What Process Do Disputants Want? An Experiment in Disputant Preferences

A unique empirical study into the high density housing sector was used as a domain for the development of an alternative model of dispute management to that contained in the relevant statutory regime. This formed the basis for a simulation that was empirically tested on two hundred and fi fty-two participants at three levels. These levels were their preferences, their perceptions of justice and some elements of effi ciency. Each of these levels was tested in relation to three processes: mediation followed by arbitration conducted by the same person (‘Med/Arb.Same’); mediation followed by arbitration conducted by a different person (‘Med/ Arb.Diff’); and arbitration followed by mediation conducted by the same person (‘Arb/Med’). This article describes that area of the research concerned with preferences. The research was constructed around two content theories: the ‘instrumental model’ and the ‘relational model’. The instrumental model is principally concerned with the distribution of control in intervention processes. Control theory in particular underpinned the preference research. The study is important because of the rudimentary state of knowledge in this area and addresses two important questions: First, how do disputants make procedural preferences? Second, will these preferences impact on their perception of fairness of the process actually used? The fi ndings demonstrated that participants preferred the Med/Arb procedure over Arb/Med. Med/Arb.Same was by far the most preferred process. This was highly consistent across the experimental conditions. That is, the ability to mediate a matter fi rst to potentially deny the imposition of the arbitration option was highly preferred. Participants’ reasons for these preferences could be explained by reference to their need for control rather than what was more just or fairer. However, their subjective rationales for choosing a particular process were largely based upon fairness perceptions. Party role, gender, or status of residence seemed to have little impact upon the preferences made or the reasons for those preferences. Empirical fi ndings with respect to preferences are especially important given that courts and tribunals in Australia are currently experimenting and trialling various ADR processes in order to meet the policy directions of government or to improve their case management practices. Implications for dispute system design are discussed.