Courts in Australia are searching for ways to make their processes cheaper, faster and fairer. Their main strategies are to try to make procedures simpler, to give judges more responsibility for managing cases and, perhaps most significant of all, to encourage litigants to resolve their disputes through less formal processes than trial. Many courts have introduced voluntary, or in some cases compulsory, alternative dispute resolution (ADR) procedures. These developments have been heralded as offering real improvements in access to justice for ordinary litigants. However, supporters as well as critics have acknowledged that ADR needs more critical examination than it has received to date, and there are concerns that the current raft of court reforms may deliver cheaper but less satisfying, or even second class, justice for some litigants.
How do litigants feel about their experiences of litigation, and what aspects of the process affect their satisfaction with it? A recently completed Justice Research Centre report, Plaintiffs' Satisfaction with Dispute Resolution Processes by Marie Delaney and Ted Wright, describes a detailed study of plaintiffs' perceptions of four dispute resolution procedures - trial, arbitration and pre-trial conference in the New South Wales District Court's Sydney registry and private mediation through the New South Wales Law Society mediation program.
The study adds to our understanding of how plaintiffs experience different dispute resolution processes and how different factors influence their perceptions of justice. These factors include the actual cost, delay and outcomes of the litigation. They also include factors such as plaintiffs' expectations of the process, feelings of control, participation, comfort, bias and perceptions of their lawyers.
The focus of court reform has, to date, been on cost and delay - concerns which are partly but not entirely about litigant, and community, satisfaction with courts. The Justice Research Centre study provides some experience in evaluating this goal of the reform process, that is litigant satisfaction, directly.
The main findings of this study were:
Plaintiffs were asked how fair they perceived the process to be, how satisfied they were with its outcome, and how satisfied they were with the legal system generally. The figure below shows the proportion of plaintiffs who thought their procedure was fair and who were satisfied with the legal system, across the four procedures.
Switch argument not specified. Most pre-trial conference plaintiffs felt the procedure to be fair and were satisfied with the legal system. Somewhat fewer mediation plaintiffs, and fewer still arbitration and trial plaintiffs, spoke positively about their experiences. A similar result was found for plaintiffs' satisfaction with the outcome of their claim.
The very positive perceptions of pre-trial conferences and, to a lesser extent, mediation may go some way in supporting the moves by courts to encourage, or even direct, litigants to use alternative dispute resolution procedures. In contrast, little more than half the plaintiffs at trial and arbitration were satisfied, while slightly more thought the procedure was fair. These figures perhaps confirm current apprehensions about litigant dissatisfaction with the civil process.
Outcome, cost, delay
The greater the amount of award or settlement, the lower the proportion paid in legal fees, and the shorter the duration, the more plaintiffs perceived the procedure to be fair and the more satisfied they were.
Several plaintiffs' characteristics were looked at and only one, language other than English, was found to be important. It appears this may be due to language barriers to understanding and apprehension about prejudice. This indicates, as do a number of findings in the report, the importance of understanding and communication to plaintiffs' satisfaction.
Whether the outcome conformed to plaintiffs' expectations, whether they felt the litigation took as long as it should have, and whether the cost was perceived to be good value for money were all factors affecting satisfaction. This draws attention to the need to ensure that litigants' expectations are informed and realistic.
Similarly, whether plaintiffs felt they participated in the process and had control over the outcome affected their satisfaction. Whether or not they understood the process was also important. Moreover, it mattered whether they felt the process was careful, dignified, comfortable and unbiased.
A considerable proportion (44%) of plaintiffs felt they could not completely trust their lawyers and 17 percent did not feel their lawyers had a good understanding of their case. These plaintiffs were much less likely to be satisfied than plaintiffs who did feel their lawyer understood their case and could be trusted.
The importance of all of these factors suggests that lawyers have a significant role to play in ensuring client satisfaction through good communication.
This study demonstrates that plaintiffs' satisfaction is affected by more than just cost and delay. It involves judgements about the quality of dispute resolution processes. The results direct the attention of reformers to features of dispute resolution procedures which might enhance factors associated with satisfaction, or diminish factors associated with dissatisfaction. Understanding what affects litigants' satisfaction may provide some direction along the path of significant and effective civil process reform.
1. This research brief summarises work published in Plaintiffs' Satisfaction with Dispute Resolution Processes: Trial, Arbitration, Pre-trial Conference and Mediation (1997) which is available from the Justice Research Centre