THE RISE OF TWO-WAY COMMUNICATION ALTERNATIVE DISPUTE RESOLUTION MECHANISMS
Competition for the current one-way communication in Austrian jurisdiction.
Master Communication Science | Corporate Communication Supervisor: Dr. Jim Slevin
Master thesis
Date of submission: June 23, 2015 Student name and student number:
Abstract
In a society that is becoming more and more complex every day, flexible and adaptive legal regulations are necessary. The current Austrian jurisdiction does not make much use of two-way communication tools whereby communication is negotiated and speaker and receiver listen to each other to reach a mutually beneficial situation. This can lead to an unsatisfactory outcome for the parties. Alternative dispute resolution mechanisms (ADR), on the other hand, make extensive use of two-way communication. The present research examines the effect of the use of two-way communication on the level of satisfaction with the outcome. Therefore, traditional court trials are compared with mediation processes. Furthermore, the moderating effect of the duration of the court trial/mediation, the sustainability of the outcome, the flexibility of the proceedings and power imbalance are being analyzed. It was hypothesized that all moderators (except for power imbalance) would strengthen the positive effect of two-way communication on the outcome satisfaction. Regarding power imbalance, the hypothesis suggested that this moderator would weaken the positive main effect. Using regression analyses to test these moderating effects, the study could not find evidence to support them. Only the moderating effect of power imbalance in the relationship between two-way
communication and the satisfaction with the outcome of a court trial could be proven. Overall, the results revealed that, being asked about the satisfaction with the outcome in general, people are more satisfied with the outcome of a mediation process rather than with the outcome of traditional court trials. Furthermore, the higher the level of two-way
communication is, the higher is the level of satisfaction in general, for both court trials and mediation. In conclusion, the outcome of this study helps to gain awareness of the influence of communication in solving conflicts and how it affects the satisfaction with the outcome. This research offers knowledge about the interplay between the kind of communication used and the satisfaction with the outcome, put in a legal environment. Therefore, legal
practitioners can use knowledge gained from the field of communication science to enrich their techniques and practices.
Key words: Alternative dispute resolution, court trials, mediation, outcome satisfaction, two-way communication
Table of Contents Abstract ... 1 Introduction ... 3 Theoretical background ... 5 Two-way communication ... 5 Outcome satisfaction ... 8
Alternative Dispute Resolution ... 10
Method ... 16 Case description ... 16 Sample ... 17 Procedure ... 17 Measures ... 18 Results ... 21 Hypotheses ... 23 Conclusion ... 29 Discussion ... 31 References ... 34 Appendix A ... 38 Appendix B ... 55 List of Figures Figure 1 - Conceptual Model for Hypothesis 1 ... 13
Figure 2 - Conceptual Model for Hypothesis 2 + 3 ... 14
Figure 3 - Conceptual Model for Hypothesis 4 ... 15
Figure 4 - Conceptual Model for Hypothesis 5 ... 16
Figure 5 - Moderating effect of power imbalance on the relationship between the level of two-way communication and the level of satisfaction ... 28
List of Tables Table 1 - Descriptives, Skewness and Kurtosis ... 22
Introduction
In 2009, the class action of the Verein für Konsumenteninformation1
against AWD2 for negligent advice in connection with Immofinanz3 and Immoeast4 shares in Austria, attracted a lot of attention not only in Austria, but also border-crossing. 25 000 consumers were
dissatisfied with the current jurisdiction and legal services in Austria as the jurisdiction was not suited for such a court trial. After unsuccessful negotiation in court, the conflict could eventually be solved by means of mediation in 2013(“Falschberatung in Österreich”, 2013; “VKI-Einigung mit AWD”, 2013, “VKI-Sammelklage gegen AWD zulässig”, 2013).
This example displays a gap in legal protection in the Austrian jurisdiction. In the present paper, jurisdiction is defined as the “power of a court to adjudicate cases and issue orders (“Jurisdiction”, n.d., para. 1). Jurisdiction is essential for society, especially for court. Court trials can be expensive, ineffective and inflexible. The current jurisdiction is not suited to satisfyingly solve the variety of cases that are brought to court. Cases, such as family matters or disputes between neighbors, require a different kind of communication between the parties and a different handling of the case than, for instance, inheritance disputes. This gap in legal protection has lead to dissatisfaction among the people, which encouraged the search for alternatives.
Nowadays, parties of a dispute have various options of how to solve their conflict. While a court trial used to be the only way to solve a conflict with the aid of a third party in the past, new ways of dispute resolution arose. This way, parties can utilize the aid of a neutral person without necessarily feeling intimidated by a court trial.
The academic literature as well as the practical field extensively deals with the topic of alternative dispute resolution methods (Delgado, Dunn, Brown, Lee, & Hubbert, 1985). ADR mechanisms offer many advantages that make parties choose them over a court trial. The most common advantages are those of reduced costs, shorter duration, more flexibility regarding the proceedings and less power imbalance between the parties (Sander, 2014; Naughton, 1990; Delgado, Dunn, Brown, Lee & Hubbert, 1985).
The two main forms of alternative dispute resolution are arbitration and mediation. In the framework of this paper, the focus will lay on mediation as this form to solve disputes
1 Consumer advocacy group.
2 German subsidiary financial consulting company of the Swiss insurance company Swiss Life.
3 A real estate company seated in Vienna, Austria.
4 A subsidiary company of Immofinanz, also seated in Vienna, Austria. Immoeast is also a real estate company, specialized on the market in Eastern Europe and Central Europe.
incorporates the main elements of ADR mechanisms and therefore is highly representative. Since the study is based on Austrian citizens, the legal regulations in Austria are of interest.
Mediation is already used in various fields, such as family disputes, neighbor disputes as well as disputes in schools, the public sphere or in B2B relationships. However, given the fact that mediation as well as other forms of ADR seems to become more and more popular every day, it is also likely that the fields of application will widen. This statement is supported by the fact that the Austrian government is currently working on a draft law implementing alternative forms of dispute resolution with regards to purchase contracts and service
contracts between an entrepreneur seated in Austria and a consumer resident in a EUcountry (“Bundesgesetz über alternative Streitbeilegung in Verbraucherangelegenheiten”, 2015). Even though a lot of material on alternative dispute resolution has been written so far and is still in progress, there is clearly the need for more in-depth research on the gap between the legal aspects and the communicational aspects of the topic in question. This paper aims to fulfill this need by taking a close look at the communicational facets of alternative dispute resolution methods, and mediation in particular. To clarify, this study examined whether two-way
communication is responsible for the satisfaction with the outcome. Mediation and other forms of ADR utilize more two-way communication than traditional court trials.
Consequently, following the abovementioned line of argument, ADR mechanisms should lead to more satisfaction among the participants. In the light of this discussion, the present research explored whether the communication-related advantages of ADR methods, namely short duration, power balance, sustainability of the outcome and flexibility regarding the proceedings, will lead to a higher level of satisfaction. This was achieved by means of conducting a survey among Austrian citizens of legal age who experienced a court trial as well as a mediation process. Consequently, this will lead to answering the following research question:
To what extent does the higher level of two-way communication in ADR mechanisms in comparison to the lower level of two-way communication in traditional court trials lead to more satisfaction with the outcome?
In order to develop structured arguments to answer the research question, the
following section will give insight in various theoretical concepts that are of relevance for this topic, such as two-way communication, outcome satisfaction and alternative dispute
resolution. Furthermore, the method section will elaborate the research design, procedure and measures while the results of the analysis will be presented subsequently. The conclusion and
discussion will provide information on the main findings, limitations of the research as well as implication for further research.
Theoretical background
As mentioned above, there seems to be a lack of two-way communication in conventional jurisdiction, which can lead to dissatisfaction with legal services. In order to explore the effect of communication on the level of satisfaction with conventional court trials as well as with ADR mechanisms, an in-depth examination of existing literature on communication and alternative methods of dispute resolution is necessary. The present study is based on the following theories on two-way communication and outcome satisfaction: Grunig’s Excellent Model of Public Relations and Communication, Habermas’ Communication Action Theory, the Theory of Public Participation, the Rational Choice Theory, the Theory of Distributive Justice and the Expectancy Disconfirmation Model of Satisfaction.
Furthermore, legal literature on Alternative Methods of Dispute Resolution will be discussed in order to finally derive the hypotheses.
Two-way communication
Grunig’s Excellent Model of Public Relations and Communication. The present paper is mainly founded on the idea of two-way communication. One of the most influential theoretical discourses on that topic is the Excellent Model for Public Relations and
Communication. The Excellent Model for Public Relations and Communication was developed based on a study conducted by J. Grunig in 1984. The abovementioned model proposes that excellent PR not only makes organizations efficient, but also ethical. Based on this model, J. Grunig, L. Grunig and Dozier (2006) stated that the ideal way to communicate is to come to a mutual understanding and a mutually beneficial consensus. In 1984, J. Grunig and Hunt were the first to describe a two-way model of public relations. In further
consequence, they identified several important assumptions for the two-way symmetrical model. „In the symmetrical model, understanding is the principal objective of public relations rather than persuasion (Grunig & Grunig, 1992, p. 289).
Grunig (2009) defines two-way (symmetrical) communication for public relations as using “research, listening, and dialogue to manage conflict and cultivate relationships” (Grunig, 2009, p. 2). This can be applied to communication between the two conflicting parties and a possible third party. Two-way communication therefore is focused on giving all parties equal opportunity to share their opinion and their point of view on the topic. The
parties are treated as equals, which is also expressed in the communication style. Opposed to two-way communication, one-way communication is a monologue of only one
communicator. It does not facilitate dialogue or consensus (Grunig & Grunig, 1992). Grunig (1984) described two essential variables to differentiate between models of public relations: direction and purpose. „Direction describes the extent to which the model is one-way or two-way. One-way communication disseminated information; it is a monologue. Two-way communication exchanges information: it is a dialogue. Purpose describes whether the model is asymmetrical or symmetrical. Asymmetrical communication is imbalanced; it leaves the organization as is and tries to change the public. Symmetrical communication is balanced; it adjusts the relationship between the organization and public” (Grunig & Grunig, 1992, p. 289). In other words, there are four different models: (a) One-way-asymmetric: One communicator aims to involve the other party, but not because of interest in the other party’s opinion, but to manipulate the other party. An example for a one-way asymmetric model would be the press agency model (Grunig & Grunig, 1989). (b) One-way-symmetric: A monologue where one party informs the other party and the other party can form its own opinion. J. Grunig and L. Grunig (1989) identify the public information model as one-way symmetric. (c) Two-way-asymmetric: The parties are interacting to persuade each other. (d) Two-way-symmetric: There is an interaction between the parties. Both sides are
communicators and want to inform the other party, but not influence it.
J. Grunig, L. Grunig and Dozier (2006) consider the two-way-symmetrical model as the most ethical one because “as long as the dialogue is structured according to ethical rules, the outcome should be ethical- although not usually one that fits the value system of any competing party perfectly” (Grunig, Grunig, & Dozier, 2006, p. 308).
Also Grunig and Hunt (1984) are in favor of symmetrical communication. According to these authors, a symmetrical communication relationship consists of non-distinguishable sources and receivers. They are equal participants in a communication process seeking mutual understanding.
In the present study, it is argued that conventional litigation and court trials make use of one-way communication to a higher extent than alternative methods of dispute resolution. Therefore, they encourage monologue whereas ADR methods are in favor of two-way communication. Following the arguments of J. Grunig, L. Grunig and Dozier (2006) and Grunig and Hunt (1984), ADR mechanisms are more suited to satisfy the needs of the parties by reaching consensus.
Habermas’ Communication Action Theory. The previous thoughts go in line with Jürgen Habermas who claims that communication needs to be used to reach consensus and to align moral and instrumental values. Habermas states that the instrumental world and the moral world have to be aligned. Accordingly, moral values have to be the basis for the instrumental world. For Habermas, there is only one kind of morality: Certain values that we have in society. Therefore, morality is part of the ongoing discourse. Habermas’
Communication Action describes how the speech acts of competent speakers first raise validity claims to truth, rightness and sincerity and how, in further consequence, other listeners and speakers can challenge, reject or accept these speech acts within a discourse (Meisenbach, 2006). Habermas believes that, with every statement, the speaker makes appeals to the truth (cognitive value sphere), the rightness (moral value sphere) and the sincerity (aesthetic value sphere) of the statement. Meisenbach (2006) gives the example of the
statement “I give money to the United Way”. With this statement, the speaker claims that it is true that he donated the money and that it was the right thing to do. Additionally, the speaker claims to be sincere in contrast to being sarcastic in the utterance.
The ideal speech situation, according to Habermas, is a dialogue where everybody can validate the statement and where power is being shared. Consequently, when using dialogue, consensus should be reached and conflict avoided. “In the intersubjective paradigm,
dialogue's ideal purpose and potential is mutual understanding oriented towards consent, based on the collective interpretive framework of lifeworld rationality.” (Holmström, 1997, p. 17). According to Habermas, the ideal speech situation utilizes the following: Bring all
stakeholders together, justify your decisions and try to find a compromise. “For Habermas (1970), an ideal communication situation occurs when there is complete symmetry in the distribution of assertion and dispute, revelation and concealment, prescription and conformity, among partners of communication” (Pearson, 1989, p. 72).
In line with Habermas, J. Grunig, L. Grunig and Dozier (2006) promote consensus and building relationships. In their view, developing mutual understanding leads to consensus. This thought corresponds with Habermas’ ideas. Accordingly, Dahlberg (2007) identifies several characteristics that communication should ideally include, namely being inclusive, free, equal, sincere, respectful, reasoned and reflexive. These guidelines, the so called „general public sphere norm“, aim to reach consensus and understanding. According to the author, “certain social institutions encourage this type of communication more than
others” (Dahlberg, 2007, p. 49). In this context, “public” does not refer to the content or place, but only to the form of communication. However, the author admits that this general public
sphere norm is an idealization that has to be adapted to its real environment (Dahlberg, 2007). In accordance with Habermas’ ideas, the present study states that the beneficial effects of dialogue and shared power will lead to a higher level of satisfaction. Since ADR
mechanisms incorporate more elements of two-way communication, people are more likely to be satisfied with the outcome.
There has been some criticism of Habermas’ ideas. Luhman points out that
communicators often have different (financial) interests and conflicting values (Holmström, 1997). The society is too complex to always come to a mutual understanding. Luhman, in contrast to Habermas, does not try to avoid conflict as conflict brings society further. “In the social systemic paradigm, consensus is not possible and probably not even desirable.”
(Holmström, 1997, p. 17). Furthermore, the term ethical is fuzzy and simplified. Being ethical can mean different things to different groups. Immanuel Kant (1785) expresses his opinion on ethical human behavior in his book Grundlegung zur Metaphysik der Sitten (English:
Foundations of the Metaphysics of Morals) as the so-called categorical imperative: “Handle nur nach derjenigen Maxime, durch die du zugleich wollen kannst, dass sie ein allgemeines Gesetz werde” (English: “Act only according to that maxim whereby you can, at the same time, will that it should become a universal law”) (Kant, 1785). In other words, in order to behave ethically, human beings have to behave the way they want others to behave. Kant believes that morality is something that happens isolated in each individual’s head. Luhman, on the other hand, takes the stand that morality is part of the public discourse.
John B. Thompson (2013) condemns Habermas’ ideal speech situation as idealistic. Society has changed due to new technology and new mediated forms of communication. Whereas in the past, it was common to communicate face-to-face, in modern times, mediated communication rises in popularity. Therefore, the ideal speech situation described by
Habermas is outdated. Thompson describes a „new regime of cultural transmission created by the advent of mass communication” (Thompson, 2013). According to his new model of deliberation, the concept of dialogue has to be replaced by interactions that add value to both parties. Even tough Thompson’s critique on Habermas’ theory is very valuable for the
academic discourse, it will not be analyzed further in the framework of the present paper as it cannot enrich the theoretical framework on the topic at issue.
Outcome satisfaction
There are many studies that address the issue of outcome satisfaction. Satisfaction is “an affective evaluation of task-related conditions and outcomes linked (explicitly or implicitly)
with the social comparisons and discrepancy judgments” (Oliver, Balakrishnan, & Barry, 1994, p. 253). Therefore, an individual is satisfied when the outcome exceeds the prior
expectations (Gillespie, Brett, & Weingart, 2002). In the present paper, the outcome is defined as the result of the solving attempts. Hence, the outcome is what the parties to a dispute agree on how to settle the dispute, e.g. a settlement.
However, no research has been done so far on the outcome satisfaction in combination with the way of communication. In order to fill this gap, the present study builds on
established theories on outcome satisfaction, namely the Theory of Public Participation, the Rational Choice Theory, the Theories on Distributive Justice and the Expectancy
Disconfirmation Model of Satisfaction.
The Theory of Public Participation. The Theory of Public Participation describes the phenomenon that taking the public opinion into account leads to fairness and, in further consequence, to “higher levels of satisfaction and acceptance” (Herian, Hamm, Tomkins, & Pytlik Zillig, 2012, p. 817). It is a way to show that the public is part of the decision-making process.
The Rational Choice Theory. Initially, the Rational Choice Theory was mainly used in the domain of economics. By now, it has a wide range of application, such as
Sociology or Political Science to explain human behavior (Green, 2002). According to the Rational Choice Theory, individuals will choose the alternative, which most effectively helps them to accomplish their preferred choice considering all relevant factors that they can control (Diekmann & Voss, 2004). To clarify, in a decision-making situation, an individual chooses the better alternative between at least two alternatives. In line with that, it is always in at least one party’s best interest to choose mediation (either the party with worse chances to win or both parties in case of equal chance to win), because they make the outcome more predictable. The rational choice theory works under the assumption that the individual knows all
alternatives before making a decision. However, this is not always the case, which creates the necessity to exchange certainty with maximized probability.
The Theories on Distributive Justice. The Theories on Distributive Justice state that people make a judgment about the fairness of an outcome of a dispute or negotiation by comparing the input or previous outcome (or outcomes that others have achieved) to the actual outcome (Blodgett, Hill, & Tax, 1997). These equity evaluations influence, among others, the customers’ satisfaction as well as the perceived service quality. A more specific form of justice is Procedural Justice being the perceived fairness of policies, procedures and criteria that decision makers use in order to come to an outcome of a dispute. Dimensions of
procedural justice, identified by Clemmer (1993) are, among others, flexibility, duration and efficiency. Many studies, such as Katz, Larson and Larson (1991) or Venkatesan and
Anderson (1985), have shown that waiting time is a particularly important aspect. Besides Procedural Justice, there is Interactional Justice, which is concerned with how people are treated during the conflict (Blodgett, Hill, & Tax, 1997). This refers mainly to politeness, friendliness, sensitivity, interest and honesty.
The Expectancy Disconfirmation Model of Satisfaction. According to the Expectancy Disconfirmation Model of Satisfaction by Oliver (1980), satisfaction is made up of two processes: expectation creation and disconfirmation of the expectations with outcome comparisons. In other words, an individual compares his or her expectations with the
outcome, which causes either negative or positive disconfirmation or confirmation. Negative disconfirmation is the state of poorer outcome than expected whereas positive confirmation is the reversed. Confirmation, on the other hand, describes the concept where the actual outcome is in line with the expected one. Only positive disconfirmations (the actual outcome exceeds the expectations) result in satisfaction (Oliver, Balakrishnan, & Barry, 1994). In the case at issue, parties compare their expectations before the court trial or mediation with the actual outcome. Consequently, high expectations typically result in negative disconfirmation, as it is more difficult to encounter confirmation or positive disconfirmation.
Alternative Dispute Resolution
The academic literature on alternative dispute resolution mechanisms enlarges every day. In contrast to court trials, ADR practices aim to solve the legal dispute outside the court
(Mnookin, 1998). A court trial is defined as every way to resolve a dispute at court involving a judge according to the Austrian civil and administrative law. The decision determines the rights and obligations of the parties and is legally binding.
The main forms of ADR are mediation, negotiation and arbitration. Arbitration describes the situation where the parties bring the dispute to a third person that makes a legally binding and enforceable decision (= the arbitral award) (Mnookin, 1998). Negotiation refers to a process where the parties negotiate and aim to solve the conflict on their own – without assistance of a third party. Mediation is a form of negotiation, assisted by a third person – the mediator.
Besides arbitration and negotiation, mediation is the most common form of alternative dispute resolution. Since mediation incorporates all characteristic elements of ADR methods, focusing on cases of mediation seems representative for alternative methods of dispute resolution in general. In the framework of this paper, the center of interest will lie on
mediation and – from there – conclusions will be drawn that are generalizable for other alternative methods of dispute resolution. In further consequence, mediation as one form of alternative dispute resolution will be discussed in more detail in the following paragraph.
Mediation. Mediation can be seen as assisted negotiation. A neutral person supports the parties with negotiating a settlement. He or she facilitates the confidential process of decision-making, but does not lead it. Furthermore, he or she has no authority to call witnesses or seek evidence. Participation in mediation is typically voluntary. Mediation works under certain principles. Firstly, mediation is – with some exceptions - based on the freedom of the parties to take part in the mediation. Secondly, the parties are empowered to make decisions. The mediator only facilitates the process and supports the parties but ultimately, the parties are in charge of the decision. Thirdly, the mediator is completely neutral and impartial. This principle is derived from the idea of equality of the parties. Fourthly, the issues raised during mediation are strictly confidential. The mediator is obliged to respect the parties’ privacy at any time. Lastly, the parties need to be informed about those principles by the mediator beforehand (Orheian, 2011).
In 2004, the Zivilrechts-Mediations-Gesetz was implemented in the Austrian legal framework to set down in writing what mediation is and how it should be used. According to Article 1 Zivilrechts-Mediations-Gesetz, mediation is “eine auf Freiwilligkeit der Parteien beruhende Tätigkeit, bei der ein fachlich ausgebildeter, neutraler Vermittler (Mediator) mit anerkannten Methoden die Kommunikation zwischen den Parteien systematisch mit dem Ziel fördert, eine von den Parteien selbst verantwortete Lösung ihres Konfliktes zu ermöglichen” (English: Mediation is a practice based on the voluntariness of the parties, by which a trained, neutral facilitator (mediator) systematically facilitates the communication between the parties using generally accepted methods with the aim to encourage a solution to the conflict for which the parties are responsible.) Hence, the main elements of mediation are the
voluntariness of the parties, the responsibility of the parties and the facilitation by a third person.
In the Austrian jurisdiction, several regulations were implemented to encourage the use of mediation. Article 4 EUMediatG states that mediation by a registered mediator (“eingetragener Mediator”) tolls the period of limitations. Therefore, parties can choose mediation without fearing to lose their legal rights due to the period of limitations.
Furthermore, mediation by a registered mediator is mandatory in case of an extraordinary termination of an apprenticeship (Article 15a Berufsausbildungsgesetz). This is believed to prevent rash termination caused by bad communication between the parties. Moreover,
Article 16 Umweltverträglichkeitsprüfungsgesetz states that an environmental impact
assessment can be paused with the start of mediation. This is meant to give the opportunity to solve the conflict using mediation first without losing any legal rights.
The abovementioned legal advantages of using mediation to solve a dispute lead to a rise in popularity of mediation. Mediation has several advantages compared to arbitration or conventional litigation. The most striking ones are the following: Mediation is less time-consuming and therefore less expensive than litigation (Mnookin, 1998; Orheian, 2011). Since both parties can choose the mediator jointly, the parties might be more comfortable with the mediator and trust him or her more. Furthermore, the decision is more likely to be
perceived as mutually beneficial as the parties agreed on it. In court, there can be “winners” and “losers” whereas mediation prevents this by working on a solution that both parties feel comfortable with. Moreover, due to fewer strict rules, mediation allows more flexibility and communication. There are no limitations in time or issues discussed in a mediation session (Orheian, 2011). The advantages of ADR mechanisms will be discussed in greater detail below.
However, mediation also has some limitations and disadvantages. The fact that mediation is voluntary (except for a few cases where mediation is mandatory) can be a drawback as parties are free to leave even if the conflict is not solved yet. Hereby, additional costs arise from the mediation and the court trial. Furthermore, since mediation as a form to solve a legal dispute is a quite recent development, there is still lack of experience in this specific field. These drawbacks might discourage people to choose mediation or another form of ADR.
Despite these drawbacks, mediation, negotiation and arbitration rise in popularity every day. Nowadays, mediation is already used in various fields, such as family disputes, neighbor disputes as well as disputes in schools, the public sphere or in B2B relationships. It can be expected that the field of application will widen even more. The present paper
examines the communicational aspect of these reasons and how communication effects the satisfaction with the outcome. Therefore, the main communication-related advantages, namely speed, sustainability, flexibility and power balance will be studied.
Duration. In the framework of this paper, speed refers to the duration of the court trial or mediation. Mediation as well as other forms of ADR mechanisms is considered to be less time-consuming than regular court trials. In line with Cheung (1999), Delgado, Dunn, Brown, Lee and Hubbert (1985) argue that ADR mechanisms can be speedier since fewer formalities are needed and the decision makers are familiar with the subject of the
dispute. As mentioned above, Katz, Larson and Larson (1991) and Venkatesan and Anderson (1985) state that waiting time is of great importance when it comes to the perception of procedural justice. The duration of proceeding is also one of the aspects Clemmer (1993) accounts as crucial for procedural justice. These insights lead to
Hypothesis 1. Two-way communication affects the level of satisfaction with the outcome. This pattern is pronounced more when the duration of the court trial or mediation is shorter.
Figure 1 - Conceptual Model for Hypothesis 1
Sustainability. ADR mechanisms are considered to provide more sustainable outcomes as the problem is solved in its roots in the relationship between the parties and not only the legal consequences thereof. (Delgado, Dunn, Brown, Lee, & Hubbert, 1985; Cheung, 1999). Hereby, the parties are also more likely to maintain a good relationship afterwards (Radford, 2000). This is in line with Clemmer (1993) saying that procedural justice depends, amongst others, on efficiency. Accordingly, hypothesis 2 and 3 are derived,
Hypothesis 2. Two-way communication affects the level of satisfaction with the outcome. This pattern is pronounced more when the outcome of the court trial or mediation is more sustainable.
Hypothesis 3. Two-way communication affects the level of satisfaction with the outcome. This pattern is pronounced more when the relationship between the parties after the court trial or mediation is better.
Figure 2 - Conceptual Model for Hypothesis 2 + 3
Flexibility. Flexibility refers to the willingness or capability to adapt to new situations. For the present study, flexible proceedings are defined as proceedings that are capable of coping with various circumstances and cases. They enable change or adjustment when needed to meet particular needs.
ADR methods are more flexible in terms of the proceedings as the parties can
negotiate a large part of the terms and conditions and adjust the procedure to their needs. Due to fewer strict regulations, ADR methods encourage creative solutions, which have a positive effect on the level of satisfaction (Delgado, Dunn, Brown, Lee, & Hubbert, 1985; Clemmer, 1993; Cheung, 1999). In line with these thoughts is
Hypothesis 4. Two-way communication affects the level of satisfaction with the outcome. This pattern is pronounced more when the proceedings of the court trial or mediation are more flexible.
Figure 3 - Conceptual Model for Hypothesis 4
Power imbalance. Finally, in the framework of ADR mechanisms, the parties are not exposed to the single opinion of a judge, whereby the power imbalance is decreased (Radford, 2000). Furthermore, it is easier to balance out the power imbalance between the parties (Neumann, 1992). Parenti (1978) describes power as “the ability to get what one wants” (Parenti, 1978, p. 4) while Haynes (1988) defines it as “control of or access to emotional, economic, and physical resourced desired by the other person” (Haynes, 1988, p. 278). According to Langen (2007) power refers to “possession of controlling influence” (Langen, 2007, p. 191) whereas imbalance describes “disequilibria or lopsidedness” (Langen, 2007, p. 191). Therefore, power imbalance describes the situation where one party has more controlling influence than the other. Furthermore, someone is only powerful in relation to another person, thus, power is relational and, in addition, can shift (Neumann, 1992). ADR methods enable balancing out differences not only in status, material resources or popularity, but also in power (Ünal, 2011). This was mostly studied with regards to gender-related power imbalance between divorcing spouses (Neumann, 1992). However, the advantages of ADR methods can be extended to other cases as well. Habermas’ ideal speech situation not only includes the validation of a statement, but also the division of power (Holmström, 1997). Hereby, hypothesis 5 is derived.
Hypothesis 5. Two-way communication affects the level of satisfaction with the outcome. This pattern is pronounced more when the level of power imbalance is lower.
Figure 4 - Conceptual Model for Hypothesis 5
Combining the aforementioned literature and reflecting on the interface, there is a research gap with regards to the use of two-way communication in legal proceedings. This gap can be filled with the further development of Alternative Dispute Resolution practices, making intense use of two-way communication. The present paper therefore aims to build a bridge between the recent research on two-way communication in the field of communication science and its application in another field of expertise, law.
Method Design
The prior objective of the present research was to measure whether the level of two-way communication used in methods to solve a conflict has an influence on the level of satisfaction with the outcome. For the independent as well as the dependent variable, the individuals’ perceptions were considered for the analysis. Taking the aforementioned theoretical concepts into account, the association between the variables was tested for a moderation effect by the variables speed, flexibility, sustainability and power imbalance.
Case description
Austria is considered to be a best practice example with regards to implementing alternative dispute resolution methods in the jurisdiction (Rechtliche Grundlagen, n.d.). Moreover, since Austria’s jurisdiction is similar to the Hungarian and the German jurisdiction, the findings are believed to be comparable and therefore generalizable for other jurisdictions. Mediation includes the main characteristics of alternative methods of dispute resolution. Therefore, the results retrieved from this survey are also applicable to other forms of ADR, such as
Sample
An online survey was conducted to gain insight into the topic. As aforesaid, the questionnaire aimed to examine people’s opinions on and satisfaction with a mediation process in
comparison to a court trial. The participants were Austrian citizens of legal age with
experience in court trials as well as mediation within the time frame of January 1, 2010 and March 31, 2015. Since the information on parties of a court trial or a mediation process is strictly confidential, the researcher could not approach the participants personally. This confidentiality issue required a non-random sample, namely a convenient sampling using the help of mediators seated in Austria. As the target population was extremely specific, the sample size did not need to be extensive in order to be representative.
Procedure
The cross-sectional data of the survey was collected from April 6, 2015 until May 27, 2015. In order to avoid language barriers that could create bias, the questionnaire was translated into German, using the back-translation method (Saunders, Lewis, & Thornhill, 2011). Thus, the questionnaire was developed in German and English. The online survey program Qualtics was used to design the questionnaire. Before distributing the questionnaire to the participants, it was sent to 15 people to do a test-run and exclude possible vagueness and uncertainties. The questionnaire started with two general questions about age and gender of the participants, followed by a set of questions on court trials and then the same set of questions on mediation. All questions forced answers. By answering these questions, the participants shared their experiences with court trials and mediation. In particular, communicational aspects were raised. This way, concepts such as two-way communication, satisfaction with the outcome and court trial or mediation were measured. The questionnaire was based on the validated and commonly used Client Satisfaction Questionnaire (CSQ). Exclusively closed questions were used in an individual, self-report questionnaire. No incentives were given and the study was not funded. The statistical software SPSS was used to analyze the data. The questionnaire can be found in Appendix A.
The participants were recruited with the aid of Dr. Peter Adler as well as Dr. Karl Pramhofer. Dr. Adler studied law, political science and journalism studies in Austria and is currently working as registered mediator and business consultant. Since he is one of the leading mediators in Austria, he has access to parties with experience in mediation and court trials. Dr Pramhofer is a judge at the commercial court in Austria. Moreover, he is a registered mediator applying his education in practice, but also contributing to the academic field of
ADR methods. Given the presented biographies of Dr. Adler and Dr. Pramhofer, they are both excellent sources to gain participants. To ensure data confidentiality, the questionnaire was sent exclusively to Dr. Adler and Dr. Pramhofer who forwarded it to their contacts. The questionnaire was sent as a link in an email. Dr. Adler and Dr. Pramhofer were asked to forward a pre-written email to the parties. In the email, information was given about the purpose of the study and the proceedings, including a time indication to fill in the
questionnaire. Furthermore, the participants were informed that the questionnaire is voluntary and that stopping the questionnaire was possible at any time. In order to obtain informed consent, the participants were informed that by proceeding to the questionnaire, they agree to participate after having read the aforementioned information.
Dr. Adler invited 70 parties to participate, Dr. Pramhofer invited 5 parties. Not all of the parties invited were suitable as they did not have experience with both, court trials and mediation processes. 19 parties completed the questionnaire; the response rate was 25.33 per cent. 8 participants were female, 10 were male. The age of the participants varied between 27 and 77 years (M = 53.70; SD = 12.77). The average age was 53.70 years. The participants were assigned a number to guarantee their anonymity.
Measures
In the present study, age and gender were asked to obtain a general overview over the participants’ background. Other than that, no demographics seemed relevant for the topic of discussion. Important concepts for the present research were court trials, mediation, two-way communication, duration, sustainability, power imbalance, flexibility and outcome
satisfaction. These variables were measured as follows:
Court trials. The variable court trials was assessed by asking “Did you participate in a court trial between 1/1/2010 and 31/3/2015?”. Furthermore, the participants were asked to indicate the time period of the court trial.
Mediation. The concept mediation was measured by asking “Did you participate in a mediation between 1/1/2010 and 31/3/2015 (no matter whether the mediation was successful or not)?”. Again, the parties were asked to indicate the time period of the mediation. Additionally, they were invited to indicate the reason why they chose mediation. The answer categories (more than one answer was possible) were “The mediation was less expensive than a court trial.”, “The proceedings of the mediation were more flexible than a court trial.”, “The mediation was faster than a court trial.”, “The relationship to the opposed
party is better after a mediation than a court trial.”, “The outcome of a mediation is more sustainable than a court trial.” and “The power imbalance between the parties is smaller in a mediation than a court trial.”. Furthermore, the participants could also indicate other reasons.
Two-way communication. Various items assessed the variable two-way communication. The participants were asked to indicate their level of agreement with several statements, such as “I got the feeling that I had enough possibilities to elaborate on my
opinion during the court trial/mediation.”, “I got the feeling that I was being heard sufficiently during the court trial/mediation.”, “I got the feeling that dialogue was being encouraged by the judge/mediator.” or “I got the feeling that all issues relevant for the decision were
discussed sufficiently.”. A 5-point answer scale reached from 1 = “I disagree completely” to 5 = “I agree completely”.
A factor analysis revealed that all items for two-way communication regarding court trials load on one factor. A principal component analysis using oblique rotation was
conducted, only considering items with a factor loading of .4 or more. The analysis identified one factor with an Eigenvalue of 3.63. All items loaded on this one factor. The variance explained is 72.67 per cent. A Cronbach’s Alpha value of .90 shows high reliability. The Cronbach’s Alpha value could be increased by deleting the items “I got the feeling that the judge encouraged dialogue” and “I got the feeling that all topics relevant for the decision making process have been discussed sufficiently”. Since the Cronbach’s Alpha already was very high and the two items seemed highly relevant for the analysis, the items were not deleted. The same is applicable to the two-way communication with mediation. An
Eigenvalue of 4.04 and a total variance of 80.74 per cent show that all items measure the same concept. The Cronbach’s Alpha value of .939 could only marginally be increased by deleting the item “I got the feeling that the mediator encouraged dialogue”. For the abovementioned reasons, the item was kept.
Duration. The concept duration was measured by manually calculating the amount of days of duration of the court trial or mediation. Whenever the parties indicated that the court trial or mediation is still in progress (the participants indicated that by filling in 99-99-9999), this was treated as a missing value.
Sustainability. The concept sustainability incorporates two sub-concepts: The sustainability of the outcome and the maintenance of a good relationship between the parties after the court trial or mediation. The sustainability of the outcome measures to what extent
the outcome satisfies the parties “in the long run”. The maintenance of a good relationship describes to what extent the parties are able to keep a good relationship to each other after the court trial/mediation.
The first sub-concept was conceptualized by asking the level of agreement with the statement “A court trial/mediation was the best option to solve the conflict in a sustainable way.”. The second sub-concept was measured by indicating the level of agreement with the utterance “The court trial/mediation enables the parties to maintain a good relationship after the court trial.”. For both items, a 5-point Likert-scale, ranging from 1 = “I disagree
completely” to 5 = “I agree completely”, was used.
A conducted factor analysis revealed that both items – sustainability of the outcome and maintenance of a good relationship – load on the same factor for both, court trials
(Eigenvalue = 1.31, Variance Explained = 65.35) and mediation (Eigenvalue = 1.07, Variance Explained = 53.44). However, the Cronbach’s Alpha values of .47 for court trials and .129 for mediation indicate a very low reliability. Since the two items measure the same concept, sustainability and good relationship were not kept as separate items.
Flexibility. The concept flexibility was measured with the following statement: “Please indicate to what extent you were satisfied with the following services during the court trial: The flexibility of proceedings during the court trial.” A 5-point answer scale reached from 1 = “Very satisfied” to 5 = “Very dissatisfied”.
Power imbalance. The variable power imbalance was assessed with the question “I would have been more satisfied with the outcome of the court trial/mediation if there was no power imbalance.” (1 = “I disagree completely”, 2 = “I disagree”, 3 = “I do not have an opinion”, 4 = “I agree”, 5 = “I agree completely”). Preceding this question, the participants had to answer the questions “In your case, who was satisfied with the outcome of the court trial/mediation?” (1 = “Both parties were satisfied”, 2 = “Only I was satisfied”, 3 = “Only the other party was satisfied”, 4 = “Both parties were dissatisfied”), “Did you experience power imbalance during the court trial?”. If the answer to the previous questions was “Yes”, the participants proceeded to the following two questions: “In your case, who was more powerful?” (1 = “I was more powerful”, 2 = “The other party was more powerful”).
Outcome satisfaction. The dependent variable outcome satisfaction was measured using several various items, such as “How would you rate the quality of the court trial/mediation?” (1 = “Excellent”, 2 = “Good”, 3 = “Neutral”, 4 = “Bad”, 5 = “Very Bad”),
“How satisfied were you with the amount of help from the judge/mediator?” (1 = “Very dissatisfied”, 2 = “Dissatisfied”, 3 = “Neither satisfied, nor dissatisfied”, 4 = “Satisfied”, 5 = “Very satisfied”), “To what extend did the court trial/mediation meet your expectations?” (1 = “The court trial/mediation met all my expectations”, 2 = “The court trial/mediation met most of my expectations”, 3 = “Only a few of my expectations were met”, 4 = “None of my expectations were met”), “In case a friend needs similar help, would you recommend a court trial/mediation?” (1 = “No, definitely not”, 2 = “No, I don’t think so”, 3 = “Yes, I think so”, 4 = “Yes, definitely”) or “Retrospectively, I was more satisfied with the court trial than with the mediation.” (1 = “I disagree completely”, 2 = “I disagree”, 3 = “I do not have an opinion”, 4 = “I agree”, 5 = “I agree completely”). Most items were taken from the validated 8-item Client Satisfaction Questionnaire (CSQ). Additionally, items were added when considered
necessary.
In order to compute a variable measuring the satisfaction with the outcome, a principal component analysis was conducted. Oblimin rotation was used and only items with a factor loading of .4 or more were taken into account. This was done separately for the satisfaction variable for court trials and mediation. Since the answer scales of the items were not always directed in the same direction, some items needed to be recoded.. The output indicated that for the satisfaction with the court trial, the items loaded on one factor (Eigenvalue = 2.68,
Variance Explained = 77.06). After running a Cronbach’s Alpha test, the reliability could be improved from .68 to .78 by deleting the item “How satisfied were you with the amount of help from the judge”. The same analysis was conducted with regards to the satisfaction with mediation. The SPSS output revealed that the items load on one factor an Eigenvalue of 4.31 and a variance explained of 71.90 per cent. Based on a Cronbach’s Alpha value of .7 or more, a conducted Cronbach’s Alpha test revealed that the factor is highly reliable (Cronbach’s Alpha value = .92). Deleting any items does not increase the Cronbach’s Alpha value.
Results
First, the data was cleared by means of only taking completed questionnaires into account. This way, 13 out of 32 questionnaires were eliminated. To assure valid answers, only questionnaires that were filled out in 5 minutes or more were selected. 18 out of the 19 completed questionnaires met this requirement. Therefore, the data of 18 completed questionnaires were analyzed in the framework of this study.
Since the main objective of the present research was to examine whether mediation incorporates more two-way communication than traditional court trials and the effects thereof,
the first step taken was to explore the intensity of two-way communication used in both, mediation and traditional court trials. A frequency table disclosed that the level of two-way communication used in mediation (M = 4.01, SD = .81) is distinctly higher than the level of two-way communication in traditional court trials (M = 3.09, SD = 1.00).
In further consequence, the sample was checked for kurtosis and skewness. Table 1 lists the results.
Table 1 - Descriptives, Skewness and Kurtosis
Variable M SD Skewness Kurtosis
1. Age 53.70 12.77 .83 -.33 2. Gender 1.40 .52 .48 -2.28 3. TWC court 3.26 1.23 -.77 -.99 4. TWC mediation 4.04 .84 -.77 .20 5. SAT court 2.66 .71 .58 .04 6. SAT mediation 3.32 .73 -.70 .12 7. Duration court 291.00 250.79 .15 -5.02 8. Duration mediation 412.00 409.45 1.63 2.49 9. Flexibility court 3.00 .67 .00 1.50 10. Flexibility mediation 2.25 .96 -.86 -1.29 11. Sustainability court 2.85 1.20 .68 -.52 12. Sustainability mediation 3.05 1.04 -.63 .35
13. Power imbalance court 3.50 .58 .00 -6.00
14. Power imbalance mediation 3.50 1.67 .00 -1.20
Note. N = 18. TWC = Two-way communication. SAT = Satisfaction. Gender: 1 = male, 2 = female
No variable had a low value of skewness, which can be explained by the small sample size. Age, Gender, SAT court, Duration court, Duration mediation, and Sustainability court were positively skewed while TWC court, TWC mediation, SAT mediation, Flexibility mediation and Sustainability mediation were negatively skewed. Flexibility court, Power imbalance court and Power imbalance mediation have a skewness value of 0. Since the data was very diverse, adjusting it for skewness and kurtosis did not seem useful.
Frequency analyses revealed that 55.6 per cent of the participants were male, 44.4 per cent female. Out of the 18 participants, the age ranged from 27 years to 77 years and the mean
age was 49.67 years. In general, 55.6 per cent perceived the mediation as a good experience while only 44.8 per cent stated the same for the court trial. This was measured by selecting the cases where participants (strongly) agreed with the statement “The court trial/mediation was a good experience”.
In line with this, 73.3 per cent of the participants would rate the quality of the mediation as “excellent” or “good” whereas only 44.4 per cent of the participants felt the same about traditional court trials. Furthermore, in 38.9 per cent of the mediation cases, both parties were satisfied whereas this was only the case in 27.8 per cent of the court trials. Moreover, the participants indicated that in 27.8 per cent of the court trials and only 16.7 per cent of the mediation cases, both parties were unsatisfied.
Furthermore, the results disclosed that the main reason why people choose mediation is the shorter duration. Additionally, 3 participants stated that the judge recommended the mediation and 1 participant indicated that the mediation was mandatory as the parties to the conflict were employer and apprentice. In order to examine whether men and women differ by means of perception of the court trial or mediation as a good experience, a cross tabulation, including a Chi-Square test, was conducted. The Chi-square test revealed that the perception as a good experience and gender are not related, X2
(4, N = 18) = 2.34, p = .67 (for court trials); X2
(3, N = 18) = 3.49, p = .32 (for mediation). Controlling for age showed that also age and the perception as a good experience are not related, X2
(60, N = 18) = 72.00, p = .14 (for court trials); X2
(39, N = 18) = 45.00, p = .24 (for mediation).
For the data analysis, the linear regression statistical analysis in SPSS was used. As indicators of significance, alpha-levels of .05 were being used. The reported R2
indicated the percentage of variance in the dependent variable that can be explained by the independent variable(s).
Hypotheses
Hypothesis 1 stated that the effect of two-way communication on the level of satisfaction with the outcome is moderated by the duration of the proceedings. The level of two-way communication positively affects the level of satisfaction with the outcome of a court trial or mediation. This pattern is pronounced more when the duration of the court trial or mediation is shorter. The duration of the court trial or mediation functions as a moderator.
Hypothesis 1: Two-way communication affects the level of satisfaction with the outcome. This pattern is pronounced more when the duration of the court trial or mediation is shorter.
To begin with, the average duration of a traditional court trial is 398 days (Min = 1, Max = 1605). The average duration of a mediation is 281 days (Min = 21, Max = 1005). 7 court trials and 3 mediation proceedings are still in progress.
Hypothesis 1 for court trials
A regression analysis – testing the main effect of two-way communication on the level of satisfaction and the interaction effect of the duration of the court trial - was conducted. The model was a good fit for the data, (Adjusted R2
= .65, F (3, 7) = 4.32, p = .05). The output indicated that there is no significant interaction between the duration of the court trial and the satisfaction with the outcome of the court trial. Even though 64.9 per cent of the variability of the level of satisfaction with the outcome of the court trial can be explained by the variables two-way communication and duration, only the main effect of two-way communication on the level of satisfaction is significant (b = .52, b* = .83, t = 3.41, p = .01). There is a significant interaction effect between two-way communication and the level of satisfaction with the outcome of a court trial. However, there is no significant moderation effect of the duration of the court trial (b = .25, b* = .31, t = 1.22, p = .26). Hypothesis 1 regarding court trials had to be rejected.
Hypothesis 1 for mediation
By means of conducting a regression analysis, the main effect of two-way communication on the level of satisfaction and the interaction effect of the duration of the mediation was being tested. The independent variable predicts the dependent variable, (Adjusted R2
= .80, F (3, 9) = 16.69, p = .00). The main effect of two-way communication on the level of satisfaction is significant (b = .59, b* = .74, t = 3.97, p = .00), which proves that there is a significant interaction effect between two-way communication and the level of satisfaction with the outcome of a mediation. Since there is no significant moderation effect of the duration of the moderation (b = -.28, b* = -.19, t = -1.02, p = .34), hypothesis 1 regarding mediation needed to be rejected.
According to hypothesis 2 and 3, the effect of two-way communication on the level of satisfaction with the outcome is moderated by the sustainability of the outcome. Hypothesis 2 stated that the more sustainable the outcome, the higher the level of satisfaction with the outcome. Hypothesis 3 declared that the level of satisfaction is higher if the relationship after the court trial or mediation process is better. A conducted factor analysis suggested that the two hypotheses should not be kept separately. Therefore, hypothesis two and three were combined, stating that a higher level of sustainability leads to a higher level of satisfaction
with the outcome. The level of two-way communication affects the level of satisfaction with the outcome of a court trial or mediation. This pattern is pronounced more when the outcome of the court trial or mediation is more sustainable. The sustainability of the outcome of the court trial or mediation functions as a moderator.
Hypothesis 2. Two-way communication affects the level of satisfaction with the outcome. This pattern is pronounced more when the outcome of the court trial or mediation is more sustainable.
Hypothesis 3. Two-way communication affects the level of satisfaction with the outcome. This pattern is pronounced more when the relationship between the parties after the court trial or mediation is better.
Hypothesis 2/3 for court trials
The results of a conducted regression analysis revealed that the model to test the main effect of two-way communication on the level of satisfaction with the outcome of a court trial and the interaction effect of the sustainability of the outcome of the court trial is a good fit for the data, (Adjusted R2
= .30, F (3, 14) = 3.39, p = .05). The output indicated that there is no significant interaction between the sustainability of the outcome of the court trial and the satisfaction with the outcome of the court trial (b = .16, b* = .22, t = .93, p = .39). Therefore, hypothesis 2/3 had to be rejected.
Hypothesis 2/3 for mediation
Testing the main effect of two-way communication on the level of satisfaction and the interaction effect of the sustainability of the outcome of the mediation showed that the model is a good fit for the data, (Adjusted R2
= .82, F (3, 10) = 20.03, p = .00. However, there is no significant interaction between the sustainability of the outcome of the mediation and the satisfaction with the outcome of the mediation. The main effect of two-way communication on the level of satisfaction is significant (b = 46, b* = .62, t = 4.15, p = .00), but the
interaction effect is not (b = -.19, b* = -.25, t = -1.75, p = .11). Hypothesis 2/3 had to be rejected.
In the fourth hypothesis of the present study it was stated that the higher the level of two-way communication, the higher the level of outcome satisfaction will be, moderated by the flexibility of the proceedings. The level of two-way communication affects the level of satisfaction with the outcome of a court trial or mediation. This pattern is pronounced more
when the proceedings of the court trial or mediation are more flexible. The flexibility of the proceedings of the court trial or mediation functions as a moderator.
Hypothesis 4. Two-way communication affects the level of satisfaction with the outcome. This pattern is pronounced more when the proceedings of the court trial or mediation are more flexible.
Hypothesis 4 for court trials
The regression model to test the main effect of two-way communication on the level of satisfaction and the interaction effect of the flexibility of the court trial appears not to be a good fit for the data, (Adjusted R2
= .23, F (3, 14) = 2.72, p = .08). The output indicated that there is no significant interaction between the flexibility of the court trial and the general satisfaction with the outcome of the court trial. Neither the main effect (b = .31, b* = .46, t = -1.90, p = .08) nor the moderation effect of the flexibility of the court trial (b = -.06, b* = -09, t = -39, p = .70) is significant. Therefore, hypothesis 4 could not be accepted.
Hypothesis 4 for mediation
Conducting the same regression analyses for mediation revealed that the model is a good fit for the data, (Adjusted R2
= .75, F (3, 10) = 13.75, p = .00). Since the F-test was significant, the model was retained. Regardless, there is no significant interaction between the flexibility of the mediation and the satisfaction with the outcome of the mediation. The main effect of two-way communication on the level of satisfaction is significant (b = .63, b* = 83, t = -4.79, p = .00). There is no significant moderation effect of the flexibility of the mediation (b = -.18, b* = -.18, t = -1.12, p = .29), which led to the rejection of hypothesis 4 with regards to
mediation.
Finally, in hypothesis 5 it was assumed that a higher level of two-way communication leads to a lower level of power imbalance, which, in further consequence, leads to a higher level of satisfaction with the outcome. The variable power imbalance functions as a
moderator. In the framework of this paper, power is defined as the “possession of controlling influence” (Langen, 2007, p. 191) Power imbalance refers to a stage where one side has more controlling influence than the other side. Using ADR methods helps balancing out differences in power (Ünal, 2011).
Hypothesis 5. Two-way communication affects the level of satisfaction with the outcome. This pattern is pronounced more when the level of power imbalance is lower.
A frequency table revealed that in considerably more cases of court trials, the parties noticed power imbalance. Whereas only 5 participants indicated power imbalance in the mediation process, this is the case for 9 cases of traditional court trials.
Hypothesis 5 for court trials
Analyzing the main effect of two-way communication on the level of satisfaction and the interaction effect of power imbalance during the court trial showed that the regression model is a good fit for the data, (Adjusted R2
= .95, F (3, 5) = 47.79, p = 00). Since the F-test was significant in the case at issue, the model was retained. The SPSS output suggested that there is a significant interaction between power imbalance during the court trial and the general satisfaction with the outcome of the court trial. The main effect (b = .93, b* = 1.12, t = -11.69, p = .00) as well as the interaction effect is significant (b = .20, b* = .28, t = 2.71, p = .04). Applying Dancey and Reidy’s (2004) categorization of correlation strength, there is a weak, almost moderate, significant positive association between power balance and the satisfaction with the outcome of a court trial (b = .20, b* = .28, t = 2.71, p = .04). Hypothesis 5a was accepted. There is a significant interaction effect between two-way communication and the level of satisfaction. Moreover, there is a significant moderation effect of the power imbalance during the court trial.
Figure 5 - Moderating effect of power imbalance on the relationship between the level of two-way communication and the level of satisfaction
The graph illustrates the relationship between the level of communication and the level of satisfaction with the outcome of the court trial, depending on the intensity of power
imbalance. To begin with, the level of satisfaction with the outcome increases with the level of two-way communication. Furthermore, this effect is stronger when the power imbalance during the court trial is lower. Therefore, hypothesis 5a could be accepted.
Hypothesis 5 for mediation
Examining the interaction effect of power imbalance during a mediation process on the main effect of two-way communication on the level of satisfaction suggested that there is no significant effect, neither regarding the main effect (b = .30, b* = -.32, t = 2.10, p = .28), nor concerning the interaction effect (b = .07, b* = .08, t = .33, p = .80). Furthermore, the model seems to be a bad fit for the data, (Adjusted R2
= .95, F (3, 1) = 28.10, p = .14). 1 1,5 2 2,5 3 3,5 4 4,5 5
Low Level of Two-way Communication
High Level of Two-way Communication Le ve l of S ati sfac ti on Low Power Imbalance High Power Imbalance
Conclusion
The legal system in Austria is facing problems, as the parties to a dispute are often dissatisfied with the outcome of the court trial. This is partly due to the fact that the communication situation at court is not ideal. Parties feel neglected and not heard sufficiently. Therefore, other forms to solve a dispute that incorporate more two-way communication seem like an attractive alternative to traditional court trials. In the light of this discussion, the aim of the present paper was to examine the effect of the level of two-way communication on the satisfaction with the outcome. In order to explore this, an online survey was conducted and regression analyses were performed.
The present study presented theories on two-way communication, outcome satisfaction and methods of alternative dispute resolution. Grunig and Grunig (1992) and Habermas agree that two-way communication is the best way to communicate with each other (Meisenbach, 2006; Holmström, 1997; Pearson, 1989). Furthermore, research on outcome satisfaction proves that flexibility, duration and efficiency are beneficial for the level of satisfaction with the outcome (Clemmer, 1993; Katz, Larson, & Larson, 1991; Venkatesan & Anderson, 1985). Previous research suggests that ADR methods are rich with regards to the use of two-way communication. Based on these theoretical foundations, the present study goes further by linking the field of communication science and the legal field. This research provides the reader with guidance on what elements of two-way communication are most essential to the satisfaction with the outcome. This is achieved by applying the communication theories on two-way communication on legal mechanisms to solve a dispute. Thus, practitioners in both fields of expertise, law and communication science can use the knowledge provided in this paper to enrich their expertise.
The first hypothesis suggested that there is a positive association between the level of two-way communication and the satisfaction with the outcome, being moderated by the duration of the court trial or mediation. There is a significant main effect regarding the
satisfaction with the outcome of court trials, and – in line with the expectations – this effect is positive. Therefore, more two-way communication leads to more satisfaction with the
outcome of a court trial. However, the duration of the court trial does not significantly strengthen or weaken this effect. The same applies to the satisfaction with the outcome of a mediation. The main effect regarding the satisfaction is significant whereas the moderation effect is not significant.
For the sake of simplicity, hypothesis 2 and 3 were combined to one hypothesis stating that the positive relationship between the level of two-way communication on the satisfaction
is pronounced more if the outcome is more sustainable. As for court trials, no effect is significant. Regarding mediation, only the main effect of two-way communication on the satisfaction with the outcome of a mediation is significant, and positive. The sustainability does not function as a significant moderator.
Hypothesis 4 concerned the flexibility of the proceedings as a moderator in the relationship between the level of two-way communication and the level of satisfaction. Only the positive main effect between the level of two-way communication and the level of satisfaction with the outcome of a mediation is significant. There were no other significant effects found regarding the fourth hypothesis.
Finally, hypothesis 5 stated that the main effect of two-way communication on the level of satisfaction is weakened by power imbalance during the court trial or mediation process. This hypothesis was accepted for court trials. People are more satisfied with the outcome of a court trial if the level of two-way communication was higher. This effect is weakened by the existence of power imbalance. With the power imbalance during the court trial being low, the level of satisfaction was higher even if the level of two-way
communication was low. The moderating effect of power imbalance had a strong influence. This influence, however, became less as the level of two-way communication rose. This can be explained by the fact that the level of satisfaction already significantly rose due to the high level of two-way communication. Power imbalance could not make such a big difference anymore. As for mediation, no significant effects were found.
Overall, it can be stated that the main effect of two-way communication on the level of satisfaction could be supported for both court trials and mediation processes. Thus, in line with Grunig and Habermas, a high level of two-way communication is desirable to reach a mutually beneficial outcome. In further consequence, this leads to more satisfaction. However, duration, sustainability and flexibility do not significantly moderate this
relationship – neither for court trials nor for mediation processes. Therefore, the effects found in the studies by Clemmer (1993), Katz, Larson and Larson, (1991) and Venkatesan and Anderson (1985) could not be proven.
Nevertheless, there was one significant moderating effect found: Power imbalance weakens the positive effect of two-way communication on satisfaction with the outcome of a court trial. To clarify, a high level of two-way communication leads to a high level of
satisfaction with the outcome of a court trial. However, if there is a high degree of power imbalance during the court trial, this weakens the positive effect.
