Recommended Resources turn annotation on
The resources listed here are recommended because they represent the best thinking on issues related to court ADR. The list does not include all the excellent resources on court ADR. Instead, it consists of a sample of resources that provide a core understanding of the field. Some of the resources have received universal praise, while others have sparked great debate. They all, however, add to the ongoing evolution of the ADR field.
The resources include not only books and articles, but also rules, standards, and legislation. One resource type that is not found here is evaluations of court ADR programs. The best of those are listed under Court ADR Effectiveness.
Note: RSI's selection of these items is not an endorsement of the opinions of the authors.
Abstract: This evaluation looked at data from 103 mediations and 260 participants. Mediation resulted in agreement on all or some of the issues 87% of the time, and in those cases in which Alaska Protective Services was involved, 91% of the agreements were found to have "an acceptable level of risk." Agreements were more likely to be reached for living arrangements, level of care needed, whether guardianship or conservatorship was needed, and how decisions should be made. Plans for dealing with family conflict were least likely to be agreed upon at mediation.
Participants were largely satisfied with the process and felt they were listened to, understood, and treated fairly and with respect. There were no differences in these responses based on the participants' role. Interviews suggested that mediation reduced the number of contested hearings; however, there was insufficient data to verify this.
Bibliographic Summary of Cost, Pace, and Satisfaction Studies of Court-Related Mediation Programs, 2nd Ed.Shack, Jennifer E.. 2002, 2007
Abstract: This is an annotated bibliography of evaluations of court-related mediation programs. It provides information on the methods and findings of more than 70 studies of civil, family, small claims, workers' compensation, appellate, victim-offender, and bankruptcy mediation programs. Most focus on time, cost, and satisfaction of the participants.
- Shack, Jennifer. 2010
Abstract: This evaluation looked at three areas: program performance, program process, and stakeholder assessment of mediation and understanding of its role and function within the child protection system. The study included data from 164 cases referred to mediation, as well as interviews of mediation participants, judges, attorneys and program staff. Participants, particularly family members, have very positive reactions to the program. However, very few are given the opportunity to experience it. Judges and hearing officers see the value in the program, but do not often make referrals to it. The majority of judges and attorneys interviewed believed mediation could occur early on, but almost always referred cases to the program after the disposition hearing (generally two years after the children were brought into the system). This is the paradox of the program. It works well, is well-regarded by almost everyone, and the participant families find it to be a rewarding experience, but it is underutilized.
Abstract: This article summarizes the findings of 62 studies of court-related mediation regarding cost, pace of litigation and satisfaction. It then discusses ways in which courts can improve the monitoring and evaluation of their mediation programs so that they can better determine whether the programs are achieving the goals set for them, as well as what characteristics lead to the most effective programs.
Abstract: The article suggests that the idea that claimants prefer to resolve their conflicts through mediation instead of adjudication is based on questionable assumptions. The author refers to empirical studies affirming that litigants' satisfaction with the dispute resolution system is strongly dependent on their perception of procedural fairness. Regardless of how their cases are resolved, litigants feel more positive about the system when they believe the process is fair. Those studies state that perceptions of procedural fairness are higher for trial and non-binding arbitration than for less adversarial and adjudicative systems. Finally, the author recommends, among other things, that a court ADR program should assume that some civil disputes need to be tried and that trial should not be considered as a failure of the legal system.
Abstract: The Michigan Office of Dispute Resolution recently released a study that showed the use of case evaluation and mediation for civil cases in the state's circuit courts led to higher settlement rates than when neither process was used. Among the study's 33 main findings, the authors reported that the increase in settlement rates was especially pronounced when mediation was used, and mediation was also found to reduce costs for courts and parties. Although the use of case evaluation did have a positive result on settlement rates, it was found to "significantly increase the length of a time a case was open." The study, conducted by Courtland Consulting, looked at tort and non-tort cases seeking monetary awards of more than $25,000. Tort cases are required by Michigan Supreme Court rule to be referred to case evaluation, a process in which a panel of three attorneys appointed by the court hears both sides of a case and then renders a monetary judgment. The authors provide many recommendations for improving both the case evaluation and mediation processes. They also encourage courts to continue offering both processes, but, given the evidence that mediation is more effective, to not require case evaluation for non-tort cases.
Abstract: An examination of the factors that have been found to contribute to the effectiveness of mediation. The author looks at empirical research in domestic relations, community, small claims, civil, and appellate civil mediation to discern the factors contributing to the success of mediation in each area.
The relationship between parties and the level of conflict in the relationship affected the likely success in community mediation and domestic relations, but not in small claims or civil. However, the intensity of the dispute affected success across all areas. The mediators most likely to settle cases were those who had the most experience mediating. Specific skills were found to lead to greater success, as were certain actions taken by mediators, attorneys, and parties.
Abstract: This book is designed to offer guidance to district, magistrate and bankruptcy judges in determining when and how to refer a case to ADR and how to manage the case once it has been referred. Within this framework it discusses mediation, arbitration, early neutral evaluation, summary jury trial and mini-trial processes. The issues that arise from referral to these processes are also discussed, including selecting and compensating the neutral, confidentiality and participation of the parties. The book is available both in hard copy and online.
Abstract: "Gain insight into evaluating outcomes related to client satisfaction, perceptions of fairness, the impact upon restitution completion rates and recidivism rates and the cost implications. ... The Handbook of Victim Offender Mediation addresses a number of unresolved and controversial issues, including resisting co-option by the dominant retributive justice system and maintaining the vision of restorative justice while achieving greater impact on the larger criminal justice system" (Abstract taken from publisher's description).
Abstract: This article discusses judicial mediation, sets forth criticisms of judicial mediation, and either defends or validates such arguments. The author begins by describing the history of ADR in the federal courts in terms of court rules and legislation that have been established. He describes the mediation process, highlighting the two most common models - evaluative and facilitative. The author, a trial judge, also walks the reader through his process of conducting mediations for cases he will later hear at trial. In so doing, he highlights the use of discovery, confidentiality, good faith, and the opportunity for reaching creative solutions to disputes. In the final section, the author discusses the arguments against judges acting as mediators. He defends several criticisms of this role by addressing doubts about time and cost savings, potential ethical dilemmas of confidentiality and impartiality that a judge mediating a case on his/her docket faces, and the idea that judges resort to mediation for the sole purpose of clearing their dockets. The author concludes by sharing some concerns about judges as mediators; for example, he agrees that a mediation that involves a pro se party would be unbalanced and that a trial judge should not mediate a case proceeding to bench trial considering he or she must try the facts and the law.
Mediating Family Disputes in a World with Domestic Violence: How To Devise a Safe and Effective Court-Connected Mediation ProgramRimelspach, Rene. Ohio State Journal on Dispute Resolution, 17(1): 95-112, 2001
Abstract: This article presents arguments for and against mediating divorce cases involving domestic violence. It then argues for the mediation of these cases and provides guidelines for courts on how to do so while ensuring the safety of and a balance of power between the parties.
Abstract: This act authorizes each United States District Court to require litigants in all civil cases to consider the use of ADR process. It provides the framework by which each district court should promulgate procedures and rules regarding the ADR process within its jurisdiction.
Abstract: These guidelines review best practices for child protection mediation and lay out guiding principles, provide strategies for program design and conducting mediation sessions, and offer suggestions for monitoring and evaluating programs.
Model Court Protocol for Domestic Violence and Child Abuse Screening in Matters Referred to Domestic Relations MediationMichigan Domestic Violence Prevention and Treatment Board
Abstract: This screening protocol is "designed to identify parties involved in divorce or child custody actions for whom mediation may be inappropriate because of domestic violence or child abuse ... ." According to the protocol, the probability of a power imbalance and the potential for minimizing the importance of the violence may result in inherently unsafe agreements. For this reason, cases should be deemed inappropriate for mediation when domestic violence is present.
Abstract: These model standards are the result of a joint effort by the American Arbitration Association, the American Bar Association and the Society of Professionals in Dispute Resolution. Originally written in 1994, they were revised by a joint committee in 2005. The model standards address: 1) self-determination; 2) impartiality; 3) conflicts of interest; 4) competence; 5) confidentiality; 6) quality of the process; 7) advertising and solicitation; 8) fees; and 9) the mediator's obligations to the mediation process.
Abstract: The purpose of the model standards are to serve as a guide for the conduct of family mediators, to inform the mediating parties, and to promote public confidence in mediation as a process for resolving disputes. The standards cover qualification of the mediator, parties' readiness to mediate, conflicts of interest, compensation, fees and charges to the parties, impartiality of mediator, confidentiality, promotion of children's' best interests, and identification of child abuse, neglect, or domestic violence.
Abstract: These standards for court-connected mediation programs have been developed to guide and inform courts interested in initiating, expanding or improving mediation programs to which they refer cases. The standards encompass access to mediation, selection of cases and timing of referral, mandatory attendance, qualification and selection of mediators, ethical standards for mediators, confidentiality, the role of lawyers, inappropriate pressure to settle, communications between mediators and the court, funding of programs and compensation of mediators, mediators' liability, and the enforceability of mediated agreements.
Abstract: The Judicial Council of the Ninth Circuit Appellate Court prepared a model rule to assist other federal courts in writing rules for their own ADR programs. The rule is comprehensive in both language and scope and can be adapted to any ADR process. Also included are rules specific to mediation, early neutral evaluation, mini-trial, and arbitration in terms of definition and criteria for inclusion on the respective panel of neutrals.
Abstract: The Uniform Mediation Act was drafted as a joint effort between the ABA and the National Conference of Commissioners on Uniform State Laws (NCCUSL). The purpose of the act is to create a uniform privilege for mediation communications in all of the United States, thus eliminating the high variability and inconsistency between various state rules. It also contains a conflict of interest clause, as well as confidentiality language. The NCCUSL website provides a legislative history for the act as well as the act itself. As of 2011, the act had been adopted by 10 states and the District of Columbia.
Abstract: This is an evaluation of the second phase of the Illinois Supreme Court's court-annexed mandatory arbitration program in Cook County for Municipal Department ("M") cases filed in 1993. Questions addressed in the report include: attorney and arbitrator satisfaction; types of case and disposition time frames; and characteristics distinguishing successfully arbitrated cases.
Abstract: The author discusses the challenges of addressing the ethical dimension of the practice of mediation and proposes a hands-on strategy for dealing with ethical issues in mediation. He notes that the first response to ethical questions is to write a rule, and posits that doing so does not adequately respond to the problem. The author agrees with Professor Robert Baruch Bush, who argued mediators should be sensitized to their ethical duties during their training and practice. In addition, he calls for a closer examination of ethics in the field. He offers his own agenda for helping mediators perform ethically, which involves establishing systems that allow them to recognize their ethical obligations and improving teaching methods on how mediators should approach ethical issues in mediation.
Abstract: This book provides an overview of the entire process of mediation and identifies when mediation is appropriate and when it has a high probability of success. The author outlines 12 stages of mediation process and discusses mediator activities that occur prior to mediation and skills used during mediation. He then lays out the steps involved in reaching a settlement and preparing final agreement packages.
- Alfini, James J.; McCabe, Catherine G.. Arkansas Law Review, Vol 54, pp 171-206, 2001
Abstract: In examining the possible effects of the institutionalization of mediation, the authors present case law on confidentiality, good faith participation in mediation, and the enforcement of agreements. In dealing with these issues, the courts have generally been sensitive to mediation's core values (namely party self-determination, voluntariness, confidentiality, and mediator impartiality); however, conflicts between these values and the court's interest in encouraging settlement and ensuring fairness will continue to arise. To deal with these conflicts, the courts should create a framework for deciding such issues as enforcement of mediated agreements and good faith participation that recognizes "mediation's unique character and attributes."
James Alfini is a member of the RSI Executive Committee.
Abstract: This web site focuses on the litigation of disputes arising from mediation, which the site authors report increased 95% nationwide between 1999 and 2003. The site features a continuously updated database of cases filed in federal and state courts involving mediation disputes. The authors, both Hamline professors, also provide written summaries of the most significant mediation cases, as well as teaching videos that highlight and explain errors made in reported mediation cases.
Abstract: "There has been a long and constructive relationship between community mediation centers and the court system. That connection has not, however, been without problems. The authors explore both the benefits and challenges of the working relationship between the centers and the courts" (Taken from abstract).
Abstract: This article takes a retrospective and prospective look at the field of ADR. The author states that ADR should be considered as one of many ways to resolve a dispute. In other words, ADR has a place in the delivery of justice and it is important to know when to use it. He says that court ADR promises many things, but two are most significant: (1) opportunity and (2) process integrity. For the promise of process integrity, he sets forth challenges that court ADR programs face to keep this promise.
The article also discusses the question of whether the addition of ADR has improved the administration of justice. In terms of what constitutes the administration of justice, the author believes it can be a matter of efficiency, feelings about fairness and about using the process, to what extent the process permits or encourages party participation, the extent to which the process contributes to the parties' understanding of their situation and their options, and the parties' perception of the justice system. The author goes on to explain the difficulty of measuring the aggregate effects of court ADR programs and the need to work towards generating reliable empirical assessments. He then questions whether the aggregate results should be a primary concern when the primary promise of court ADR is to create "opportunities through respect-worthy processes." In other words, shouldn't it be equally important to be concerned about findings that reveal that a large percentage of parties who participated in an ADR program have a greater respect for the justice system?
After discussing the importance of understanding that there are differences between programs and the quality of studies, the author provides some findings of court ADR programs. He discusses what has and what has not been gained. In terms of what has not been gained, he sets forth what he believes are the underlying sources of resistance to expanding court ADR; these sources of peril derive from our relationships with legislatures, judges, practicing lawyers, and lawyers who are interested in making a living as an ADR neutral, or who already do make their living this way. Finally, he discusses perils with sources that are internal, meaning within the community of supporters of court ADR.
Abstract: The author asserts that within the context of the courts, mediation should deliver to disputants an experience of procedural justice, or a sense that justice is being done. With this in mind, she examines the changes that have occurred in court-connected mediation - greater attorney involvement, greater emphasis on assessment of the value of the case, greater reliance on caucus, and less emphasis on creative solutions - and places those changes in the context of procedural justice. She concludes that these changes may diminish litigants' perception of justice and tarnish the legitimacy and authority of the courts.
Abstract: This is the book that introduced the idea of transformative mediation. It is for those interested in gaining a deeper understanding of this method.
The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization?Welsh, Nancy A.. Harvard Negotiation Law Review, 6(1): 1-, 2001
Abstract: Self-determination is considered to be one of the cornerstones of mediation but, the author argues, the meaning of self-determination is changing for court-connected mediation as it becomes more institutionalized. In the new meaning of self-determination, parties play a less central role and mediators place more emphasis on winning a settlement. This has led to a greater number of parties claiming that they were coerced into settlement. The author examines the ways in which party self-determination can be protected and argues for a three-day cooling off period before mediated settlement agreements become enforceable.
Abstract: This is a quarterly publication devoted to the latest developments in the theory and practice of mediation. All past issues have been archived in pdf form on the Wiley/Jossey-Bass web site.
Abstract: "Family and Conciliation courts Review serves as a communication medium for members of the Association of Family and Conciliation Courts, other persons and agencies interested in family law, court and conciliation practices and procedures, and the strengthening and preservation of marriage and family life. It also aims toward stimulating the growth of new conciliation and family courts in areas not now providing such services. Additionally it is concerned with the prevention of family disharmony and the effective preparation of people for marriage and family life. FCCR is inter-disciplinary and invites contributions from the fields of law and the behavioral sciences."
Abstract: The Journal of Dispute Resolution is published bi-annually and features information of special relevance to practitioners of dispute resolution. It covers negotiation, mediation, litigation, arbitration and consensus building.
Abstract: "An international journal devoted to the publication of works that advance the theory, analysis, and practice of negotiation and dispute resolution."
Abstract: "The primary purpose of JDR is to aid the exploration of alternative forms of dispute resolution. The publication serves as an exchange of information between scholars, who develop and comment upon theoretical models of dispute resolution, and practitioners, who are involved in implementing models as actual arbitrators, mediators and judges."