ESCALA VALORATIVA  MUY VALORADO: Entre 40 y 50 pases recibidos

In 2001 NADRAC stated that:

Despite their methodological shortcomings, research studies appear to support some of the claims of ADR, namely that it is responsive, quick, fair and informal, and that it is cheaper than litigation. Most parties appear to value ADR, and seem capable of making distinctions between substantive satisfaction and procedural satisfaction in that, while they may be unhappy with the outcome of the dispute, they appreciate the fairness of the procedure and the competence of practitioners.447

This research raised some questions about the ability of parties to make the distinction between procedural and substantive ‘satisfaction’. Clearly, those parties who obtained an adverse outcome went on to judge, with significantly less satisfaction, the procedural, interpersonal and informational justice elements of the process. The pervasive view in the literature, that parties who receive a fair process will put up with less fair outcomes, may be right up to a point. However if the outcomes are particularly adverse then the process is likely to be considered less fair. In other words the outcomes and other elements are symbiotic and cannot be as easily separated as commentators may conclude. There may be a tendency amongst some policy makers and commentators to perhaps overstate or conflate the ability of ‘good process,’ as exemplified in ADR processes, to negate the impact of adverse outcomes. The research in the justice literature indicates a high correlation between satisfaction with outcomes and process and a lesser relationship between the former with interpersonal and informational elements. That is, as one goes up the others go up and vice versa. Whilst ‘good process’ may cause parties to rate adverse outcomes less adversely than otherwise, this may only go so far. This research clearly demonstrates that adverse outcomes have an impact upon how ‘good’ the process is perceived overall. The

complainants, as a group, appeared to be using a simple heuristic to judge the fairness of the process overall, although only the outcome had been manipulated.448

What may be useful in future research is to graduate the distributive outcomes in an experimental situation in relation to their adverse perception in the eyes of one group of participants and measure the impact this would have on their perception of the various justice elements. It would be interesting to have a more balanced outcome where one issue was decided in favour of one side and one for the other, rather than in this research where the outcomes, whilst based upon the actual outcomes of the real life cases, heavily favoured the respondents on both the major issues of dispute. This could then be varied to have more nuanced outcomes where different elements of the disputes in issue went either way in varying degrees. The differing outcomes could be rated in terms of their adversity for either side in the dispute and this then analysed in terms of the impact on fairness judgements.

The other aspect which was not studied in this research is the question of legal costs and their impact upon the negotiation habits and perceptions of the disputants in regards to outcomes.449 If costs had also been awarded after arbitration to the ‘winner’ in the experimental conditions in this research, then the perception of fairness may have been further impacted. Further, if legal costs were in issue then the negotiating behaviour of the parties and the way in which the third party intervened may have changed. Because this is not a significant aspect of OC disputes management at the moment in Victoria it was not included in the research design.

The other salient aspect of the outcomes and their impact upon fairness perceptions in this research was that the fairness perceptions of the respondents who most benefitted was not significantly changed. Rather, the fairness perceptions of the complainants dropped significantly to produce the change between them and the respondents. What this demonstrates is that the loser in an arbitrated outcome is likely to have their fairness perceptions impacted adversely whereas the winner’s perceptions are not positively impacted.

448 _{See Chapter 5.5; Lind, "Thinking Critically About Justice Judgments" above n 235, 220-26.}

449 _{For an overview see S Bibas, “Plea Bargaining Outside the Shadow of Trial” [2004] Harvard Law Review,} SSRN: http://ssrn.com/abstract=464880 or doi:10.2139/ssrn.464880;Macey-Dare, above n 381.

This is contrasted with those cases where the parties were able to reach a settlement in the mediation. In these cases the complainants and respondents were not significantly apart in their justice perceptions. Nor did those parties who did not reach agreement at the time of the mediation significantly differ in their responses on the four justice measures from those who did. What is interesting about this aspect is that the making of an agreement did not raise or lower the justice scores. It is often assumed that parties’ subjective perceptions of fairness will rise with an agreement. What this research indicates is that neither at the post-mediation or post-arbitration stages of the process did the making or imposition of an agreement make any significant difference to fairness perceptions, excepting for those who ‘lost’ in the arbitration. Strikingly, the respondents fairness ratings remained constant between the mediation and arbitration phases, indicating perhaps that ‘winners’ are able to distinguish between the outcome and the other aspects of justice. Perhaps the outcome of winning is not as unexpected for disputants and therefore has less impact upon their perceptions of fairness. This would be another aspect of research that could be further explored.

Also, participants in the experiment seemed to distinguish between the preferences they had made and their fairness judgements. In fact the most preferred procedure (Med/Arb Same) scored slightly lower on the justice scores at the post mediation phase than the other procedures. However, this was not at significant levels. Therefore, the participants did not relate their fairness perceptions to their preferences which were highly correlated with perceptions of control. Whilst the reasons given for the preferences, as shown in Chapter 4.6, indicated a clear majority of participants justified their decision upon procedural justice grounds, this was not related to any one particular procedure. That is, whilst the major rationale for choosing the procedures in the way they did was based upon procedural fairness ideas, this did not seem to cause them to favour one procedure over another.

The other key aspect of the justice research was that there was no significant difference in the justice scores between the different processes. This indicates that parties were not affected by the placement of arbitration before mediation or the presence of a different third party. These differences were not based upon role types,

gender, ethnicity or housing status. For dispute system designers this information is useful.