of procedural and distributive justice only accounted for 7% of the variance in lawyers' evaluations of legitimacy. This means that 83% of the variation in lawyers' evaluations of legitimacy is unexplained by the variables of either procedural or distributive justice, meaning that there are likely to be other factors that relate more strongly to lawyers' evaluations of the legitimacy of court connected mediation.

    Table 6: Correlates of Perceptions of Legitimacy

    Variable

    Beta Weight

    Legitimacy

    Legally Represented Litigants

    Procedural Justice

    .63***

    Distributive Justice

    .22

    Adjusted R 2.61***

    Lawyers

    Procedural Justice

    .20

    Distributive Justice

    .19

    Adjusted R 2.7

    Correlates of lawyers' perceptions of procedural justice

  113. Again, in accord with Tyler and Lind's procedural justice theory, the results indicate that the relational variables showed the stronger relationship with lawyers' perceptions of procedural justice.[149] In addition, the results show that litigants and lawyers share a similar psychology of procedural justice, in that the lawyers' evaluations of status recognition were more directly related to their perceptions of procedural justice than any of the other relational variables.[150]

    Overall perceptions of procedural justice, satisfaction, and legitimacy

  114. To investigate whether lawyers and litigants differed in any other of their evaluations of the pre-trial conference, a further statistical analysis was conducted.[151] Again, the only significant difference was found in the ratings of distributive justice with the legally represented litigants and the lawyers both viewing their outcomes as fairer than the self-represented litigants did. No differences were found between the groups on any other of the instrumental, non-instrumental or relational variables or in their satisfaction with, or perceptions of the procedural justice of, the conference.

  115. The study did not investigate overall fairness, but instead concentrated on ratings of procedural and distributive justice. Overall, the litigants' and the lawyers' rated the procedural justice of the mediation as high and were generally satisfied with the conference. Meanwhile, the self-represented litigants were less satisfied with the conference than the legally represented litigants and the lawyers, and rated the distributive justice as lower.[152] Finally, I investigated whether there was any difference between the groups on perceptions of legitimacy. No difference between the groups was found and both groups perceived the pre-trial mediation to be a legitimate dispute resolution procedure.[153]

    Discussion of Part II results

  116. The findings of this part of the study have important implications for expanding the theory of procedural justice and legitimacy; and practically, for assisting the civil courts ensure that its users view their settlement mediation procedures as legitimate.

    Theoretical implications

  117. It appears that the Tyler and Lind relational model of procedural justice explains lawyers' and litigants' psychology of procedural justice and litigants' perceptions of the legitimacy of court connected mediation. It does not seem to explain, however, lawyers' perceptions of the legitimacy of a court connected mediation process. The findings of this study suggest that for lawyers, their evaluations about the legitimacy of the pre-trial conference seem to derive from other sources other than from their perceptions of procedural or distributive justice. It appears that the other sources could be the objective criteria suggested by the legal theorists, namely procedural fairness or objective distributive justice (substantive justice). Alternatively, it could be that the pre-trial conference has simply had "legitimacy handed to [it] by its assimilation into the court system"[154] and that the lawyers do not question this. The pre-trial conference is authorized by the courts; it uses court personnel; there are some basic rules for it enshrined in legislation; and it does not take away from the clients their right to 'natural justice', via a trial. Lawyers' perceptions of the legitimacy of local court mediation could relate more to these objective considerations than to perceptions of procedural justice.

    Practical implications

  118. The results of this part of the study again reveal the importance of the status recognition variables. Not only was status recognition the major correlate of perceptions of the procedural justice of the conference for all the participants, but also for the litigants' perceptions of the legitimacy of the conference.[155]

  119. This finding indicates that it is essential that the court mediators conduct their mediations in a polite way that conveys respect for the participants and maintains the dignity of the proceedings, and the dignity of the participants. The litigants and lawyers who participated in this study rated the status recognition and the procedural justice of the pre-trial conference as relatively high, indicating that, in general, the Local Court mediators are successfully attending to these issues.[156]

    Conclusion

  120. The results of this part of the study extend our understanding of litigants' and lawyers' perceptions of the legitimacy of a court connected mediation process. They establish that no 'substantial gap' exists between lawyers' and litigants' perceptions of the procedural justice, or legitimacy of the pre-trial conference, or in their satisfaction with this procedure. In addition, both lawyers and litigants share the same perspective of the legal system and it appears evident that both litigants and lawyers view mediation as a legitimate, satisfying and procedurally (and distributively) just function of the courts.

  121. According to the results of the study, lawyers and litigants also share the same psychological perceptions of procedural justice. That they differ in their evaluations of legitimacy is not an entirely unexpected finding given the 'objectivity' of legal training. Nevertheless, that litigants and lawyers may arrive at their evaluations of legitimacy in different ways is an interesting finding and one that merits attention in future research.

    V. Conclusion

  122. The results of this study deepen our understanding of litigants' and lawyers' perceptions of and reactions to, court connected mediation. We now have a better knowledge of litigants' and lawyers' perceptions of procedural (and distributive) justice in mediation, and a greater understanding of what variables relate to litigants' and lawyers' satisfaction with, and view of the legitimacy of local court mediation. In this regard, the study provides an important extension of socio-legal studies in the civil court mediation domain. Further, it provides evidence that mediation is a subjectively just, satisfying and legitimate dispute resolution procedure for use in our civil courts.

  123. Nevertheless, critics of court connected mediation will still question whether it adds anything to normal bi-lateral settlement, whether it provides worthwhile benefits for the parties, whether it contains any of the promises of private mediation, whether court connected mediators only actively promote monetary settlements, rather than creative, non-monetary solutions, whether lawyers actively sabotage the process by not turning up with their clients or by not fully understanding the process, or whether the mandatory nature of court mediation detracts from its overall usefulness. This study does not address these concerns, but it does show that the users of a court connected mediation process, the pre-trial conference, do view it as a subjectively fair, satisfying and legitimate procedure. It also shows that the presence of lawyers does not detract from litigants' participation in the process but actually enhances legally represented litigants' perceptions of its distributive justice. In addition, it shows that lawyers and litigants share many of the same views of court-connected mediation, and in particular share the same desire for settlement.

  124. There has always been, and always will be, controversy over whether the primary goal of court connected mediation should be to achieve settlement or to facilitate a mutually beneficial solution based on the parties' needs, not on the court's needs. It is not clear from this study whether the solutions reached in the mediations were unique and creative or whether they were purely monetary. In any event, this does not seem to matter. The courts introduced pre-trial conferences to create a "better management of trial listings"[157] (another way of saying to promote settlements) and this has been their aim ever since.[158] That this is also what the users of the court system want is an important finding. The court's objective has also been to ensure that they achieve settlements in a manner that produces fair and just outcomes and procedures, achieves party satisfaction and preserves respect for and confidence in the justice system. That the courts seemed to have achieved this with the pre-trial conference, at least in the subjective sense, is another notable finding.

  125. It was a significant observation from the study, however, that often pre-trial conferences take place solely between lawyers, or at least with one or other of the clients being absent. Mediation is a process that requires direct client involvement, more so than bi-lateral settlement negotiations, or trial;[159] therefore, when lawyers attend pre-trial conferences without their clients they are cutting out an important aspect of the mediation procedure. As Macfarlane points out "clients are the source of many of the ideas and solutions that come out of mediation", and the meeting between the clients in the "presence of an effective third party [can] make a positive difference to the settlement process".[160] Perhaps this is best illustrated by a comment from one of the lawyers in Macfarlane's study; "The presence of the clients in the rooms looking at each other...makes a huge difference in terms of settlement."[161]

  126. This is a sentiment widely echoed and lamented by the pre-trial conference mediators. The local court mediators confirmed the frequent absence of clients from the mediation process and they spoke of their belief that having the two parties present in the room is vital to the chances of settlement.[162]

  127. Having the two parties present in the room is also vital to the promises of mediation. This study has made it clear that lawyers do not negatively interfere with their clients' perceptions of the justice of or legitimacy of court connected mediation, or with their clients' satisfaction with the procedure. What is less clear is how much more could be gained from court connected mediation conferences if increased face-to-face client interactions took place. It seems to be a small step for lawyers to attend mediation with their clients with a clear commitment to allowing their client to participate meaningfully in the mediation. However, as Macfarlane suggests the importance of client participation "may not be apparent to many counsel who operate from a traditional perspective on lawyer/ client relations".[163]

  128. Alternatively, lawyers may still be jealously guarding their legal domain and not wanting to hand over their dispute resolution powers to their clients. Future research could concentrate on untangling the reasons why lawyers attend court connected mediation conferences without their clients.[164] It seems that with increased client participation, more settlements might ensue. More importantly, if lawyers actively encourage their clients to experience the full power of mediation, the clients may experience improvements in their long term relationships with their adversaries, they may experience positive feelings of catharsis as they come to a better understanding of their particular conflicts or disputes, and they may experience the type of self-determination and empowerment that some theorists suggest might lead to an improvement in society as a whole. It may be that with increased client participation, as well as being subjectively fair, legitimate and satisfying, court connected mediation may also come to realize some of the more profound promises of mediation.

Notes

[1] Menkel-Meadow, C, "Symposium: Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or 'The Law of ADR" (1991) 19 Fla. St. U.L. Rev.1,1. Online LEXIS-NEXIS, LAWREV Library (November 11, 2001)

[2] Lind, E Allan, Procedural Justice, Disputing, and Reactions to Legal Authorities (American Bar Foundation Working Paper No. 9403, 1994), abstract

[3] "One of the earliest recorded mediations occurred more than four thousand years ago in Mesopotamia when a Sumarian ruler helped avert a war and develop an agreement in a dispute over land", Carnevale, P.J., & Pruitt, D., G, "Negotiation and Mediation" (1994) 43 Annual Review of Psychology 531, 561. Quote from Fuller, L L, "Mediation - Its Forms and Functions" (1971) 44 S. Cal. L. Rev. 305, 325 quoted in Nolan-Haley, J M, "Court Mediation and the Search for Justice through Law" (1996) 74 Wash. U. L.Q. 47, 53. Online LEXIS-NEXIS, LAWREV Library (November 11, 2001)

[4] Astor, Hilary & Chinkin, Christine M, Dispute Resolution in Australia, (Sydney: Butterworths, 1992), 30-40

[5] See the concluding chapter of Kressel, K & Pruitt, D G (eds) Mediation Research. (San Francisco: Jossey-Bass, 1989) for a comprehensive review of the American research, and The Australian Law Reform Commission, Review of the Adversarial System of Litigation: ADR- its Role in Federal Dispute Resolution Issues Paper 20 <http://www.austlii.edu.au/au/other/alrc/publications/issues/20/ALRCIP20.html> Appendix D (13 November, 2001) for the Australian, Canadian, and UK research and additional American research.

[6] As Lande calls those who believe in the "value of mediation as a dispute resolution technique (particularly in comparison with the value of litigation)", Lande, J, "Getting the Faith: Why Business Lawyers and Executives Believe in Mediation" (2000) 5 Harv. Negotiation L. Rev. 137, 140. Online LEXIS-NEXIS, LAWREV Library (November 26, 2001)

[7] Baruch Bush,Robert A, & Folger, Joseph P, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition, (Jossey-Bass Publications: San Francisco, 1994) cited in Menkel-Meadow, C, "Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases) (1995) 83 Geo L. J. 2663, note 9. Online LEXIS-NEXIS, LAWREV Library (November 11, 2001)

[8] See Welsh, N, "The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization?" (2001) 6 Harv. Negotiation L. Rev. 1,Online LEXIS-NEXIS, LAWREV Library (November 28, 2001) for a comprehensive discussion of self-determination and Bush & Folger, above note 7, for the concept of empowerment. "People become empowered in mediation when they better understand their goals, options, skills, and resources, and then make conscious decisions about how they want to handle a dispute." Lande, J, "How will Lawyering and Mediation Practices Transform Each Other? (2000) 24 Fla. St. UNIVERSITYL. Rev. 839, 860. Online LEXIS-NEXIS, LAWREV Library (November 26, 2001)

[9] Welsh, above n 8, 4

[10] Bush & Folger, above n 7, cited in Welsh, id, 17

[11] Brenner, M et al, "What is "Transformative" Mediation?" (Aug, 2000) Australasian Dispute Resolution Journal 155, 155-56

[12] Nolan-Haley, above n 3, note 31

[13] Flanders, "Case Management in Federal Courts: Some Controversies and Some Results" (1978) 4 Just. Sys. J. 147, 150 cited in Kaufman, I, "Reform for a System in Crisis: Alternative Dispute Resolution in the Federal Courts" (1990) 59 Fordham L. Rev. 1, 28. Online LEXIS-NEXIS, LAWREV Library (November 11, 2001)

[14] Menkel-Meadow, C, "When Dispute Resolution Begets Disputes of Its Own: Conflicts Among Dispute Professionals" (1997) 44 UCLA L. Rev. 1871, 1886

[15] See Brenner et al, above n11, for a full description of how transformative meditation works in practice.

[16] See Stempel, J, " The Inevitability of the Eclectic: Liberating ADR from Ideology" (2000) 2000 J. Disp. Resol. 247. Online LEXIS-NEXIS, LAWREV Library (November 28, 2001) for a fuller discussion of facilitative mediation.

[17] Riskin, L, "Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed" (1996) 1 Harv. Negot. L. Rev. 7, 29, 45 cited in Welsh, above n 8, note 118

[18] Lande, above n 8, 861

[19] Riskin, cited in Welsh, above n17, 29

[20] Menkel-Meadow, C, above n 7, 2663

[21] Nolan-Haley, above n 3

[22] Lande, above n 8

[23] Wissler, R, "The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Courts" (1997) 33 Willamette L. Rev. 565. Online LEXIS-NEXIS, LAWREV Library (November 26, 2001)

[24] Rueben, R, " Constitutional Gravity: A Unitary Theory of Alternative Dispute Resolution and Public Civil Justice" (2000) 47 UCLA L. Rev. 949. Online LEXIS-NEXIS, LAWREV Library (November 26, 2001)

[25] Id, 1045

[26] Ingleby, Richard, In the Ball Park: Alternative Dispute Resolution and the Courts (Melbourne: Australian Institute of Judicial Administration Incorporated, 1991)

[27] Spencer, D, "Mandatory Mediation and Neutral Evaluation: A Reality in New South Wales" (November, 2000) Australasian Dispute Resolution Journal 237

[28] Dearlove, G, "Court-Ordered ADR: Sanctions for the Recalcitrant Lawyer and Party" (Feb, 2000) Australasian Dispute Resolution Journal 12

[29] Ardagh, A & Cumes, G, "Lawyers and Mediation: Beyond the Adversarial System?" (Feb 1998) Australasian Dispute Resolution Journal 72

[30] Tucker, P, "Judges as Mediators: A Chapter III Prohibition?" (May, 2000) Australasian Dispute Resolution Journal 84. See also Astor, Hilary, Quality in Court Connected Mediation Programs: An Issues Paper (Melbourne: Australian Institute of Judicial Administration Incorporated, 2001), p.38-39 for discussion about confidentiality and mediator misconduct.

[31] Naughton, T, "Court-related Alternative Dispute Resolution in New South Wales" (1995) 12 Environmental Planning and Law Journal 373 cited in Law Reform Commission of Western Australia, Court Based or Community ADR and Alternative Forums of Adjudication (pdf Project 92) (Perth: State Government Publishers 1997-1999), 286

[32] Id, 287

[33] Spencer, above n 27, 243

[34] Law Reform Commission of Western Australia, above n 31, 288

[35] McEwen, C, & Maiman, R, "Mediation in Small Claims Court: Achieving Compliance Through Consent" (1984) 18 Law & Soc. Rev. 11

[36] See the concluding chapter of Kressel & Pruitt, above n 5

[37] Pruitt et al, "Long-Term Success in Mediation" (1993) 17(3) Law & Hum. Behav. 313

[38] Kressel & Pruitt, above n 5. See also Kitzmann, K & Emery, R, "Procedural Justice and Parents' Satisfaction in a Field Study of Child Custody Dispute Resolution" 17(5) Law & Hum. Behav. 553 and Wissler, above n 23.

[39] See Spencer above n 27, 240-242, Astor & Chinkin, above n 4, 174-176 and Garth, B, "Observations on an Uncomfortable Relationship: Civil Procedure and Empirical Research " (1997) 49 Ala. L. Rev. 103, 107 for discussion of various studies conducted on whether the introduction of mediation does have any significant impact in terms of costs and delay.

[40] Menkel-Meadow, above n 1, 45-46

[41] Astor, above n 30, 5

[42] Thibaut, John & Walker, Lauren S, Procedural Justice: A Psychological Analysis, (Hillsdale, New Jersey: Erlbaum, 1975); Lind, E A. et al, "In the Eye of the Beholder: Tort Litigants' Evaluations of their Experiences in the Civil Justice System" (1990) 24 Law & Soc. Rev. 953; Tyler, T, " Psychological Models of the Justice Motive: Antecedents of Distributive and Procedural Justice" (1994) 67(5) Journal of Personality & Social Psychology 850

[43] Tyler, Tom R, Why People Obey the Law (New Haven, CT, US: Yale University Press, 1990).

[44] Lind, E Allan, & Tyler, Tom, The Social Psychology of Procedural Justice (New York: Plenum Press, 1988), 3 cited in Fondacaro, M, "Toward a Synthesis of Law and Social Science: Due Process and Procedural Justice in the Context of National Health Care Reform" (1995) 72 Denv. U.L. Rev. 303, note 157. Online LEXIS-NEXIS, LAWREV Library (November 12, 2001)

[45] Lind & Tyler above n44

[46] Rosenfeld, M, "Habermas on Law and Democracy: Critical Exchanges: Habermas's Proceduralist Paradigm of Law: Can Rights, Democracy, and Justice be Reconciled through Discourse Theory? Reflections on Habermas's Proceduralist Paradigm of Law" (1996) 17 Cardozo L. Rev. 791,791 and Habermas, J, "Habermas on Law and Democracy: Critical Exchanges: Part II: Habermas Responds to His Critics" (1996) 7 Cardozo L. Rev. 1477, 1477. Online LEXIS-NEXIS, LAWREV Library (November 28, 2001).

[47] This is the term used in Australian law, sometimes also referred to as natural justice; in American law, it is usually referred to as "due process". See Douglas, Roger & Jones, Melinda, Administrative Law: Commentary and Materials, 2nd ed (Sydney: The Federation Press, 1996), 467-589 and Fondacaro, above n 44.

[48] Lind & Tyler, above n 44, 3 cited in Fondacaro, above n 44, note 187

[49] Salemi v Mackeller (No 2) (1977) 137 CLR 396,452. This Australian Administrative Law case focuses on the principles of procedural fairness.

[50] Fondacaro, M, above n 44, 305

[51] Habermas, above n 46, 794. See also Lind et al, above n 42, saying that "a fundamental feature of due process is that the state accord those who bring cases a dignified hearing", 958.

[52] Tyler, T, "Citizen Discontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform " (1997) 45 Am. J. Comp. L. 871, 877

[53] Gerth, H.H & Wright Mills, C. (eds), From Max Weber: Essays in Sociology (London : Routledge & Kegan Paul Ltd, 1967), 79

[54] Adams, J, "Inequity in Social Exchange" in Berkowitz, L (ed), Advances in Experimental and Social Psychology, vol 2 (New York: Academic Press, 1965) cited in Bos, K et al "Evaluating Outcomes by Means of the Fair Process Effect: Evidence for Different Processes in Fairness and Satisfaction Judgments" (1998) 74 (6) Journal of Personality and Social Psychology 1493, 1493

[55] Lerner M J, "The Justice Motive in Human Relations: Some Thoughts on What we Know and Need to Know about Justice" and Deutsch, M, "Justice in "the Crunch"" (1981) in Lerner M J, & Lerner C (eds), The Justice Motive in Social Behaviour (New York: Plenum, 1981) cited in Tyler, Tom R et al, Social Justice in a Diverse Society (Boulder, Colorado: Westview Press, 1997)

[56] Lind & Tyler, above n 44, 29

[57] Lind, E. A et al, "Individual and Corporate Dispute Resolution: Using Procedural Fairness as a Decision Heuristic" (1993) 38 (2) Administrative Science Quarterly 224, 224

[58] Morris, M, & Leung, K, "Justice For All? Progress in Research on Cultural Variation in the Psychology of Distributive and Procedural Justice" (2000) 49(1) Applied Psychology: An International Review 100, 100; Lind, E. A et al, "Procedural Context and Culture: Variation in the Antecedents of Procedural Justice Judgments (1997) 73(4) Journal of Personality and Social Psychology 767

[59] Fondacaro, above n 44, 305

[60] Ibid

[61] Tyler, Tom R, The Psychology of Legitimacy (American Bar Foundation Working Paper No. 9425, 1994), 5

[62] Tyler, T & Mitchell, G, "Legitimacy and the Empowerment of Discretionary Legal Authority: The United States Supreme Court and Abortion Rights" (1994) 43 Duke L.J 703

[63] Lind et al, above n 42, 984

[64] Lind et al, above n 57 and Pruitt et al, above n 37

[65] Bos et al, above n 54, 1498

[66] Fondacaro, above n 44, 335

[67] Tyler, T & Lind, E A, "A Relational Model of Authority in Groups" (1992) 25 Advances in Experimental Social Psychology 115, 150-162

[68] Tyler et al, above n 55, 87

[69] Thibaut & Walker, above n 42, 546

[70] Brett, J, "Commentary on Procedural Justice Papers" in Lewicki, R, J et al, (eds), Research on Negotiation in Organisations Vol. 1 (Greenwich: JAI Press, 1986), 81-90; Brett, J & Goldberg, S, "Grievance Mediation in the Coal Industry: A Field Experiment" (1983) 37 Industrial and Labor Relations Review 46; Lind & Tyler, above n 44

[71] Lind, E. A et al, "Decision Control and Process Control Effects on Procedural Justice Judgments" (1983) 4 Journal of Applied Social Psychology 338; Tyler, T. R et al, "Influence of Voice on Satisfaction with Leaders: Exploring the Meaning of Process Control" (1985) 48(1) Journal of Personality & Social Psychology 72; Heuer, L B & Penrod, S, "Procedural Preference as a Function of Conflict Intensity" (1986) 51(4) Journal of Personality and Social Psychology 700

[72] Lind & Tyler, above n 44; Schroth, H & Pradhan-Shah, P, "Procedures: Do We Really Want to Know Them? An Examination of the Effects of Procedural Justice on Self-esteem (2000) 85(3) Journal of Applied Psychology 462; Shapiro, D L & Brett, J M, "Comparing Three Processes Underlying Judgments of Procedural Justice: A Field Study of Mediation and Arbitration" (1993) 65(6) Journal of Personality and Social Psychology 1167

[73] Shapiro & Brett, above n 72

[74] Schroth & Pradhan-Shah, above n 72; Tyler & Lind, above n 67.

[75] Tyler & Lind, above n 67

[76] Lind & Tyler, above n 44

[77] The results of my 2000 study showed that voice is a separate effect, so for the purposes of the current study, voice is not included in the relational variable of status recognition. Howieson, J, Procedural Justice in Civil Court Mediation: Exploring the Instrumental and Non-instrumental Processes. Honours thesis. Edith Cowan University, 2000.

[78] Tyler & Lind, above n 67

[79] Tyler, T R, "The Psychology of Procedural Justice: A Test of the Group-value Model" (1989) 57(5) Journal of Personality & Social Psychology 830; Tyler & Lind, above n 67.

[80] Tyler & Lind, above n 67; Schroth & Pradhan-Shah, above n 72.

[81] Garth, B, above n 39, 131; Zariski, A, "Lawyers and Dispute Resolution: What Do They Know (And Think They Know)? - Finding Out Through Survey Research" (1997) 4 (2) E Law - Murdoch University Electronic Journal of Law <http://www.murdoch.edu.au/elaw/issues/v4n2/zaris422.html, para 51 (10 November, 2000).

[82] Garth, above n 39, 131

[83] See Zariski, note 81 above, para 10 where he laments the need for a social scientist - "I now believe that many of the shortcomings of the project may have been averted if additional funding had been available and the project had developed as a collaboration with a social scientist. This is not to suggest that a legal academic need have no familiarity with the social science methodology employed but rather that these techniques may have been applied more efficiently and creatively by a team which included an empirically oriented sociologist for instance". Also see Wissler, above n 23, 565, where the lack of statistical analysis is obvious in sentences such as "Mandatory mediation cases were marginally less likely to settle (46%) than were voluntary mediation cases (62%)". This result may or may not be significant; one cannot tell without statistical analysis.

[84] Howieson, above n77.

[85] Generalizing the results beyond the samples tested should be approached with caution in any event. As with all field studies there is an absence of ability to exert experimental control and this can often generate potential confounds associated with sampling and data collection. For instance, in this study, the response rates were relatively low and the data collection process generated a lack of random sampling and uneven group sizes. In addition, the naturally occurring data produced a restricted range of scores. This led to the violation of the assumptions of linearity and normality, which are necessary for many of the statistical tests used, thus weakening the strength of some of the analyses. In particular, in this study, the results revealed a tendency toward positive skewness of the relational variables. This could have been caused by the relatively low response rate as it may be that those who did not respond to the survey would have rated the relational variables lower than those who did respond. Alternatively, it could have been due purely to the expertise of the Court mediators and may therefore represent a "true" result. There were also other variables inherent in the natural setting that could have had an undesired (in terms of potential confounds) affect on litigants' perceptions of the conference; the litigants were involved in different types of disputes with different rights and interests at stake, and there may have been confounds in the data from such things as the influence of repeat players and mediator performance. These variables are, in general, artifacts of collecting data in a natural setting where it is not always possible to control for potentially confounding variables and although they present limitations in terms of the accuracy of the statistical tests they do not greatly limit the importance of the findings.

[86] Tyler, above n 52, 877

[87] In the 2000 study, there were 103 participants who were all self-represented litigants. Seventy-two were men and 31 were women; 57 were plaintiffs and 46 were defendants; 41 said that they requested the conference, 30 said the other party did and 32 said that the Court ordered the conference. Howieson, above n77

[88] See Astor & Chinkin, above n 4, 99-102

[89] Local Courts Act 1904 (WA) ss 45B (5) (b), (c).

[90] This may include an agreement to adjourn the pre-trial conference, or to progress to trial or for one or both parties to exchange further evidence. It could also include a settlement agreement.

[91] The term used by the lawyers who attend without their clients but who can contact their clients by telephone or mobile phone during the conference or negotiation. Personal observations and conversations with the Court staff suggest that over 75% of the lawyers did not attend with their clients in person. This is further evidenced by the ratio of lawyer to client responses.

[92] From personal conversations with court personnel during the survey period and see Welsh, above n 8, 26 -"To a large extent, the presence of lawyers,... explains why court-connected mediation now looks like a judicial settlement conference."

[93] McEwen, C et al, "Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation" (1995) 9 Minn. L. Rev. 1317, 1394. Online LEXIS-NEXIS, LAWREV Library (November 11, 2001)

[94] Australian Law Reform Commission, see above n 5, para 11.10

[95] Auckland District Law Society's Mediation Month Working Group, "Reluctant to Change" (March 1998) New Zealand Law Journal 91

[96] Rosenberg, J, "In Defense of Mediation" (1991) 33 Ariz. L. Rev. 467, 487-91 and Carbonneau, T E "Alternative Dispute Resolution: Melting the Lances and Dismounting the Steeds" (1989) 170-72 quoted in McEwen et al, above n 96, 1354-55

[97] Hutcheson, P, "Mediation and Lawyers - A Likely Marriage" (June 1998) New Zealand Law Journal 215 and Evans, R, "No Excuses: Ken Marks Calls for Action on Mediation" (August 1994) Law Institute Journal 682

[98] Zariski, A, "Disputing Culture: Lawyers and ADR" (2000) 7(2) E Law - Murdoch University Electronic Journal of Law <http://www.murdoch.edu.au/elaw/issues/v7n2/zariski72nf.html> para 59 (11 November 2001). See also Lande, above n 6, 147 and Macfarlane, J, Culture Change? Commercial Litigators and the Ontario Mandatory Mediation Program, Canadian Law Reform Commission Paper, May 2000, 1.

[99] The sample was limited to lawyers who had participated in a minimum of ten mediations either under the auspices of Ontario's mandatory mediation program or in private commercial mediations.

[100] Macfarlane, above n 98, 12 - 21 identifies five different types of lawyers in relation to mediation: the Pragmatist, True Believer, Co-opter/ Instrumentalist, Dismisser, and Oppositionist.

[101] Id, 69

[102] Id, 64

[103] Ibid

[104] "The types of business outcomes that were specifically mentioned as the result of mediation included: the continuation of a commercial relationship; a new commercial relationship such as trade partners or joint venturing; the completion of a (disputed) sale and purchase agreement; access on preferred terms to a new supplier; agreement to a forbearance period; consent to judgment for a lesser sum; agreement to vacate to avoid eviction proceedings; settlements structured to maximize tax advantages for the parties." Macfarlane, above n 98, 31. See also Lande, above n 6.

[105] Zariski, above n 81

[106] Id, para 42

[107] Lande, above n 6, 220

[108] Ibid

[109] Sarat, A & Felstiner, W L F "Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office" (1989) 98 The Yale Law Journal 1663, 1664

[110] Macfarlane, above n 98, 1

[111] Id, 1669

[112] Rosenberg quoted in McEwen, above n 93, 1354

[113] Id, 1355

[114] McEwen et al, above n 93, 1361

[115] The questions were tested for internal consistency, namely the extent to which the questions in the scale were all measuring the same thing. That is whether all the questions actually reflected instrumental concerns. Cronbach's alpha is the statistic used for this and here, the five questions forming the instrumental scale yielded a Cronbach's alpha of .85. An alpha of zero indicates that the items have no internal consistency. An alpha of one indicates that the items are perfectly correlated. Within that range, the higher values indicate a more consistent scale. See Hills, Adelma, PSY2139: Research Methods in Psychology 1 (Perth: Edith Cowan University, 1994),13

[116] Cronbach's alpha for this scale was .89.

[117] Cronbach's alpha for this scale was .85.

[118] The t-test was used for this analysis. The t-test is used to determine the probability of whether a set of scores are most likely to have come from the same population. That is whether or not the set of scores are so different from each other that it can be said that there are significant differences between the groups. See Hills, above n 115, 61.

[119] The t-test showed the groups differed significantly in their perceptions of distributive justice: t (135) = -2.05, p < 0.5.

[120] Although for the statistical analyses used in the study, namely multiple regression, the correct technical term is 'predictors' of procedural justice, for ease of understanding I will use the term 'correlates' of procedural justice.

[121] The size of the samples (more than 5 times as many subjects as independent variables in any one analysis) enabled the use of multiple regression analyses. Multiple regression is an extension of bivariate correlation and it allows the analyst to determine which of the independent (predictor) variables (in this case, the relational, non -instrumental or instrumental variables) are most directly related to (would be the better predictors) of the dependent (criterion) variable (in this case procedural or distributive justice). Regression analysis removes the combined influence of two variables that are highly correlated with one another (for instance the relational and non-instrumental variables) and shows the independent contribution of each independent variable in correlating with (or predicting) the dependent variable. The R-squared term reflects the percentage of the variance in the dependent variable explained by all the independent variables combined. The R-squared terms are adjusted to correct for the number of independent variables in the equation. The beta weights (ß) indicate how much the dependent variable is explained by each independent variable, in combination with all the other variables. In other words, the beta weights reflect the relative importance of each independent variable in predicting the dependent variable, or, again in other terms, the magnitude of the correlation between the independent variables and the dependent variable. See Hills, Adelma, PSY2139: Research Methods in Psychology 2 (Perth: Edith Cowan University, 1994), 87. The results for the regression analyses are as follows: Self-represented litigants: the independent variables in combination accounted for 55% (54% adjusted) of the variance in procedural justice, and R was significantly different from zero, F (2, 102) = 41.00, p < .001. The standardized regression coefficients (beta weights) for procedural justice were: relational, ß = .54, p < .001; non-instrumental, ß = .15, p > .05 (not significant); instrumental, ß = .19, p < .05. For distributive justice, the independent variables in combination accounted for 37% (35% adjusted) of the variance in distributive justice, and R was significantly different from zero, F (2, 102) = 19.57, p < .001. The standardized regression coefficients (beta weights) for distributive justice were: relational, ß = .30, p < .05; non-instrumental, ß = .01, p > .05 (not significant); instrumental, ß = .44, p < .001. Legally represented litigants: the independent variables in combination accounted for 71% (69% adjusted) of the variance in procedural justice, and R was significantly different from zero, F (3, 32) = 24.22, p < .001. The standardized regression coefficients (beta weights) for procedural justice were: relational, ß = .63, p < .001; non-instrumental, ß = .34, p < .05; instrumental, ß = -.12, p > .05 (not significant). For distributive justice, the independent variables in combination accounted for 47% (42% adjusted) of the variance in distributive justice, and R was significantly different from zero, F (3, 32) = 8.66, p < .001. The standardized regression coefficients (beta weights) for distributive justice were: relational, ß = -.04, p > .05 (not significant); non-instrumental, ß = .55, p <.05; instrumental, ß = .22, p > .05 (not significant). Table 2 in the text presents these statistical results.

[122] See distributive justice theorists, above n 54, 55, and Tyler et al, above n 55 who noted the correlation of the non-instrumental processes with perceptions of distributive justice. Tyler et al suggests that this may derive from a link between equity and need principles, and the nature of the social relationship among the parties. If the parties share important social ties then the social (or relational) aspects of those ties are thought to correlate strongly with distributive justice perceptions (remember that Tyler and Lind include voice in the relational variable of status recognition).

[123] See explanation of beta weights in note 124 above.

[124] Distributive justice for this group was shaped more by the instrumental concerns therefore those results are not relevant here. The beta weights for the procedural justice analysis were: voice, ß = .47, p < .01; status recognition, ß = .34, p < .0; neutrality, ß =.12, p > .05; trust in the mediator, ß = -.08, p > .05; and ventilating, ß = -.37, p > .05.

[125] The beta weights for the procedural justice analysis in the legally represented group were: , ß = .23, p > .05; status recognition, ß =..51, p < .01; mediator neutrality, ß = .17, p > .05; trust in the mediator, ß = .02, p > .05; and ventilating, ß = .15, p > .05). The beta weights for distributive justice were: voice, ß = .68, p < .05; status recognition, ß =.32, p > .05; mediator neutrality, ß = -.3, p > .05; trust in the mediator, ß = -.10, p > .05; and ventilating, ß = .25, p > .05). Table 3 in the text presents these statistical results.

[126] The mean for voice was 3.8. As the mean falls below the mid-point of 5 for this scale (2.5 is the mid-point on the Likert-type scale of 1 = strongly agree and 5 = strongly disagree and this is multiplied by two as there were two questions that from the voice variable) this indicates that the litigants' agreed they had the opportunity to have their say and agreed that the mediator considered their views.

[127] All the variables means fell below the mid-point on the Likert scale.

[128] Politeness: t (135) = 2.35, p < 0.5. Means - legally represented, 1.58; self-represented, 1.21.

[129] The t-test results were: outcome control: t (135) = -1.26, p > 0.5; process control: t (135) = .19, p > 0.5.

[130] This is evidenced by the mean of the outcome control (represented, 2.63; self-represented, 2.95) and process control (represented, 2.91; self-represented, 2.81) evaluations for both groups being above the mid-point of the measurement scale ie. 2.5.

[131] Satisfaction for the self-represented litigants: the variables (procedural and distributive justice) in combination accounted for 56% (55% adjusted) of the variance in satisfaction, and R was significantly different from zero, F (2, 102) = 64.90, p < .001. The beta weights for the satisfaction analysis were: procedural justice, ß = .34, p < .001; distributive justice, ß = .49, p < .001.

[132] Satisfaction for the legally-represented litigants: the variables (procedural and distributive justice) in combination accounted for 54% (51% adjusted) of the variance in satisfaction, and R was significantly different from zero, F (2, 32) = 18.18, p < .001. Distributive justice was the only significant correlate of satisfaction for the legally represented litigants, ß = .76, p < .001; procedural justice, ß = -.03, p > .05 (not significant). The results are presented in Table 4 in the text.

[133] X2 (4, n = 34) = 10.71, p < 0.5. The chi-square is a correlational statistical analysis that is used when the data is collected in frequencies as the data for these particular questions were. See Hills, above n 115, 115

[134] X2 (4, n = 187) = 0.244, p > 0.5.

[135] In the self-represented sample, of the 41 litigants who settled their cases only five said they would have preferred to go to trial and the remaining 36 said they were pleased it had settled. Of the 58 litigants who did not settle their cases and the four who were returning to conference only seven said they were happy to go to trial and 55 would have preferred it if their cases had settled at the conference. In the legally represented sample, of the 21 litigants who settled their cases only three said they would have preferred to go to trial and the remaining 18 said they were pleased it had settled. Of the 13 litigants who did not settle their cases only one said he or she was happy to go to trial and 12 said they would have preferred it if their cases had settled at the conference. In the lawyers' sample, of the 24 lawyers who settled their cases only one said he or she would have preferred to go to trial and the remaining 23 said they were pleased it had settled. Of the 28 lawyers who reported that the case did not settle again only one said he or she was happy to go to trial and the remaining 27 said they would have preferred it if their cases had settled. These results are presented in Table 5 in the text.

[136] However, several procedural justice theorists who have conducted studies in the field have previously noted that the non-instrumental variables strongly correlate with perceptions of distributive justice, and in this way the findings still support the general perspective shared by various procedural justice theorists including Shapiro & Brett, above n 72; Lind et al, above n 57; Kitzmann & Emery, above n 38 and Tyler et al., above n 55

[137] There are some slight discrepancies which I discuss in my 2000 study but which are beyond the scope of this present study. See Howieson, above n 77, 34

[138] For instance, Lind et al, above n 42, 966, found that litigants involved in judicial settlement conferences were significantly less satisfied with their outcomes than those who engaged in bilateral settlement.

[139] Lind et al, above n 42, 982

[140] Ibid

[141] Tyler, T & Darley, J, "Is Justice Just Us? A Symposium on the Use of Social Science to Inform the Substantive Criminal Law: Building a Law-abiding Society: Taking Public Views About Morality and the Legitimacy of Legal Authorities into Account when Formulating Substantive Law" (2000) 28 Hofstra L. Rev. 707

[142] Tyler & Mitchell, above n 62, 733

[143] Tyler, above n 52, 894

[144] Tyler & Lind, above n 67, 159

[145] Tyler, above n 61, 15

[146] Ibid. Cronbach's alpha for the client scale of legitimacy was .91 and for the solicitor scale of legitimacy was .83, indicating that these scales were both reliably measuring legitimacy.

[147] The two independent variables (distributive and procedural justice) in combination accounted for 64% (61% adjusted) in the variance of perceptions of legitimacy for represented litigants, and R was significantly different from zero, F (2, 32) = 26.14, p < .001. Procedural justice was the only significant correlate of legitimacy for the represented litigants, ß = .63, p < .00; distributive justice, ß = .22, p > .05 (not significant). Table 6 in the text presents these statistical results.

[148] For the lawyers the two independent variables in combination accounted for only 11% (7% adjusted) of the variance in perceptions of legitimacy and R was not significantly different from zero, F (2, 47) = 2.8, p < .05.

[149] Part I of the study showed that the relational concerns showed the stronger relationship with procedural justice for the legally represented litigants, see above n 124. The independent variables (relational, non-instrumental and instrumental variables) in combination accounted for 53% (50% adjusted) of the variance in lawyers' perceptions of procedural justice, and R was significantly different from zero, F (3,44) = 15.80, p < .001. The beta weights for the procedural justice analysis in the lawyer group were: relational, ß = .74, p < .001; non-instrumental (in this case only the voice variable), ß = -.02, p > .05; and instrumental, ß = .02, p > .05.

[150] Status recognition was the only significant correlate of procedural justice for the lawyers, ß = .51, p < .01. Status recognition was also the only independent relational or non-instrumental correlate of legitimacy for the legally-represented litigants, ß = .55, p < .05.

[151] Analysis of variance ("ANOVA") is an extension of the t-test used to compare differences between more than two groups. The result of the ANOVA, F (2,186) = 3.08, p < 0.5, revealed that the only significant difference was between the self-represented group and the lawyers and legally represented groups on the variable of distributive justice. The means for distributive justice were: lawyers, 2.33; legally represented litigants, 2.24; and self-represented litigants, 2.72.

[152] Procedural justice means: lawyers, 1.73; legally represented litigants, 1.91; self-represented litigants, 1.92. Satisfaction means: lawyers, 2.39; legally represented litigants, 2.45; self-represented litigants, 2.71. Status recognition means (the midpoint for status recognition is 7.5) - lawyers, 4.67; legally represented litigants, 5.10; self-represented litigants, 4.38.

[153] As indicated by the means: lawyers, 1.88 and litigants, 1.91(ie below the 2.5 mid point).

[154] Menkel-Meadow, C, above n 1, in Welsh, above n 8, 25.

[155] See, above n 152

[156] See, above n 152

[157] Law Reform Commission of Western Australia, above n 31, 270

[158] Ibid

[159] Macfarlane, above n 98 points out that "as a matter of practice, clients are far more likely to be directly involved in mediation, than in settlement negotiations in a traditional adversarial model", 33.

[160] Ibid

[161] Id, 26

[162] Personal communication with Clerks of the Local Court in Perth.

[163] Macfarlane, J "Culture Change? Commercial Litigators and the Ontario Mandatory Mediation Program" Canadian Law Reform Commission Paper, May 2000 (Draft), 36

[164] Currently the legislation (Local Courts Act 1904 (WA) s 45B (4)) provides that "Unless the magistrate otherwise directs, all parties given a notice of pre-trial conference shall attend the pre-trial conference...". The wording of the provision does not make it mandatory for clients to attend the conferences. Perhaps the courts should consider amending the legislation to compel clients to attend the conferences. Keenan concludes his treatise on client involvement at pretrial conferences as follows "It was contended that the participation of [clients] could provide windfalls for the clients, the attorney-client relationship, and the judicial system that are not currently attainable. In short, ... an important ingredient for the success of modern civil [dispute resolution] -- greater party involvement -- should be added to the current recipe of procedural techniques used by the courts today." Keenan, R "Rule 16 and Pretrial Conferences: Have we Forgotten the Most Important Ingredient" (1990) 63 S. Cal. L. Rev. 1449, 1513


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