Article and Book Entries by Search Terms and Index Numbers

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

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

Finding out If It Is True: Comparing Mediation and Negotiation through Research

In this article, we first use existing research evidence to contextualize more clearly the place of civil case mediation in the litigation process. When we understand civil mediation as part of adversarial litigation - rather than as distinct from it - we see the importance of comparing mediation and unassisted negotiation. Next, we discuss research and commentary on the barriers to negotiation and the ways in which mediation might help overcome them. This work provides a more pragmatic and empirically grounded perspective on the potential value of mediation than does mediation ideology and suggests a wide range of hypotheses to guide future research. Finally, we reexamine briefly the research about preferences for mediation and the modest body of existing studies that do contrast litigant experiences with mediation and unaided negotiation in the context of litigation. This reexamination hints that it may in fact be true - that is, participation in mediation may enhance parties\u27 perception of procedural justice. Before we can be confident in the answer to this question, however, research is needed that carefully compares the experiences of parties in mediation with those in unassisted negotiation

Easing the Road to Civil Justice: Improving Litigants’ Awareness of ADR Options

In an overburdened justice system, litigants often wade through years of court proceedings and incur significant expenses as they seek civil justice. In many instances, alternative dispute resolution (ADR) procedures can offer litigants relief from the expense and waiting time associated with trial. In addition, compared to trials, ADR options often allow litigants to resolve their disputes in ways that better meet their objectives. For example, ADR permits litigants to set aside the rule of law in the interest of shared goals or industry norms. Further, court-sponsored ADR can increase the efficiency of the judicial system. When litigants are satisfied with their dispute resolution experience, they are more likely to voluntarily comply with the outcome.1 This compliance can mean fewer breach-of-contract claims stemming from settlement agreements and fewer appeals. However, court ADR programs cannot realize these benefits if litigants are unaware of their existence. To assess litigant awareness of court ADR offerings, I conducted a survey study of litigants across three state courts. I review the rather sobering findings, and then discuss specific actions that courts and lawyers can take to improve litigants’ awareness of such programs

What We Know and Need to Know about Court-Annexed Dispute Resolution

Mediation and other alternative dispute resolution (ADR) processes are now well integrated into the United States judicial system, in both civil and criminal cases. This white paper, drafted for the American Bar Association Commission on the Future of Legal Services, summarizes empirical evidence about the costs and benefits of court-annexed ADR. The first-generation of ADR research found that mediation and other ADR processes resulted in high party satisfaction rates, high settlement rates, cost savings and efficiency, increased long-term cooperation among the parties, and higher compliance rates with the outcome. The paper then examines a ground-breaking study conducted by the Maryland Judiciary about the costs and benefits of court-annexed ADR. The Maryland ADR study provides an example of rigorous second-generation ADR research that isolates the impact of participating in an ADR process rather than a trial, regardless of whether a settlement is reached. The research also examines the impact of specific mediator interventions (such as reflecting, caucusing, and eliciting options for resolution) on party attitudes and outcomes. The paper ends with a call for additional second-generation research about what works in court-connected mediation and other ADR processes, and identifies some of the gaps in the existing body of ADR empirical research

Article and Book Entries by Search Terms and Index Numbers

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