How Role and Framing Influence Litigants’ Perception of Civil Procedure

Abstract

The interdisciplinary research between psychology and civil law is relatively new. In this article we discuss the issue of why parties in a civil trial choose litigation rather than informal settlement and analyse the different perceptions of plaintiffs and defendants which may have an influence on their procedural choices. Civil court statistics in Germany and other countries show a remarkable asymmetry in terms of winning or losing a case. Defendants lose approximately three times more often than plaintiffs. Proponents of framing theory argue that this asymmetry cannot only be explained on the legal merits of a case alone. On the one hand, defendants adopt a loss frame, because they are accused of some wrongdoing, which they are expected to compensate for. Plaintiffs, on the other hand, adopt a gain frame, because they expect some positive returns. This suggests that litigants may differ in their assessment of procedure, because different aspects of the same situation may be salient to them. In the context of a study involving participants who chose legal mediation rather than adjudication to settle their disputes, “plaintiffs” and “defendants” were asked to evaluate their experiences in retrospect on procedural outcome and procedural fairness. Our analyses show that defendants and plaintiffs differ in their assessments of fairness and outcome significantly. Disputants are sensitive to different procedural factors when they assess outcome and procedural fairness. The divergent perceptions based on the respective position in a trial may in part explain the asymmetry of civil outcome and require further research.