[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