This article reveals that few litigants know that the courts in which their cases have been filed offer mediation or arbitration. For this particular study, Shestowsky surveyed 336 civil case litigants whose case had a median amount in controversy of 35,000 and had both mediation and arbitration programs for which those surveyed were eligible. The litigants hailed from California, Oregon and Utah, where court rules require attorneys to discuss ADR options with their clients. Of those surveyed, only 24% of litigants knew that their court offered mediation and only 27% knew that arbitration was a possibility. Furthermore, only 31% said that they or their attorney contemplated mediation while only 24% contemplated arbitration. The only factor that increased the likelihood of litigants knowing whether their court offered ADR was whether they were repeat players. Repeat players were 2.53 times more likely to be aware of the court ADR programs. Additionally, the study also found that those litigants who knew that the court offered mediation had a higher opinion of the court than those who did not.
From these results, Shestowsky concludes that despite the court rules, attorneys were not having enough of a discussion about court ADR options for the option to stick in the litigants’ memories. Given the percentage of litigants aware of court ADR programs, the article questions whether litigants are giving informed consent to participate in the chosen process.
This article is a part of a series of articles presenting different aspects of the author’s research into the decision-making of litigants in civil cases. Other articles reported that litigants prefer mediation, looked at what they wanted from a dispute resolution process, and discussed how litigants evaluate characteristics of legal procedures.