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

Shestowsky, Donna

English

UNL | Libraries

University of Nebraska - Lincoln 
DigitalCommons@University of Nebraska - Lincoln 
Court Review: The Journal of the American 
Judges Association American Judges Association 
2018 
Easing the Road to Civil Justice: Improving Litigants’ Awareness 
of ADR Options 
Donna Shestowsky 
University of California, Davis, dshest@ucdavis.edu 
Follow this and additional works at: https://digitalcommons.unl.edu/ajacourtreview 
Shestowsky, Donna, "Easing the Road to Civil Justice: Improving Litigants’ Awareness of ADR Options" 
(2018). Court Review: The Journal of the American Judges Association. 658. 
https://digitalcommons.unl.edu/ajacourtreview/658 
This Article is brought to you for free and open access by the American Judges Association at 
DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Court Review: The Journal of 
the American Judges Association by an authorized administrator of DigitalCommons@University of Nebraska - 
Lincoln. 
Footnotes
1. See TOM R. TYLER, WHY PEOPLE OBEY THE LAW 82 (2d ed. 2006). 
In an overburdened justice system, litigants often wadethrough years of court proceedings and incur significantexpenses as they seek civil justice. In many instances, alter-
native 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 liti-
gants 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 com-
ply with the outcome.1 This compliance can mean fewer
breach-of-contract claims stemming from settlement agree-
ments and fewer appeals. However, court ADR programs can-
not realize these benefits if litigants are unaware of their exis-
tence. 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.
METHODOLOGY
My research team and I collected data from 336 litigants eli-
gible for their court’s mediation and arbitration programs to
determine whether they were aware of these offerings. Litigants
were surveyed by phone within three weeks of their cases being
closed. Participants were selected from three state courts: the
Third Judicial District Court, Salt Lake City, Utah; the Superior
Court of California, County of Solano; and the Fourth Judicial
District, Multnomah County, Oregon. These courts were cho-
sen because they offer both mediation and non-binding arbitra-
tion (in addition to trial) for the same causes of action. Only
cases eligible for both procedures were eligible for the study.
The resulting sample includes litigants involved in a wide range
of cases, including property, personal injury, contracts, and
medical malpractice. 
We asked litigants to rate their impression of their court
(“On a scale from 1 to 9 where 1 = extremely negative, 9 =
extremely positive, and 5 = right in the middle, neutral, what is
your impression of the court where this case was filed?”). Liti-
gants also listed the procedures that they or their lawyer had
considered using for their case (“Before you started thinking
about what procedure was best for your case, you or your
lawyer probably thought about all the possible ways that could
resolve your case. What are all the procedures you or your
lawyer considered?”). In addition, we asked whether their court
offered a mediation or arbitration program. We classified
responses as “yes,” “no,” or “don’t know.” For all participants,
the correct response to both questions was “yes.” 
Using information collected from the surveys, we catego-
rized litigants based on both representation status and repeat
experience with litigation. Specifically, litigants were classified
as (1) “represented” if they had a lawyer or were themselves a
lawyer or “unrepresented” if they did not have a lawyer and
were not themselves a lawyer, and (2) “repeat player” if they
had been a plaintiff or defendant in a prior case or “first-time
litigant” if they had no past experience as a party. 
MAIN FINDINGS
The survey data revealed several novel and surprising results: 
• Only about 25% of litigants were aware of their court’s medi-
ation program and only about 27% were aware of their court’s
arbitration program. See Figures 1 and 2. 
• Only 15% of participants identified both programs at their
court. 
• Represented litigants were no more likely than unrepre-
sented parties to correctly identify their court’s programs. 
• Litigants who knew their court offered mediation were
more likely to think highly of their court. However, this
was not the case for arbitration.
• Compared to first-time litigants, repeat players were less
likely to exhibit confusion about whether their court
142 Court Review - Volume 54 
Easing the Road to Civil Justice:
Improving Litigants’ Awareness of ADR Options
Donna Shestowsky
2. See JOHN R. ANDERSON, LEARNING AND MEMORY: AN INTEGRATED
APPROACH 161-63; 204-10 (1st ed., 1995); DAVID G. MYERS, PSY-
CHOLOGY 345-46 (7th ed. 2004).
3. ANDERSON, supra note 2 at 204-10 (1995) (outlining how deep
processing can be achieved by placing the material into context
for the person trying to learn the material, relating it to material
that the person already knows, and helping the person under-
stand why the material is personally relevant).
4. Donna Shestowsky, When Ignorance Is Not Bliss: An Empirical Study
of Litigants’ Awareness of Court-Sponsored Alternative Dispute Reso-
lution Programs, 22 HARV. NEGOT. L. REV. 224-225, 234-235 (2017).
5. See, e.g., Bobbi McAdoo & Art Hinshaw, The Challenge of Institu-
tionalizing Alternative Dispute Resolution: Attorney Perspectives on
the Effect of Rule 17 on Civil Litigation in Missouri, 67 MO. L. REV.
473 (2002).
6. Jerome B. Simandle, Enhancing Access to ADR for Unrepresented
Litigants: Federal Court Programs Provide Models for Helping Pro Se
Parties — and the Justice System, DISP. RESOL. MAG.. Spring 2016 at
7, 8.
7. Shestowsky, supra note 4, at 227.
offered mediation (the ratio of “don’t know” to “yes”
replies was 2.2 times higher among first-timers than
among repeat players) and arbitration (the ratio was 2.53
higher among first-timers than among repeat players).
• Less than one-third of litigants reported that they or their
lawyer had considered using mediation or arbitration.
Negotiation was the most commonly contemplated proce-
dure, followed by trial. The judicial settlement conference
was the procedure least likely to be considered. Nearly
16% indicated that they had contemplated “other” courses
of action, most typically filing a countersuit or bankruptcy. 
• Litigants who knew their court offered mediation were
not more likely to consider using mediation than those
who thought it did not. In contrast, litigants who knew
their court offered arbitration were 2.6 times more likely
to consider using that procedure than those who were
unaware of this possibility, suggesting that the court’s
stamp of approval boosted the odds that litigants would
consider arbitration.
Additional research should explore why litigants are unable
to identify their courts’ ADR offerings. The level of unaware-
ness we observed may be the result of litigants never learning
about their courts’ programs. Research on memory offers
another possible explanation: Litigants may have received
material about their court’s ADR offerings but been unable to
recall this information at the time of the survey, which they
completed after the conclusion of their cases. Studies have
shown that mere exposure to information is not enough to
guarantee learning. 2 To learn and retain information, people
often need to engage in a deep form of processing called “elab-
oration.” Elaboration involves associating new information
with knowledge already recorded in long-term memory, thus
incorporating the new information into a broader familiar nar-
rative.3 If litigants heard about mediation or arbitration in
passing and had superficial conversations (not tailored to their
situation) about the procedures with their lawyers, the infor-
mation may not have been committed to long-term memory.
IMPROVING LITIGANT AWARENESS OF COURT ADR
Regardless of the reasons for their lack of awareness, when
litigants do not know their options, they cannot make informed
decisions about how to resolve their disputes. Our findings sug-
gest several ways that both courts and attorneys can better edu-
cate litigants about available procedures. The following sections
outline several possibilities. 
RECOMMENDATIONS FOR COURTS
1. Courts can institute rules that require attorneys to discuss
ADR with their clients.4 Ideally, these rules would encourage
lawyers to start these discussions early in the litigation
process and revisit them at various points as a case develops.
Because prior research suggests that rules requiring lawyers
to discuss ADR with their clients are not always effective,5
courts should implement additional measures to ensure the
enforcement of these rules. For example, they could require
both attorneys and litigants to sign a disclosure form indi-
cating that the attorney has reviewed both private and court-
sponsored ADR options for the case. Some courts, such as
the U.S. District Court for the Northern District of Califor-
nia, already do this. Courts could also impose penalties on
attorneys who do not comply with the rules. 
2. Courts can directly provide litigant education by giving liti-
gants educational materials about their programs (and ADR in
general), without expecting lawyers to act as intermediaries.
Courts could reap benefits from this course of action: we
found that litigants who were aware that their courts offered
mediation had more favorable impressions of the court.
3. Courts can create attorney-staffed help desks to answer
questions about ADR procedures.6
4. Courts can hold periodic in-person, judge-facilitated ADR
informational meetings. Having authority figures such as
judges hold these sessions may make litigants and lawyers
more willing to fully consider the information.7
5. Courts should remind litigants about their ADR options at
several points in time while their cases are pending. Psycho-
logical research suggests that reminders that are salient to
the particular litigant are likely to be particularly effective
education tools. For example, litigants might be more likely
to remember information about ADR if they are reminded
about their options after they lose a Motion for Summary
Judgement.
6. Some courts already use exit surveys to assess litigant sat-
isfaction with ADR procedures after litigants have used
them. Courts should also survey parties who did not use
these programs, to learn why. To the extent that litigants
are aware of these programs but do not use them, courts
should explore how they can make their programs more
appealing and dismantle any institutional or systemic bar-
riers. If courts discover (as we did) that many litigants are
not aware of their programs, they should obtain feedback
from litigants (and lawyers) to determine how to better
advertise them. 
Although these measures may seem like extra work for a
Court Review - Volume 54 143
8. Roselle L. Wissler, Barriers to Attorneys’ Discussion and Use of ADR,
19 OHIO STATE J. DISP. RESOL. 459, 480-81 (2004). Other barriers to
lawyer-client discussions might be harder to mitigate. For example,
lawyers might be more reluctant to discuss ADR when they overes-
timate a trial win, or underestimate the chances of early settlement,
or face financial incentives to prolong discovery and head to trial.
Id. at 466-67. See Nancy H. Rogers & Craig A. McEwan, Employing
the Law to Increase the Use of Mediation and to Encourage Direct and
Early Negotiations, 13 OHIO ST. J. DISP. RESOL. 831, 846-47 (1998);
Roselle L. Wissler, When Does Familiarity Breed Content? A Study of
the Role of Different Forms of ADR Education and Experience in Attor-
neys’ ADR Recommendations, 2 PEPP. DISP. RESOL. L. J. 199, 208
(2002).
9. Donna Shestowsky, Inside the Mind of the Client: An Analysis of Lit-
igants' Decision Criteria for Choosing Procedures. CONFLICT RESOL.
Q. 1–19 (2018). https://doi.org/10.1002/crq.21228.
10. Gil Siegal, Richard J. Bonnie & Paul S. Appelbaum, Personalized
Disclosure by Information-on-Demand: Attending to Patients’ Needs
in the Informed Consent Process, 40 J. L. MED & ETHICS 359 (2012);
Erica S. Spatz, Harlan M. Krumholz & Benjamin W. Moulton,
Prime Time for Shared Decision Making, 317 (13) JAMA 1309,
1309–1310 (2017). 
11. See Andrew Perrin & Maeve Duggan, Americans’ Internet Access:
2000-15, PEW RES. CTR. 2-3 (June 26, 2015),
http://pewinternet.org/files/2015/06/2015-06-26_internet-usage-
across-demographics-discover_FINAL.pdf (last accessed Sept. 5,
2018).
system designed in part to lighten the workload of the courts,
our research suggests notable benefits. First, these efforts
might encourage litigants to consider using programs in which
courts have already invested, which might ease overburdened
court dockets. Second, such efforts may improve litigants’
impressions of the court. Third, to the extent that, for some lit-
igants, access to ADR is the only reasonable pathway to justice,
improved awareness of these alternatives to trial is paramount.
Although the changes I recommend for courts are important,
attorneys also have a crucial role to play in increasing aware-
ness of ADR procedures. 
RECOMMENDATIONS FOR ATTORNEYS
1. Lawyers should be better educated about ADR. Roselle
Wissler found that one major impediment to lawyer-client
conversations about ADR is attorneys’ lack of knowledge
about such procedures.8 To rectify this situation, skills-based
education focused on ADR procedures should be a manda-
tory part of law school, and attorneys should further hone
their advocacy skills in ADR contexts through CLE programs.
2. Lawyers should receive training on how to counsel clients
about ADR in ways that will facilitate the retention of infor-
mation over time. To promote elaboration and memory recall,
lawyers should emphasize how the advantages and disadvan-
tages of ADR procedures relate to litigants’ goals and values.
Further, lawyers should ensure that clients know they have
the power to participate in decisions regarding which dispute
resolution procedure will be used (limited by any court rules
and the need for consent from the other party). 
3. Even if not required by local rules or the applicable rules of
professional responsibility, attorneys should educate clients
about ADR in every case that might include litigation.
Lawyers should help them review their options after learn-
ing about their clients’ priorities and values, to avoid inad-
vertently injecting their own priorities and values into the
decision-making process.9 Ideally, lawyers would provide
clients with detailed and personalized information on how
ADR options would impact them. This suggestion is sup-
ported by analogy to medical studies showing that patients
are more knowledgeable and more likely to make decisions
consistent with their preferences, values, and goals when
they use decision aids, such as interactive tools, to help them
make treatment choices.10
CONCLUSION
Many courts, including the ones in this study, provide infor-
mation about their ADR programs online. However, our results
suggest that offering general education via the Internet is insuf-
ficient to ensure litigant awareness of court-sponsored ADR
programs. Moreover, this method of providing information
tends to disadvantage vulnerable populations that are less likely
to have access to the Internet, including low-income individu-
als, those with disabilities, and the elderly.11 Therefore, courts
should consider playing a more active role in litigant education.
Their efforts should involve requiring lawyers to educate their
clients, but also incorporate practices that do not assume that
lawyers will act as intermediaries. Such changes would benefit
both unrepresented and represented parties. 
In addition to implementing changes at the court level, more
needs to be done regarding attorney education. Lawyers should
be able to adequately educate their clients about ADR. Attor-
neys must have a concrete understanding of the advantages and
disadvantages of specific procedures in a variety of contexts so
they can effectively counsel clients, tailoring their advice to
their client’s goals and values. When litigants are adequately
informed about their options and thus can have a meaningful
influence on the trajectory of their dispute’s resolution, courts
should become more efficient and litigants should find the road
to civil justice easier to travel.
Donna Shestowsky, J.D., Ph.D. is a Professor of
Law, Martin Luther King Jr. Research Scholar, and
Director of the Lawyering Skills Education Pro-
gram at the University of California, Davis,
School of Law. She is also Affiliated Faculty of the
Department of Psychology at UC Davis. She can
be reached at dshest@ucdavis.edu. This article
was adapted from Donna Shestowsky, When
Ignorance Is Not Bliss: An Empirical Study of Litigants’ Awareness
of Court-Sponsored Alternative Dispute Resolution Programs, 22
HARV. NEGOT. L. REV. 189 (2017), available at
https://ssrn.com/abstract=2945706. This material is based upon work
supported by the National Science Foundation under Grant Number
0920995. Funding from the Norm Brand ‘75 & Nancy Spero ADR
Research Fund also contributed to this article.
144 Court Review - Volume 54 


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

DigitalCommons@University of Nebraska

University of Nebraska - Lincoln DigitalCommons@University of Nebraska - Lincoln Court Review: The Journal of the American Judges Association American Judges Association 2018 Easing the Road to Civil Justice: Improving Litigants’ Awareness of ADR Options Donna Shestowsky University of California, Davis, dshest@ucdavis.edu Follow this and additional works at: https://digitalcommons.unl.edu/ajacourtreview Shestowsky, Donna, "Easing the Road to Civil Justice: Improving Litigants’ Awareness of ADR Options" (2018). Court Review: The Journal of the American Judges Association. 658. https://digitalcommons.unl.edu/ajacourtreview/658 This Article is brought to you for free and open access by the American Judges Association at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Court Review: The Journal of the American Judges Association by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Footnotes1. See TOM R. TYLER, WHY PEOPLE OBEY THE LAW 82 (2d ed. 2006). In an overburdened justice system, litigants often wadethrough years of court proceedings and incur significantexpenses as they seek civil justice. In many instances, alter-native dispute resolution (ADR) procedures can offer litigantsrelief from the expense and waiting time associated with trial.In addition, compared to trials, ADR options often allow liti-gants to resolve their disputes in ways that better meet theirobjectives. For example, ADR permits litigants to set aside therule of law in the interest of shared goals or industry norms.Further, court-sponsored ADR can increase the efficiency of thejudicial system. When litigants are satisfied with their disputeresolution experience, they are more likely to voluntarily com-ply with the outcome.1 This compliance can mean fewerbreach-of-contract claims stemming from settlement agree-ments and fewer appeals. However, court ADR programs can-not realize these benefits if litigants are unaware of their exis-tence. To assess litigant awareness of court ADR offerings, Iconducted a survey study of litigants across three state courts. Ireview the rather sobering findings, and then discuss specificactions that courts and lawyers can take to improve litigants’awareness of such programs.METHODOLOGYMy research team and I collected data from 336 litigants eli-gible for their court’s mediation and arbitration programs todetermine whether they were aware of these offerings. Litigantswere surveyed by phone within three weeks of their cases beingclosed. Participants were selected from three state courts: theThird Judicial District Court, Salt Lake City, Utah; the SuperiorCourt of California, County of Solano; and the Fourth JudicialDistrict, Multnomah County, Oregon. These courts were cho-sen because they offer both mediation and non-binding arbitra-tion (in addition to trial) for the same causes of action. Onlycases eligible for both procedures were eligible for the study.The resulting sample includes litigants involved in a wide rangeof cases, including property, personal injury, contracts, andmedical malpractice. We asked litigants to rate their impression of their court(“On a scale from 1 to 9 where 1 = extremely negative, 9 =extremely positive, and 5 = right in the middle, neutral, what isyour impression of the court where this case was filed?”). Liti-gants also listed the procedures that they or their lawyer hadconsidered using for their case (“Before you started thinkingabout what procedure was best for your case, you or yourlawyer probably thought about all the possible ways that couldresolve your case. What are all the procedures you or yourlawyer considered?”). In addition, we asked whether their courtoffered a mediation or arbitration program. We classifiedresponses as “yes,” “no,” or “don’t know.” For all participants,the correct response to both questions was “yes.” Using information collected from the surveys, we catego-rized litigants based on both representation status and repeatexperience with litigation. Specifically, litigants were classifiedas (1) “represented” if they had a lawyer or were themselves alawyer or “unrepresented” if they did not have a lawyer andwere not themselves a lawyer, and (2) “repeat player” if theyhad been a plaintiff or defendant in a prior case or “first-timelitigant” if they had no past experience as a party. MAIN FINDINGSThe survey data revealed several novel and surprising results: • Only about 25% of litigants were aware of their court’s medi-ation program and only about 27% were aware of their court’sarbitration program. See Figures 1 and 2. • Only 15% of participants identified both programs at theircourt. • Represented litigants were no more likely than unrepre-sented parties to correctly identify their court’s programs. • Litigants who knew their court offered mediation weremore likely to think highly of their court. However, thiswas not the case for arbitration.• Compared to first-time litigants, repeat players were lesslikely to exhibit confusion about whether their court142 Court Review - Volume 54 Easing the Road to Civil Justice:Improving Litigants’ Awareness of ADR OptionsDonna Shestowsky2. See JOHN R. ANDERSON, LEARNING AND MEMORY: AN INTEGRATEDAPPROACH 161-63; 204-10 (1st ed., 1995); DAVID G. MYERS, PSY-CHOLOGY 345-46 (7th ed. 2004).3. ANDERSON, supra note 2 at 204-10 (1995) (outlining how deepprocessing can be achieved by placing the material into contextfor the person trying to learn the material, relating it to materialthat the person already knows, and helping the person under-stand why the material is personally relevant).4. Donna Shestowsky, When Ignorance Is Not Bliss: An Empirical Studyof Litigants’ Awareness of Court-Sponsored Alternative Dispute Reso-lution Programs, 22 HARV. NEGOT. L. REV. 224-225, 234-235 (2017).5. See, e.g., Bobbi McAdoo & Art Hinshaw, The Challenge of Institu-tionalizing Alternative Dispute Resolution: Attorney Perspectives onthe Effect of Rule 17 on Civil Litigation in Missouri, 67 MO. L. REV.473 (2002).6. Jerome B. Simandle, Enhancing Access to ADR for UnrepresentedLitigants: Federal Court Programs Provide Models for Helping Pro SeParties — and the Justice System, DISP. RESOL. MAG.. Spring 2016 at7, 8.7. Shestowsky, supra note 4, at 227.offered mediation (the ratio of “don’t know” to “yes”replies was 2.2 times higher among first-timers thanamong repeat players) and arbitration (the ratio was 2.53higher among first-timers than among repeat players).• Less than one-third of litigants reported that they or theirlawyer had considered using mediation or arbitration.Negotiation was the most commonly contemplated proce-dure, followed by trial. The judicial settlement conferencewas the procedure least likely to be considered. Nearly16% indicated that they had contemplated “other” coursesof action, most typically filing a countersuit or bankruptcy. • Litigants who knew their court offered mediation werenot more likely to consider using mediation than thosewho thought it did not. In contrast, litigants who knewtheir court offered arbitration were 2.6 times more likelyto consider using that procedure than those who wereunaware of this possibility, suggesting that the court’sstamp of approval boosted the odds that litigants wouldconsider arbitration.Additional research should explore why litigants are unableto identify their courts’ ADR offerings. The level of unaware-ness we observed may be the result of litigants never learningabout their courts’ programs. Research on memory offersanother possible explanation: Litigants may have receivedmaterial about their court’s ADR offerings but been unable torecall this information at the time of the survey, which theycompleted after the conclusion of their cases. Studies haveshown that mere exposure to information is not enough toguarantee learning. 2 To learn and retain information, peopleoften need to engage in a deep form of processing called “elab-oration.” Elaboration involves associating new informationwith knowledge already recorded in long-term memory, thusincorporating the new information into a broader familiar nar-rative.3 If litigants heard about mediation or arbitration inpassing and had superficial conversations (not tailored to theirsituation) about the procedures with their lawyers, the infor-mation may not have been committed to long-term memory.IMPROVING LITIGANT AWARENESS OF COURT ADRRegardless of the reasons for their lack of awareness, whenlitigants do not know their options, they cannot make informeddecisions about how to resolve their disputes. Our findings sug-gest several ways that both courts and attorneys can better edu-cate litigants about available procedures. The following sectionsoutline several possibilities. RECOMMENDATIONS FOR COURTS1. Courts can institute rules that require attorneys to discussADR with their clients.4 Ideally, these rules would encouragelawyers to start these discussions early in the litigationprocess and revisit them at various points as a case develops.Because prior research suggests that rules requiring lawyersto discuss ADR with their clients are not always effective,5courts should implement additional measures to ensure theenforcement of these rules. For example, they could requireboth attorneys and litigants to sign a disclosure form indi-cating that the attorney has reviewed both private and court-sponsored ADR options for the case. Some courts, such asthe U.S. District Court for the Northern District of Califor-nia, already do this. Courts could also impose penalties onattorneys who do not comply with the rules. 2. Courts can directly provide litigant education by giving liti-gants educational materials about their programs (and ADR ingeneral), without expecting lawyers to act as intermediaries.Courts could reap benefits from this course of action: wefound that litigants who were aware that their courts offeredmediation had more favorable impressions of the court.3. Courts can create attorney-staffed help desks to answerquestions about ADR procedures.64. Courts can hold periodic in-person, judge-facilitated ADRinformational meetings. Having authority figures such asjudges hold these sessions may make litigants and lawyersmore willing to fully consider the information.75. Courts should remind litigants about their ADR options atseveral points in time while their cases are pending. Psycho-logical research suggests that reminders that are salient tothe particular litigant are likely to be particularly effectiveeducation tools. For example, litigants might be more likelyto remember information about ADR if they are remindedabout their options after they lose a Motion for SummaryJudgement.6. Some courts already use exit surveys to assess litigant sat-isfaction with ADR procedures after litigants have usedthem. Courts should also survey parties who did not usethese programs, to learn why. To the extent that litigantsare aware of these programs but do not use them, courtsshould explore how they can make their programs moreappealing and dismantle any institutional or systemic bar-riers. If courts discover (as we did) that many litigants arenot aware of their programs, they should obtain feedbackfrom litigants (and lawyers) to determine how to betteradvertise them. Although these measures may seem like extra work for aCourt Review - Volume 54 1438. Roselle L. Wissler, Barriers to Attorneys’ Discussion and Use of ADR,19 OHIO STATE J. DISP. RESOL. 459, 480-81 (2004). Other barriers tolawyer-client discussions might be harder to mitigate. For example,lawyers might be more reluctant to discuss ADR when they overes-timate a trial win, or underestimate the chances of early settlement,or face financial incentives to prolong discovery and head to trial.Id. at 466-67. See Nancy H. Rogers & Craig A. McEwan, Employingthe Law to Increase the Use of Mediation and to Encourage Direct andEarly Negotiations, 13 OHIO ST. J. DISP. RESOL. 831, 846-47 (1998);Roselle L. Wissler, When Does Familiarity Breed Content? A Study ofthe Role of Different Forms of ADR Education and Experience in Attor-neys’ ADR Recommendations, 2 PEPP. DISP. RESOL. L. J. 199, 208(2002).9. Donna Shestowsky, Inside the Mind of the Client: An Analysis of Lit-igants' Decision Criteria for Choosing Procedures. CONFLICT RESOL.Q. 1–19 (2018). https://doi.org/10.1002/crq.21228.10. Gil Siegal, Richard J. Bonnie & Paul S. Appelbaum, PersonalizedDisclosure by Information-on-Demand: Attending to Patients’ Needsin the Informed Consent Process, 40 J. L. MED & ETHICS 359 (2012);Erica S. Spatz, Harlan M. Krumholz & Benjamin W. Moulton,Prime Time for Shared Decision Making, 317 (13) JAMA 1309,1309–1310 (2017). 11. See Andrew Perrin & Maeve Duggan, Americans’ Internet Access:2000-15, PEW RES. CTR. 2-3 (June 26, 2015),http://pewinternet.org/files/2015/06/2015-06-26_internet-usage-across-demographics-discover_FINAL.pdf (last accessed Sept. 5,2018).system designed in part to lighten the workload of the courts,our research suggests notable benefits. First, these effortsmight encourage litigants to consider using programs in whichcourts have already invested, which might ease overburdenedcourt dockets. Second, such efforts may improve litigants’impressions of the court. Third, to the extent that, for some lit-igants, access to ADR is the only reasonable pathway to justice,improved awareness of these alternatives to trial is paramount.Although the changes I recommend for courts are important,attorneys also have a crucial role to play in increasing aware-ness of ADR procedures. RECOMMENDATIONS FOR ATTORNEYS1. Lawyers should be better educated about ADR. RoselleWissler found that one major impediment to lawyer-clientconversations about ADR is attorneys’ lack of knowledgeabout such procedures.8 To rectify this situation, skills-basededucation focused on ADR procedures should be a manda-tory part of law school, and attorneys should further honetheir advocacy skills in ADR contexts through CLE programs.2. Lawyers should receive training on how to counsel clientsabout ADR in ways that will facilitate the retention of infor-mation over time. To promote elaboration and memory recall,lawyers should emphasize how the advantages and disadvan-tages of ADR procedures relate to litigants’ goals and values.Further, lawyers should ensure that clients know they havethe power to participate in decisions regarding which disputeresolution procedure will be used (limited by any court rulesand the need for consent from the other party). 3. Even if not required by local rules or the applicable rules ofprofessional responsibility, attorneys should educate clientsabout ADR in every case that might include litigation.Lawyers should help them review their options after learn-ing about their clients’ priorities and values, to avoid inad-vertently injecting their own priorities and values into thedecision-making process.9 Ideally, lawyers would provideclients with detailed and personalized information on howADR options would impact them. This suggestion is sup-ported by analogy to medical studies showing that patientsare more knowledgeable and more likely to make decisionsconsistent with their preferences, values, and goals whenthey use decision aids, such as interactive tools, to help themmake treatment choices.10CONCLUSIONMany courts, including the ones in this study, provide infor-mation about their ADR programs online. However, our resultssuggest that offering general education via the Internet is insuf-ficient to ensure litigant awareness of court-sponsored ADRprograms. Moreover, this method of providing informationtends to disadvantage vulnerable populations that are less likelyto have access to the Internet, including low-income individu-als, those with disabilities, and the elderly.11 Therefore, courtsshould consider playing a more active role in litigant education.Their efforts should involve requiring lawyers to educate theirclients, but also incorporate practices that do not assume thatlawyers will act as intermediaries. Such changes would benefitboth unrepresented and represented parties. In addition to implementing changes at the court level, moreneeds to be done regarding attorney education. Lawyers shouldbe able to adequately educate their clients about ADR. Attor-neys must have a concrete understanding of the advantages anddisadvantages of specific procedures in a variety of contexts sothey can effectively counsel clients, tailoring their advice totheir client’s goals and values. When litigants are adequatelyinformed about their options and thus can have a meaningfulinfluence on the trajectory of their dispute’s resolution, courtsshould become more efficient and litigants should find the roadto civil justice easier to travel.Donna Shestowsky, J.D., Ph.D. is a Professor ofLaw, Martin Luther King Jr. Research Scholar, andDirector of the Lawyering Skills Education Pro-gram at the University of California, Davis,School of Law. She is also Affiliated Faculty of theDepartment of Psychology at UC Davis. She canbe reached at dshest@ucdavis.edu. This articlewas adapted from Donna Shestowsky, WhenIgnorance Is Not Bliss: An Empirical Study of Litigants’ Awarenessof Court-Sponsored Alternative Dispute Resolution Programs, 22HARV. NEGOT. L. REV. 189 (2017), available athttps://ssrn.com/abstract=2945706. This material is based upon worksupported by the National Science Foundation under Grant Number0920995. Funding from the Norm Brand ‘75 & Nancy Spero ADRResearch Fund also contributed to this article.144 Court Review - Volume 54 

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

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