Courts have many motivations for using ADR processes. These motivators include increasing participant satisfaction, reducing time, and saving money. However, a fourth group of motivation may arise due to bureaucratic, political and other pressures. No matter what the motivating factor, a court looking to provide an ADR program must ensure that the program provides participants with a just process. Additionally, while the outcomes may not be exactly the same as those reached through traditional litigation, parties involved in a court ADR program must perceive the process and the outcomes as being fair.
Improving the participant experience during the resolution process is an important motivator for many court ADR programs. Some judges frame this question in terms of justice. For example, some judges may ask, when the litigant came to court, did he or she feel like justice was served, even if he or she did not prevail? Other judges may look at justice it in terms of customer satisfaction. These types of judges may ask, when that litigant came to court, did he or she feel that he or she received good service? Whichever way judges may ask the question, it is clear that ensuring that the parties are well served is a key component of any program.
Improvements in party experience can play out in different ways in various sectors of the court. For example:
- In a divorce court, a mediation program may increase procedural justice measures such as an unrepresented parent’s sense of whether the process was fair, whether he or she had a voice in it, and whether he or she felt like they were heard.
- In a juvenile court, a restorative justice program may increase the satisfaction levels of a victim (allowing them to understand why the offense took place or receive 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 participants, and less time in foster care for children.
Time and Money Savings
Saving time and money are broader concepts that consider the entire amount of resources used by the court and the parties and do not just focus on the amount of money and hours expended. For example, courts with high case burdens often look to ADR with the hopes that it will reduce backlogs of cases and lessen the judges’ caseloads by transitioning cases to the ADR process.
Many courts have looked to ADR processes to reduce time spent on a case by both the court and by the parties. Evaluating these savings of time can be done in many ways, including measuring the: 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.
The potential savings from ADR may occur in a variety of ways. For example, courts may believe that parties to an ADR process may be financial saved because ADR may reduce the number of attorney hours spent on a case, decrease the amount of discovery done, and/or settle a case sooner and with fewer court appearances. For courts, savings can be found with a decrease of court hearings and trials and the saving of time that would be spent by a judge or other court personnel on the case.
Bureaucratic, Political and Other Motivators
There are countless human and organizational motivators that may also influence a court’s decision to use ADR. For some courts, ADR programs are implemented as a response to a senior court mandate or because a legislative mandate. Other influence to create an ADR program may stem from a judge’s or other leadership member’s desire to accomplish a political goal, such as appeasing a county board, or follow through on a campaign promise to modernize the courts. Additionally, other courts may decide that transitioning to using a particular form of ADR is simply the way that a particular area of and thus a program should be adopted.
Determining Whether Goals Are Accomplished
Courts are motivated to establish ADR programs primarily because of the purported benefits that ADR programs bring to litigants and courts. Many of these benefits are very real; some, however, 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, while others do not. Nonetheless, a majority of participants in most programs have positive responses to their experience with ADR.
RSI Director of Research Jennifer Shack discussed her research on whether mediation was providing the benefits described above in Dispute Resolution Magazine Winter 2003. For this research, Jennifer analyzed the results of 62 studies that evaluated the effectiveness of more than 100 court mediation programs. Jennifer found that, "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."
Notably, the finding above does not say that significantly more parties were satisfied with mediation than with litigation. Whether a party was more satisfied with mediation or litigation varied from program to program. Similarly, the study revealed that there was no consistent finding that mediation lead 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. Since 2003, the list of studies has grown to 95, but the conclusions from Jennifer's original research have not changed. To read the summaries of all 95 studies, visit RSI's Mediation Efficacy Studies.
The question then becomes, what are individuals involved in court ADR programs supposed 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 Guide to Program Success 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. Finally, 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 Research and Evaluation.
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.
Mediation Efficacy Studies
Shack, Jennifer E., Resolution Systems Institute, 2017. The author is an RSI staff member.
Abstract: This is a comprehensive collection of evaluations of court-related mediation programs. It provides information on the methods and findings of more than 80 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.
Mediation in Courts Can Bring Gains, But Under What Conditions?
Shack, Jennifer E. Dispute Resolution Magazine, 9(2): 11-13, Winter 2003. The author is an RSI staff member.
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.