Why Do Courts Use ADR?
Courts have many motivations for using ADR processes. They are generally grouped as increasing participant satisfaction, reducing time, and saving money; however, a fourth group of motivators - bureaucratic, political and other pressures - also may be at work. No matter what the motivating factor, the court must always be focused on providing a just process through ADR. Additionally, while the outcomes may not be exactly the same as those reached through traditional litigation, the process and the outcomes must be perceived as fair by the parties.
Improving the experience that participants have while resolving their disputes is an important motivator for many court ADR programs. Some judges frame this question in terms of justice - when that litigant came to court, did he or she feel like justice was served, even if he or she did not prevail? Others look at it in terms of customer satisfaction - when that litigant came to court, did he or she feel that he or she received good service? Either way, serving the party well is central to this motivation.
Improvements in party experience can play out in different ways in the varying sectors of the court. For example:
- In a divorce court, a mediation program may increase procedural justice measures such as unrepresented parents' sense of whether the process was fair, whether they had a voice in it, and whether they were heard.
- In a juvenile court, a restorative justice program may increase the satisfaction levels of the victims (by understanding why the offense took place or receiving recompense), the community (by reducing tensions or reducing offenses), and the offender (by limiting re-offending or improving the future outlook).
- In a child dependency court, a co-mediation program may result in other benefits, such as more services for biological parents, better communication among all participants, and less time in foster care for children, which in turn can raise the satisfaction levels of participants.
Time and Money Savings
Savings of time and money is really a broader concept that encompasses the amount of resources used by the court and the parties and not just cash and hours. On the court side, for example, those courts with high case burdens often look to ADR to reduce backlogs of cases by lessening the caseload of judges as cases dealt with through the ADR process.
Many courts have looked to ADR processes to reduce time spent on a case both by the court and by the parties. This time savings can be measured in many ways, including: time from filing to case closure; number of court appearances prior to resolution; amount of attorney time spent on discovery and other case tasks; and level of compliance, which determines how much activity is needed to deal with compliance issues following case closure.
Courts see ADR as potentially saving parties money by reducing the number of attorney hours spent on the case, by decreasing the amount of discovery done and/or settling the case sooner and with fewer court appearances. For the courts, savings are seen as coming from the lower number of court hearings and trials, and other time that would be spent by the judge and other court personnel on the case.
Bureaucratic, Political and Other Motivators
There are countless human and organizational motivators that may be involved in the decision by courts to use ADR. For some courts, ADR programs are implemented as a response to a mandate from higher up in the court system or because of a legislative mandate. There may be a desire on the part of judicial or other leadership to accomplish a political goal, such as appease a county board, or follow through on a campaign promise to modernize the courts. A court may decide that a particular form of ADR is simply the way that law is being practiced in a given area and so a program should be adopted.
Courts are motivated to establish ADR programs primarily by the purported benefits that they bring to litigants and courts. Many of these benefits are very real; some are not as clear. What the research clearly shows is that some programs achieve the goals of enhancing litigant experience and reducing time and money costs, and others do not.
Nonetheless, the majority of participants in most programs have positive responses to their experience with ADR.
RSI Director of Research Jennifer Shack wrote about her research on whether mediation was providing the benefits described above in Dispute Resolution Magazine Winter 2003. When she surveyed 62 studies that evaluate the effectiveness of more than 100 court mediation programs, she found, "The studies indicate that litigants like mediation and its outcome, and that they like it more when they settle the case than when they do not. Combined, they show that more than 70% of parties are satisfied with the mediation process and that a similar percentage is satisfied with its outcome."
Note that the finding above does not say that significantly more parties were satisfied with mediation than with litigation. Whether that was the case varied from program to program. Similarly, there is no consistent finding that mediation leads to significantly better results in areas such as recidivism in juvenile cases, or time or cost savings. However, there were extremely few programs in which it was found that mediation had a negative impact on those issues. Similar results have been found in studies of arbitration and ENE. Updated research on this topic has not changed the previous conclusions.
What are those involved with court ADR programs to do if they want to establish programs that accomplish these desirable goals? First they need to design their program with these goals in mind. The Instruction Manual has information on how to design a program. Also critically important, they need to incorporate monitoring and evaluation components into their ADR programs to get feedback on what needs to be tweaked in order to achieve their goals. They need to measure what happens to see if they meet the goals they set. For information on how to establish a monitoring program, see Monitoring and Evaluation.
Selected Resources turn annotation on
Court ADR 25 Years After Pound: Have We Found a Better Way?Brazil, Wayne D.. Ohio State Journal on Dispute Resolution, 18(1): 93-149, 2003
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.
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.
Efficiency: Mediation in Courts Can Bring Gains, But Under What Conditions?Shack, Jennifer. Dispute Resolution Magazine, 9(2): 11-13, Winter 2003
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.