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Procedural Fairness – How the Perception of Fairness Affects Client Decision Making

Procedural Fairness

Client satisfaction with his/her lawyer and confidence in the legal system can markedly affect settlement of cases. There is an excellent journal article authored by Professor Donna Shestowsky titled “How Litigants Evaluate the Characteristics of Legal Procedures: A Multi-Court Empirical Study”. In great detail and with extensive documentation, Professor Shestowsky discusses how various litigation resolution formats affect the perceptions of litigants in terms of was the result fair. Issue of perceived control or loss of control are major factors.

As Professor Shestowsky says:

On one end of the scale, negotiation offers participants control over both the process and outcome and does not involve a third-party neutral. On the other end, arbitration and trial empower third-party neutrals to determine the outcome of a dispute and impose formality on the process. Mediation, existing in the middle of the spectrum, utilizes a third-party neutral,but allows parties to shape the process and control the outcome.

A trial lawyer knows that issues of control and fairness are critical to client satisfaction. These proceed the result and have an importance separate from (although obviously related to), the ultimate outcome. It is this loss of control that drives most settlements. Absent uncertainty on both sides a settlement is unlikely. An experienced judge may deliberately create uncertainty in order to facilitate settlement.
An experienced litigation lawyer will be aware that settlement offers must be communicated to their clients (by ethical rules). However, a clever opponent will make an offer at a time when the other side feel weak. This “settlement offer” is not an actual offer, it is a tool to force the opposing attorney to discuss the outcome of the case at a time when procedural uncertainty is greatest. (Such as when a motion has been lost.) On the other hand, court cases do often turn on a dime. There is a strategy to make settlement offers when one is winning in order to lock in the gains. In addition, when one is winning the client may be more amenable to settling as he/she feels vindicated.

It is important to recognize that a mediator has two somewhat conflicting roles he/she must ensure that the litigants feel empowered. The mediator must also ensure that both sides have uncertainty.

We often get calls from clients who wish to switch lawyers due to perceived procedural inequities or problems during settlement discussions. In the vast majority of those cases we decline to accept the client – not because we don’t want the work but because we perceive that the attorney is being honest with the client, doing an excellent job and it is perception issue or communication issue that needs to be addressed.

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