Barriers to Attorneys' Discussion and Use of ADR

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Court-Connected Mediation in General Civil Cases: What We Know from Empirical Research

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Assessing Mediator Performance: The Usefulness of Participant Questionnaires

As part of their obligation to provide quality services, courts that offer mediation need to periodically assess the performance of mediators to whom they refer cases. One of several methods that have been proposed for monitoring mediator quality is participant assessments of mediator performance. The present article reports an empirical study that examined attorneys\u27 assessments of the skillfulness of mediators in a federal appellate civil medations program. The attorneys rated some of the mediators as being more skillful than others, and these differences generally remained whether or not favorable outcomes were achieved in mediation. In addition, the attorneys rated individual mediators as being more skillful on some dimensions than others. These finding suggest that participant assessments could provide an effective means for monitoring mediator performance. We conclude by discussing a number of factors that could affect the usefulness of participant assessments

Institutionalization: What do empirical studies tell us about court mediation?

In the 25 years since the Pound Conference, federal and state courts throughout the country have adopted mediation programs to resolve civil disputes. This increased use of mediation has been accompanied by a small but growing body of research examining the effects of certain choices in designing and implementing court-connected mediation programs. This article focuses on the lessons that seem to be emerging from the available empirical data regarding best practices for programs that mediate non-family civil matters. Throughout the article, we consider the answers provided by research to three questions: (1) How does program design affect the success of the institutionalization of mediation? (2) In what ways do design choices affect the likelihood of achieving settlement of cases? and (3) Which program design choices affect litigants\u27 perceptions of the procedural justice provided by court-connected mediation? Because these issues of institutionalization, settlement and justice are so important to the success and quality of court-connected mediation, they must be considered carefully in. deciding both how to structure new court-connected mediation programs and how to improve existing programs

Decisionmaking About General Damages: A Comparison of Jurors, Judges, and Lawyers

Placing important decisions in the hands of the civil jury - made up of ordinary citizens untrained in the law - has long been criticized. For example, Erwin Griswold, law school dean and Solicitor General of the United States, asked, Why should anyone think that 12 persons brought in from the street, selected in various ways, for their lack of general ability, should have any special capacity for deciding controversies between persons? And Jerome Frank, law professor, aggressive legal realist, and judge, argued that juries are uncertain, capricious, and unpredictable, ignorant and prejudiced, poor factfinders, gullible, and incapable of following complex legal rules, thus making the orderly administration of justice virtually impossible. The great weakness of even the most thoughtful of these criticisms is that they are based on little more than anecdote and assertion, rather than anything resembling systematic empirical evidence. The first major study of jury decisionmaking was designed with the awareness that any assessment of the jury ultimately had to be made in comparison with judges, the decisionmakers who would replace the jury in any cases juries would not be permitted to decide. Accordingly, Harry Kalven and Hans Zeisel asked judges in 8,000 civil and criminal cases sampled from around the United States how they would have decided each case if it were a bench trial instead of a jury trial. By comparing these responses to the actual jury verdicts, Kalven and Zeise! found that judges and juries agreed on the verdict in personal injury cases 79% of the time. They also found that when jurors and judges disagreed, the jury was no more inclined than the judge to favor plaintiffs over defendants, that the agreement-disagreement ratios remained the same for both easy and difficult cases (suggesting no lack of comprehension by the juries), and that the judges rarely thought the juries\u27 verdicts were unreasonable in light of the available evidence and applicable law. In fact, the only noteworthy difference was that when juries did find liability, they awarded on average 20% more than judges said they would have awarded. Even that, however, was a more modest difference than critics of the jury would have had us believe. Perhaps because Kalven and Zeisel\u27s research findings provided so little support to the usual criticisms, the critics fell silent for a generation

Representation in Mediation: What We Know From Empirical Research

This Article first describes the proportion of unrepresented parties in mediation and the policies and practices regarding representation in different mediation contexts. The core of the Article examines the empirical findings on the effect of representation on several dimensions of the mediation process, including the effect on preparation for mediation, party perceptions of the fairness of the process and pressures to settle, the extent of party voice and participation in mediation, and the tone of the session. In addition, the Article examines the effect of representation on mediation outcomes, including the likelihood of settlement and the fairness of agreements reached. The Article concludes with a discussion of the findings, the limitations of existing studies, and the additional research that is needed to inform policies and practices regarding representation in mediation

Institutionalization: What do empirical studies tell us about court mediation?

In the 25 years since the Pound Conference, federal and state courts throughout the country have adopted mediation programs to resolve civil disputes. This increased use of mediation has been accompanied by a small but growing body of research examining the effects of certain choices in designing and implementing court-connected mediation programs. This article focuses on the lessons that seem to be emerging from the available empirical data regarding best practices for programs that mediate non-family civil matters. Throughout the article, we consider the answers provided by research to three questions: (1) How does program design affect the success of the institutionalization of mediation? (2) In what ways do design choices affect the likelihood of achieving settlement of cases? and (3) Which program design choices affect litigants\u27 perceptions of the procedural justice provided by court-connected mediation? Because these issues of institutionalization, settlement and justice are so important to the success and quality of court-connected mediation, they must be considered carefully in. deciding both how to structure new court-connected mediation programs and how to improve existing programs

Psychological Aspects of Food Biodesign

In light of what is known of the cognitive, social, developmental, and evolutionary psychology of human food choice, the anxiety and resistance prompted by genetically modified (GM) foods is unsurprising. The underlying psychological mechanisms that govern food preferences suggest why GM foods have become so controversial so easily. Views of government regulation and business practices also play a role in the public reaction to GM foods