Justice via chat? How litigants’ preferences and attorneys’ recommendations influence the choice to use online dispute resolution.

Abstract

There is a significant need for empirical evidence concerning how litigants compare and choose between various modalities of online dispute resolution (ODR) and traditional in-person mediation for resolving legal disputes. To fill this need, we examined three potentially relevant psychological factors: (a) baseline attitudes toward in-person, video, and text-based mediation; (b) past communication style used by litigants; and (c) expert advice via attorney recommendations. We utilized a 2 × 3 × 3 design with communication style as a between-subjects variable, mediation modality as a within-subjects variable, and attorney recommendation randomized as either aligning with or differing from the participant’s baseline preference across 261 participants. We also identified the factors that litigants believe influence their decisions and examined how these factors shape their perceptions and ultimate choice. Participants read two cases and indicated their preferred mediation modality for each by ranking and rating the three modality options. They then learned which option their hypothetical attorney recommended and ranked and rated the options again. Using a mixed-model factorial analysis of variance, we found that (a) parties generally disfavored text-based mediation; (b) parties were swayed by their attorneys’ modality recommendation; and (c) the influence of attorney recommendation was tempered when the attorney suggested text-based mediation. The findings have implications for both legal psychology and policies surrounding ODR, including the current trend in state courts to offer text-based ODR.