Research on Impact of ADR

Taken from Report to the Legislature on the Impact of Alternative Disute Resolution on the Massachusetts Trial Court. Prepared by the Supreme Judicial Court/Trial Court

Standing Committee on Dispute Resolution for the

Chief Justice for Administration and

Management of the Trial Court —

February 2, 1998.

Simple Justice: How Litigants Fare in the

Pittsburgh Court Arbitration Program, Institute

for Civil Justice (1983).

This study was conducted in the Court of Common Pleas in Pittsburgh,

Pennsylvania in 1983.

Findings: High satisfaction explained by finding that most disputants

found arbitration process relatively informal – 90% said they

would not have wanted it more formal.

Disputants found it easier to express themselves.

Pro se disputants found any

pronounced degree of formality intimidating and confusing.

70% appreciated increased privacy. (Adler, et al at 64)

Alfini, Summary Jury Trials in Florida: An Empirical Assessment,

Florida Dispute Resolution Center, Florida Bar Foundation,

1989.

This is a study of Florida’s 19th Judicial Circuit (State Court)

and the U.S. District Court for the Middle District of Florida.

The study involves an examination of 53 state cases volunteering

for summary jury trial (SJT; 43 SJTs held) and 104 federal court

cases assigned to SJT (51 SJTs held). The study focused on settlement

rates, influence on settlement, and participant satisfaction.

Findings: Regarding settlement rates, 77% of the SJTs held in

the state courts settled, while 59% of the SJTs held in the federal

court settled. In the federal court, 24% settled before the SJT

was held.

Regarding litigant costs, 57% of the attorneys in the federal

court cases reported spending more billable hours on the case

than they would if the case did not have an SJT, while 16% of

the attorneys in the state program reported spending more hours.

On the other hand, 78% of the attorneys in the state program reported

spending fewer billable hours on the SJT cases.*

Regarding participant satisfaction, a higher proportion of attorneys

participating in the state program were satisfied compared with

attorneys participating in the federal SJTs. The rates were 91%

compared to 51% respectively.

*These differences may relate to the average time spend in the

SJT in each court. The average was 4 hours in the state court

and 5 to 16 hours in the federal court. As already noted, there

was also a difference in settlement rates.

Barkai and Kassebaum, Hawaii’s Court-Annexed Arbitration

Program Evaluation, Judiciary of the State of Hawaii,

Hawaii’s Program of Conflict Resolution, University of Hawaii

at Manoa, 1991.

This is a study conducted in the First Circuit Court of Hawaii.

More than 1,200 tort cases were randomly assigned to either mandatory

arbitration (experimental group) or the control group. Issues

addressed in the study were the pace of litigation, appeal rate,

litigant costs, and participant satisfaction.

Findings: Regarding pace of litigation, the evaluators indicate

that cases sent to arbitration are resolved more quickly than

the control group. Regarding appeal rate, the findings in this

and other studies of arbitration programs place the appeal rate

in a 40% to 60% range. At the same time, the proportion of appealed

cases going to trial is low in all arbitration programs. The vast

majority of cases that participate in arbitration but fail to

settle at arbitration settle before trial. Regarding litigant

costs, the evaluators report that arbitration reduces the costs

to litigants if the case settles before arbitration. Regarding

participant satisfaction, evaluations of arbitration reveal consistently

that both attorneys and litigants view the arbitration process

and its outcomes as fair and satisfactory. At the same time, attorneys

view the arbitration process as satisfactory but also view the

trial adjudication process as satisfactory. Among litigants, winners

are typically happier. Corporate litigants tend to view arbitration

as fairer compared with individual litigants.

Brazil, Wayne D. A Close Look at Three Court-Sponsored ADR

Programs: Why They Exist, How They Operate, What They Deliver,

and Whether They Threaten Important Values, University

of Chicago Legal Forum 46, Chicago, Illinois, 1990.

The programs include judicial settlement conferences, early neutral

evaluation, and mandatory non-binding arbitration.

Settlement program offers two advantages not attainable in litigation

(jury trial):

(a) Parties can tell their story in a substantially less constricted

and intimidating environment than a public courtroom, where rules

of evidence and other rigidities of trial procedure can significantly

compromise freedom to speak;

(b) Settlement conference offers opportunity for direct, forthright,

dialectical feedback on their stories – a kind of feedback that

has no equivalent in a jury trial. Settlement conference permits

decision-makers to explore considerations and evaluate materials

that would not be admissible at bench trial. The range of solution

options is much greater. A wide range of products

can emerge from settlement conference. Process encourages less

combative, more positive, forward-looking and creative dynamic

between parties. Also exposes parties and counsel to substantially

less stress over a shorter period of time in a less public setting.

Parties may want to protect their privacy, avoid disclosure of

certain sensitive information.

Early Neutral Evaluation: Pleadings in federal court too often

simultaneously overstate and under-communicate, leaving parties

without clear understanding of content or dimensions of dispute.

Pleadings too often disguise real center of dispute. Parties feel

constrained to resort to expensive and slow formal procedures

of adjudicatory process, motion work, and discovery, to find out

what the center of their dispute is.

Docket reduction: never really a primary purpose of ENE Program

designed to deliver service to litigants. Provide litigants of

good faith with means of reducing cost and improving the rationality

of the process by which cases are resolved.

Promoting settlement: also not a primary objective. It seems unrealistic

to expect settlement at a conference that takes place early in

the pre-trial period, yet 25 of 67 (37%) where ENE sessions were

held settled either in ENE or a result of it.

Arbitration: Purpose – provide faster, less expensive procedural

means to resolve smaller, less complex cases and reduce docket

pressure.

Conclusion: Each of these programs offers significant benefits

to litigants without causing serious harm to competing interests.

In vast majority of cases, parties are appreciably better off

having gone through these programs. Each program is a genuinely

constructive force in the dispute resolution process.

Bridenback, M., The Citizen Dispute Settlement Process in

Florida: A Study of Five Programs, Supreme Court,

Office of the State Court Administrator, Tallahassee, Florida,

1979.

This study was conducted for the Florida Supreme Court in five

locations with mediation projects. A sample of 1320 cases was

included in the study.

Findings: Regarding case processing time, the average time from

case referral to disposition was 11 days; the median time was

8 days. For three of the neighborhood justice centers studied,

the time from a referral to a mediation hearing was 10 days. The

time to disposition without a mediation hearing was 11 days. For

cases that failed to achieve a resolution, the time was 14 days.

Case processing in traditional court took longer. Regarding case

activity in these five Florida programs, the researchers found

93% of the cases were scheduled for hearing, 59% proceeded to

hearing, 81% of the cases which had hearings resulted in agreements,

and 43.8% of the total cases received resulted in agreement. At

a follow-up 6 to 12 months later, the researchers found that resolution

of conflicts occurred in 52% of the cases having hearings. Seventy-five

percent of the cases had total or partial resolution. Regarding

the nature of agreements reached, the researchers found the following:

Disengagement of contracts between parties 26%

Alteration of parties behavior 24%

Payment or return of money or property 18%

Control of Animals 6%

Development of Cooperative relationship 5%

Repair or Service of property 4%

Domestic arrangement or child welfare 3%

Maintenance of property 3%

Attendance at designated program 2%

No obligation designated 2%

Other 8%

The researchers note: overall,

although only limited data is available, the available research

suggests that disputers are quite satisfied with the terms of

mediated agreements.

(p. 57).

Burton and McIver, University of Colorado Court-Annexed

Arbitration Evaluation Project, University of Colorado

Conflict Resolution Consortium, 1987-1988.

This study was conducted in four Colorado General Jurisdiction

trial courts. The evaluators used a quasi-experimental design

with which they compared a pre-arbitration sample of cases (800

cases) with a sample of cases assigned to arbitration (800 cases).

The issues addressed included appeal rate, cost of litigation,

and participant satisfaction.

Findings: Regarding pace of litigation, the evaluators found that

arbitration cases are resolved more quickly than cases not involved

with arbitration. Regarding appeal rate, the arbitration cases

in this study ranged from 40% to 60%, a finding consistent with

most other arbitration studies. Once appealed, the proportion

of cases going to trial is lower compared with the control group.

As is true in other jurisdictions, the vast majority of cases

that are appealed from the arbitration process settle before trial.

This study did not reveal any cost reductions to participants.

Regarding satisfaction, this study produces results similar to

other arbitration programs.

Both attorneys and litigants are satisfied with the process and

the outcome, although attorneys are virtually equally satisfied

with the trial adjudication process. As in other studies, winners

are more satisfied than losers, although both groups have high

satisfaction rates.

Clarke, Donnelly and Grove, Court Ordered Arbitration in

North Carolina: An Evaluation of Its Effects, Institute

of Government, University of North Carolina at Chapel Hill, 1989.

This study was conducted in three judicial districts in North

Carolina. The study design included randomly assigning all arbitration

eligible cases in a six month period to an arbitration group (experimental)

and a control group. The evaluators also compared these groups

to a pre-program group. Particular issues raised included pace

of litigation, appeal rate, type of disposition, recovery and

litigant satisfaction.

Findings: Regarding pace of litigation, the evaluators report

that arbitration cases are resolved more quickly compared with

control group cases. Regarding appeal rate, this study reported

the lowest appeal rate among arbitration program evaluations at

9%. Regarding litigant costs, this study is consistent with other

studies that do not show cost reductions. Regarding participant

satisfaction, the finding in this study is similar to other arbitration

studies where both attorneys and litigants view the arbitration

process and outcome as fair and satisfactory. As is true in most

other studies of arbitration programs, attorneys are also satisfied

with the trial adjudication process. Among litigants, winners

have higher ratings than losers, although both are satisfied.

Clarke, Stevens, Laura Donnelly, and Sara Grove, Mediation

of Interpersonal Disputes: An Evaluation of North Carolina’s Programs,

University of North Carolina, Chapel Hill, North Carolina, 1992.

This study assessed the impact of court-ordered arbitration for

all cases with damages up to $15,000. The researchers did not

attempt to quantify impact on overall workloads.

Findings: Reducing Court Dockets – during evaluation period, arbitration

program reduced trial rate by 2/3 in contested cases eligible

for program.

Program may increase costs – The quantitative analysis strongly

suggests that arbitration hearings and awards took the place of

out-of-court settlements considerably more often than they took

the place of trials.

Researchers conclude – because of substantial reduction in trial

rate and hastening of disposition – it

is reasonable to conclude that it saved court resources.

(Clarke, et al, at 78)

Satisfaction: this arbitration reveals high levels of satisfaction,

even among losers.

How well a process gets

to the facts found

to be the single most important component of satisfaction.

Clarke, Stevens, Earnest Valente, and Robyn Mace, North

Carolina Community Mediation Study, Institute of Government,

University of North Carolina, State Justice Institute, 1990-1991.

The study was conducted in Henderson, Iredell, and Durham Counties,

North Carolina. The research design was quasi-experimental. Three

program counties were matched with three non-program counties.

The focus of the study included the organization, types of cases

handled, mediator characteristics, referral and participation,

effect on court workload, satisfaction, compliance, recidivism,

and parties relationships.

Findings: Regarding utilization rates, the evaluators considered

the proportion of court cases that are appropriate for mediation

and are actually handled by the court. Of those cases actually

eligible for mediation, only 22% were actually sent to mediation.

The evaluators considered this a low utilization rate. The center

with the highest utilization rate (34%) also appears to have reduced

the number of court trials in its jurisdiction with the matched

county having no mediation program. The researchers conclude:

relatively high

utilization rates are essential for mediation programs to have

a substantial effect on the court’s workload.

(p.62) Regarding settlement, 59% of the cases that went to mediation

hearings and 92% of the hearings resulted in written agreements.

The researchers conclude, it

appears that mediation centers in virtually all cities handle

only a relatively small fraction of the court cases that would

be potentially amenable to mediation.

(p. 67).

Collins and Ford, Lake County Mandatory Court-Annexed Arbitration

Project, Center for Legal Studies, Center for Legal Studies,

Sangamon State University, and the Administrative Office of the

Illinois Courts, 1991.

This study was conducted in Lake County, Illinois using a quasi-experimental

design. A pre-arbitration sample of 487 cases was compared with

a sample of cases assigned to mandatory arbitration, totaling

663 cases. The study assessed pace of litigation, litigant costs,

and participant satisfaction.

Findings: Regarding pace of litigation, the evaluators report

that cases in the experimental group assigned to arbitration were

resolved more quickly than cases in the control group. The appeal

rate for court-annexed arbitration programs has been consistent

across jurisdictions with such programs. The range is from 40%

to 60%. Likewise, the proportion of cases going to trial after

arbitration is lower compared to the control group. Regarding

cost savings, this study is one in a group of arbitration studies

where no cost savings are demonstrated. Regarding satisfaction,

this study found both attorneys and litigants viewing the process

and outcome as fair and satisfactory. Like many other arbitration

studies, attorneys indicate satisfaction with the court adjudication

process as well as arbitration. Another recurring finding among

arbitration programs is that winners are more satisfied than losers,

although both are satisfied.

Collins and Ford, Winnebago County Court-Annexed Arbitration

Pilot Project Evaluation, Center for Legal Studies, Sangamon

State University, Administrative Office of the Illinois Courts,

1988.

This study was conducted in Winnebago County, Illinois where a

quasi-experimental design was used. The evaluators compared all

arbitration-eligible cases closed during the year before arbitration

was instituted (628 cases) with randomly selected cases assigned

to arbitration (420 cases). The issues focused on included pace

of litigation, litigant costs, and participant satisfaction.

Findings: Regarding pace of litigation, the evaluators found that

the mean for cases using arbitration was lower than the control

group while the median time for both groups was virtually the

same. The appeal rate for cases in the arbitration program is

in the 40% to 60% range as found in most arbitration program studies.

The proportion of appealed cases that go to trial is low here

as well as in most other arbitration studies and the vast majority

of appeals from arbitration settle before the trial. Regarding

litigant costs, the evaluators found in Winnebago County that

arbitration reduces cost if the case settles before arbitration

takes place.

Regarding satisfaction, this study produced findings similar to

most other arbitration studies. Both attorneys and litigants view

the process and outcome as fair and satisfactory. As is true in

other studies of arbitration programs, attorneys also view the

trial adjudication process as satisfactory.

Among litigants, winners are more satisfied than losers, another

finding consistent with other

studies.

Collins, Ford and Wassenberg, DuPage County Mandatory Court-Annexed

Arbitration Project, Center for Legal Studies and the

Administrative Office of the Illinois Courts, 1992.

This study was conducted in DuPage County Illinois using a quasi-experimental

design comparing a pre-arbitration sample comprised of 507 cases

with a sample of cases assigned to arbitration comprised of 606

cases. The study was designed to compare pace of litigation, litigant

costs, and participant satisfaction.

Findings: Regarding the pace of litigation, the evaluators report

that cases that are assigned arbitration are resolved more quickly

than the control group. Regarding litigant costs, this study falls

into the group of arbitration programs that do not show cost reductions.

As pointed out regarding other arbitration program studies, both

attorneys and litigants view the arbitration process and outcome

as fair and satisfactory. Similar to other studies, attorneys

are satisfied both with the arbitration process and with trial

adjudication. Among litigants, winners tend to be more satisfied

than losers.

Cook, Roehl and Sheppard, Neighborhood Justice Centers Field

Test: Final Evaluation Report, U.S. Government Printing

Office, Washington, D.C. 1980. (for Atlanta, Kansas City, L.A.).

This study was conducted in Atlanta, Kansas City, and Los Angeles.

The study design was primarily descriptive with some use of small

matched comparison groups. The focus of this study was on program

organization, types of cases handled, referral and participation,

effect on court workload, costs, participant, satisfaction, and

compliance.

Finding: Regarding the stability of an agreement over time, the

evaluators found that six months later, a majority had complied

with the agreement. Two-thirds felt the other had kept the agreement.

Eighty percent of the complainants and 83% of the defendants reported

they were satisfied with the terms of the agreement. Regarding

satisfaction with the overall experience, 88% of plaintiffs and

defendants indicated they were satisfied. In terms of control

group comparison, 73% of complainants and 79% of defendants who

participated in mediation were satisfied with the outcome compared

with 54% of complainants and 67% of defendants who had their cases

processed in court.

Crime and Justice Foundation, Expanding Juvenile Mediation

in Massachusetts Courts, 1992.

This study was conducted in the Haverhill District Court Juvenile

Session in 1991. A total of 84 juvenile delinquency cases were

filed there that year and 16 of these cases met the criteria for

mediation. The 16 cases that met the criteria were categorized

potential

cases; 18 cases that were referred to the mediation program were

categorized as actual

cases. The authors cite the benefits of mediation in juvenile

delinquency cases as follows: (a) assist juveniles to resolve

immediate problem peacefully; (b) teach juveniles communication

skills that will facilitate peaceful resolution of future conflicts;

(c) help juveniles understand and take responsibility for their

actions.

Findings: Regarding the number of court appearances, the potential

cases averaged 4.4 court appearances with a range of from 2 to

6. The actual cases averaged 2 court appearances. Regarding the

length of time to complete the process, the potential cases required

an average of 17 days to complete court processing with a range

of 31 to 259 days. For actual cases, the average length of time

from referral to completion of mediation was 18.6 days with a

range of 1 to 50 days. Regarding cost savings, the researchers

used a series of projections and formulas which are presented

in the text to estimate the cost of processing 3,660 cases using

mediation for a year to be $2,464,197 while the cost of processing

this same number of cases in court is estimated to be $5,691,995.

The cost savings derived from these projections for a year is

$3,227,798.

In addition to the description of the research and findings, the

authors offer a review of the literature, a proposed program design,

and a discussion of barriers to implementation.

Davis R., M. Tichane, and Grayson, Mediation and Arbitration

as Alternatives to Criminal Prosecution in Felony Arrest Cases:

An Evaluation of the Brooklyn Dispute Resolution Center (First

Year),Vera Institute of Justice, New York , 1980.

This study was conducted in Brooklyn, NY. The research design

included a random assignment of cases to experimental (160) and

control (114) groups. The focus of the study was on training,

organization, types of cases handled, referral and participation,

effect on court workload and costs, satisfaction, compliance,

recidivism, and parties’ relationships.

Findings: Regarding the nature of agreements, the evaluators studied

the provisions included in the mediation agreements, indicating

the types of obligations being incurred. Ninety-five percent involved

ending harassment. Thirty-six percent placed behavioral restrictions

on one or both parties. Thirty-five percent required parties to

use structured methods for handling future problems. Twenty-four

percent included limitations on interactions. This study dealt

with serious criminal offenders. Regarding satisfaction with outcomes,

the evaluators found that 73% of complainants and 79% of defendants

in the mediation sample indicated satisfaction with the outcome.

For the control group, 54% of complainants and 67% of defendants

indicated satisfaction with outcomes. Regarding fairness of mediator,

both complainants and defendants felt the mediator was fair. In

terms of whether the story

was heard by the

mediator, 90% of defendants felt their story was heard,

while 44% of defendants in the control group felt this way. For

complainants, 94% in the mediation group and 65% in the control

group felt their story was heard.

Depner, California Family Court Services Snapshot Study,

Judicial Council of California, 1991.

This study was conducted in 75 Branch Courts in California. The

research design involved the use of self-administered questionnaires

completed by clients and mediators in 1388 mediation sessions

in June 1991. Issues addressed included client characteristics,

outcomes, and user reactions.

Findings: The key finding in this study involves satisfaction/dissatisfaction.

Fifteen percent of the mediated clients felt the mediation session

was rushed. They felt pressured to go along and felt intimidated

to say what they really felt. Among those using mediation, 90%

felt the mediation process was clear, the mediator had good ideas,

and that parties had been listened to. More than 3/4 felt mediation

had helped them see more ways to work together. Two-thirds indicated

that mediation made them aware of community resources.

Durgee, Evaluation of a Court Mediation Program,

Judicial Council of California/Family Court Services, Superior

Court of Alameda County, California, 1988-1989.

This study was conducted in Alameda County, California. The study

design included analysis of intake forms and mediators reports

on 1694 cases. In addition, 209 mailed questionnaires were completed

by parents six months following mediation. The focus of the study

involved outcomes and reactions by men and women.

Findings: Regarding settlement rates, the evaluators found 76%

of the parties reaching full or partial agreement. Only 23% could

not agree on anything. Regarding user satisfaction, several themes

emerged from the study. These include appreciation of the opportunity

to expose a point of view without interruption; the professionalism,

control and neutrality displayed by mediators; the understandability

of the process and the outcomes generated in it; and the opportunity

to focus on children.

Emery, et al. The Charlottesville Mediation Project,

University of Virginia, 1982-1987.

This study was conducted in Charlottesville, Virginia. The study

design involved a random assignment of families with custody or

visitation disputes to mediation (N ‘ 35) versus adversarial settlement

(N ‘ 36). Telephone interviews were conducted and separate analyses

were performed for men and women concerning satisfaction and outcomes

as well as psychological impact of various dispute resolution

experiences. The study focused on client characteristics, outcomes

and reactions of men versus women, and psychological adjustment

of adults.

Findings: Regarding case processing time or pace of litigation,

the evaluators found that settlements are reached more quickly

in cases that use mediation. Regarding settlement rates, the evaluators

found 77% of the mediated cases reached full or partial agreement.

Only 23% could not agree on anything. Regarding court costs, despite

high agreement rates in divorce mediation programs, the programs

appear to have little impact on the court’s overall workload.

Regarding satisfaction, this study is among the majority of divorce

mediation studies that indicate mediation is consistently found

with user satisfaction in the 70% to 90% range. The satisfaction

applies to both process and outcomes generated.

Estee, Sharon L., Civil Mediation in the Western District

of Washington: A Brief Evaluation, Judicial Council for

the U.S. Courts for the 9th Circuit, Seattle, Washington, 1987.

This is an evaluation of a mediation program that was initiated

in 1979 in the U.S. District Court for the Western District of

Washington. Rule 39.1 allows the court to designate any civil

action for mediation. Attorneys must meet on a good faith effort

to negotiate settlement. If this settlement conference fails,

parties select a mediator. If attorneys can’t agree, the court

appoints a mediator. The mediation program was enacted initially

as an emergency measure to alleviate court congestion.

Cases processed: A total of 3496 civil cases were terminated in

1986. 1693 were cases considered potential for mediation (e.g.

contracts, real property, torts, civil rights, etc.), 1789 cases

were excluded from consideration (e.g. student loans, veterans

overpayments, prisoner petitions, bankruptcy, and social security).

There were 14 duplicate cases. Of the 1693, 449 cases (26.5%)

were assigned to mediation under Rule 39.1. The remaining 1244

cases (73.5%) were processed without mediation.

Findings: Cases assigned to mediation under Rule 39.1 were more

likely to be dismissed, settled, or withdrawn than were cases

not assigned to mediation. [74% of mediated vs. 63% of non-mediated

cases.] The assignment practice of judges affected results – there

was a predisposition for cases most likely to require trial to

be designated a Rule 39.1 case – thus, more Rule 39.1 cases went

to trial. Cases mediated took an average of 19 months versus cases

not mediated took an average of 12 months. The simplest, easiest

to resolve cases were not sent to mediation.

Perception of Judges: All judges perceived the mediation program

under Rule 39.1 to be very worthwhile, but they differed in their

use. Four different approaches by judges were identified: routine;

presumptive; selective; responsive. Routine ‘ all cases for which

a trial is requested are assigned automatically to mediation.

Presumptive ‘ based on presumption that any case should be assigned

to mediation barring unique qualities of case or strenuous and

reasonable objection by counsel. Selective ‘ pre-established set

of criteria is used to eliminate cases unsuited for mediation

or not in need of mediation. Responsive ‘ judge assigns a case

to mediation only if requested to do so by both sides. Rates of

assignment – routine ‘ 50%; responsive ‘ 12-14% (differences not

related to rates of disposition through settlement or trial. Torts

– assigned to mediation at higher rate than any other type of

suit.

Attorneys’ attitudes toward the mediation program were very favorable

– 70% felt program would be useful or very useful. 17% felt program

would be useful given certain conditions. Mediators – 89% felt

program should be kept the same or expanded.

Felstiner, W. and Williams, Mediation as an Alternative

to Criminal Prosecution. 2 Law and Human Behavior 223,

1978 (for Dorchester, Massachusetts).

This study was conducted in Dorchester, Massachusetts as a descriptive

study. No control or comparison group was used. The issues of

interest included

training, organization, types of cases handled, referral and participation,

effects on court workload and costs, satisfaction, compliance,

and recidivism.

Findings: Regarding program participation, the evaluators found

that 19% to 23% of those cases eligible for mediation actually

participated. Regarding cost savings, the evaluators estimated

that a mediated agreement saved from $114 to $165 per case (in

terms of reducing court and probation workloads). Regarding satisfaction,

the evaluators found that 78% of disputants whose cases were mediated

stated that they were glad that they had tried mediation. Seventy

percent stated that they had felt they had an opportunity to air

their complaints.

Fix, & Harter, The Urban Institute, Hard Cases, Vulnerable

People: An Analysis of Mediation Programs at the Multi-Door Courthouse

of the Superior Court of the District of Columbia, Washington,

D.C., June 1992.

This evaluation was conducted in the Multi-Door Courthouse of

the Superior Court of the District of Columbia. Citizens are provided

with the opportunity to make informed choices as to how they will

reconcile their differences. The particular doors

assessed in this evaluation are mediation programs for Domestic

Relations and Civil II cases (typical civil cases without special

complexity). In the evaluation, mediated cases were compared with

cases that were not mediated.

Findings: Impact on the court – mediation was powerful means of

settling cases short of trial. In Domestic Relations, percent

of parties in mediation who required decision of court to resolve

matter was less than half that for non-mediated cases. In Civil

II cases, 7% fewer cases had to go to trial when cases were mediated.

In both Domestic Relations and Civil II cases mediation was used

to resolve successfully emotionally difficult cases.

In Civil II cases, parties were more likely to abide by agreement

from mediation. Both Domestic Relations and Civil II – mediated

outcomes were less durable than non-mediated outcomes.

Between 5-9% of respondents in both Domestic Relations and Civil

II indicated their cases would not have been brought or would

have been dropped if there was no mediation. This suggests a substantial

increase in court’s caseload if mediation were used more broadly.

In summary, mediation did not appear to have a significant effect

on reducing the court’s caseload.

Impact on disputants: Mediated cases in Domestic Relations tended

to be quite bitter – a far higher percent of cases here involved

children. Parties believed issues were important to them. Parties

to mediated cases were unhappy with outcomes; were less satisfied

than unmediated cases. Non-mediating parties in Domestic Relations

were more satisfied with process. Mediation had highest satisfaction

level when parties were bitter, believed the issues to be important,

and did not view their bargaining power as weak.

In Civil II cases, parties were more satisfied with outcome and

process than non-mediated cases. If cases did not settle and went

to trial, parties were less satisfied mediating than not.

In both Domestic Relations and Civil II, those thought to be disenfranchised

appeared to be more satisfied with mediation. Defendants in Civil

II cases preferred litigation.

In Civil II cases, parties more likely to feel justice

was done and that

the full story

was told in mediation

(also less likely of accusing the other of acting in bad faith.)

Domestic Relations – more likely to think other side acted in

bad faith, less likely to think justice was done.

In both Domestic Relations and Civil II, reports indicated that

mediation was more expensive than not mediating.

In Civil II, mediation settled the case faster.

Goerdt, John A., Small Claims Mediation in Three Urban Courts,

National Center for State Courts (SJI), 1992.

This is a study of small claims mediation in Des Moines, Iowa,

Washington, D.C., and Portland, Oregon. The study included the

observation of mediation sessions in all three locations, approximately

40 cases in Washington (mandatory) and 65 cases each in Portland

and Des Moines (voluntary). The study looked at agreement rates,

court workload, court costs, and litigant satisfaction.

Findings: Regarding participation rates, Portland had 75% participation,

Des Moines had 65%, while participation was mandatory in Washington

D.C. Regarding court workload, in Washington and Des Moines the

program saved 500 to 750 hours of judge and courtroom staff time

annually. The cost of the coordinator of the program exceeds the

savings.

Regarding settlement rates, they were 85% in Des Moines, 54% in

Portland, and 47% in Washington.

Regarding satisfaction, the outcome satisfaction in Washington,

Portland and Des Moines was 77% in mediation compared with 64%

in adjudicated cases. In terms of procedural satisfaction, the

combined was 79% compared with 76% in adjudication.

Hanson, Roger, Florida’s Fourth District Court of Appeal

Appellate Mediation Project, National Center for State

Courts, 1991.

This is a study of Florida’s Fourth District Court of Appeal.

The design involved random assignment of 393 cases to settlement

conferences and 66 cases to a control group. The study’s focus

involved consideration of settlement rate, timing of settlement,

overall case processing time, and participant satisfaction.

Findings: Regarding case processing time, the mediated cases were

faster with a 110 day median versus 178 days for the control group.

In addition, the appeals of settlements were not much longer than

appeals of non-conferenced settlements. For the 75th percentile,

the medians were 187 days (mediated) versus 178 days (control).

Regarding settlement rates, the experimental group had a settlement

rate of 58% compared with the control group which had 42%. These

are first year data. The 2nd year settlement rates are 45% and

31% respectively.

Regarding satisfaction, 77.3% favored continuation of conference.

Questionnaires were sent to 415 attorneys; 197 attorneys responded.

More specifically, 40.1% stated the conference should be continued

without major modifications, 37.2% thought it should be continued

with major modifications, and 22.7% indicated it should be discontinued.

The two modifications suggested most frequently were to screen

cases before referral to the settlement conference and to make

participation in the program voluntary. Regarding outcome, the

satisfaction expressed does not depend on winning or losing.

Hanson, Roger and Susan Keilitz, Evaluation of the Effects

of Court-Annexed Arbitration on Pace, Cost, and Quality of Dispute

Resolution, National Center for State Courts, (SJI), 1988.

This study was conducted in Fulton County Superior Court in Georgia

and the Hillsborough County Superior Court in New Hampshire. A

quasi-experimental design was used comparing 539 arbitration cases

to 156 pre-arbitration cases and samples of contemporaneous cases

in comparable jurisdictions without arbitration. The evaluators

considered pace of litigation, indigent costs, appeal rates, trial

rates, and participant satisfaction.

Findings: Regarding pace of litigation, the evaluators report

that arbitration cases move slightly more quickly compared with

non-arbitration cases. Regarding appeal rate, the results of this

study are similar to most other arbitration program evaluations

falling in the range of 40% to 60%. Regarding litigant costs,

the evaluators found that arbitration did not result in cost reduction.

Regarding satisfaction, both attorneys and litigants view the

arbitration process and outcomes as fair and satisfactory. At

the same time, attorneys view trial adjudication satisfactory

as well.

Jacoubovitch and Moore, Summary Jury Trials in the Northern

District of Ohio: A Report to the Federal Judicial Center,

Federal Judicial Center, 1982.

This is a study conducted in the U.S. District Court for the Northern

District of Ohio. The study examined all cases (28) assigned to

SJT between February and October of 1980. The focus of the study

was on attorney views and settlement rates.

Findings: The settlement experience for these cases was as follows:

30% settled before the SJT; 41% settled after the SJT but had

no trial; 5% settled after requesting a trial, but had no trial.

Regarding satisfaction, this study included a small sample of

attorneys. The results indicate that attorneys for plaintiffs

were more satisfied with the SJT than were defendants’ attorneys.

Plaintiff attorneys reported they had a good opportunity to present

all of the evidence and legal arguments in favor of their case.

No plaintiff attorneys preferred that their case be heard by trial

rather than SJT. About half of the defense attorneys expressed

a preference for forgoing the SJT; most of them would try an SJT

again.

Judicial Council of California, Civil Action of Mediation

Act: Results of the Pilot Project, Judicial Council of

California, Administrative Office of the Courts, November, 1996.

This study was conducted in Los Angeles, San Diego, and El Dorado

County Superior Courts as well as San Diego, Sand Mateo, and Mono

Municipal Courts. The Civil Action Mediation Act created a five

year pilot project mandatory in Los Angeles County Court and optional

in other counties. The legislation required the Judicial Council

to conduct a survey to determine the number of cases resolved

by ADR under the statute and to estimate resulting savings realized

by the courts and parties. The legislature established benchmarks

for the pilot program. The programs would be considered successful

if they resulted in an estimated savings of at least $250,000

to the county and corresponding savings to the parties. Two forms

were used to collect data: a statement of agreement or non-agreement

form; and an ADR Information form.

Findings: Regarding savings to the court, the Judicial Council

estimates that in two years the estimated savings to the parties

has been more than five times the legislative benchmark set for

the five year period. The estimated savings result from attorney

fees, expert witness fees, and other costs related to the advancement

of court procedures (motions, hearings, conferences, trial). The

estimated savings to the county for two years was more than eleven

times the legislature’s target of $250,000. Regarding agreement,

the researchers found there was full agreement in 35% of the cases

with no agreement in 65% of the cases for all programs. For San

Diego Superior Court, which was responsible for 20% of all cases,

the agreement rate was 41%; in Los Angeles County Superior Court,

which was responsible for 79% of all cases, the agreement rate

was 32%. Regarding pace of litigation, the average time from filing

to mediation was 343 days. In San Diego, the time was 257 days;

in Los Angeles, the average time was 385 days. The researchers

also found that the number of days from filing to mediation was

longer for successful mediation (298 days) than for failed mediation

(262 days). Regarding satisfaction, 94% of all respondents stated

that they would use the same ADR procedure again. These findings

include 93% for mediation in the San Diego County Superior Court,

95% for mediation in the Los Angeles County Superior Court, and

94% for arbitration in the Los Angeles County Superior Court.

Kakalik, James S., Terence Dunworth, Laural A. Hill, Daniel McCaffrey,

Marian Oshiro, Nicholas M. Pace, Mary E. Vaiana, An Evaluation

of Mediation and Early Neutral Evaluation Under the Civil Justice

Reform Act, RAND, The Institute for Civil Justice, 1996.

This is an evaluation of the implementation, cost and effects

of mediation and neutral evaluation programs for civil cases in

six federal district courts. This study was supplemental to the

main assessment of case management principles as developed in

the Civil Justice Reform Act (CJRA) of 1990. The Districts studied

in the ADR supplemental study were California (Southern), New

York (Eastern), New York (Southern), Pennsylvania (Eastern), Oklahoma

(Western), and Texas (Southern).

The research design involved selecting approximately 150 cases

referred to the ADR programs in each of the six districts and

a comparison group of about 150 cases in each district. In most

districts, about 5% of cases filed were referred to ADR programs;

however, in CA (S) 50% of filed cases were referred to its mandatory

neutral evaluation program.

Findings: Time to disposition – no strong statistical evidence

that time to disposition is significantly affected by ADR programs.

Cost of litigation – no strong statistical evidence that lawyers’

work hours are significantly affected by ADR programs.

Costs per case referred to ADR – costs per case referred range

from $130 to $490. (Depends on volume of referrals)

Monetary outcomes – money appears more likely to change hands

when mediation or neutral evaluation is involved.

Settlement as result of ADR – likelihood that case will settle

just before or as a result of ADR ranges from 31% to 72%. Appears

to be correspondence between settlement and when ADR session is

held. Settlement is more likely if session is held later in the

life of the case.

Perceptions of fairness – no statistically significant differences

in lawyers’ perception of how fairly cases were managed.

Satisfaction – found no statistically significant effects for

mediation referral in terms of lawyer satisfaction with case management.

Findings regarding referrals to neutral evaluation are inconclusive.

Keilitz et al, Multi-State Assessment of Divorce Mediation

and Traditional Court Processing, National Center for

State Courts, SJI, 1988-1990.

This study was conducted in Florida, Nevada, New Mexico, and North

Carolina. The study design involved a comparison of court-based

mediation programs with courts without programs in four states.

In addition, interviews were conducted across sites with 191 mediating

and 84 litigating and 93 attorneys. Issues of concern included

outcomes, user reactions, time and cost factors, re-litigation,

and compliance.

Findings: Regarding case processing time, the evaluators found

the pace of litigation was faster for mediated cases in some courts

and slower for mediated cases in others. The evaluators point

out that many things affect case processing time which are unrelated

to the mediation program. Regarding settlement rates, the evaluators

found in all four jurisdictions that a substantial proportion

of cases settled after referral but prior to mediation and after

unsuccessful mediation. Regarding litigant costs savings, this

study found no savings in attorneys’ fees, making this one of

the few divorce mediation studies to find this result. Approximately

one third of the attorneys at each mediation site felt they had

spent less time on the case because it went to mediation. Their

specific report of hours spent on each case, however, indicated

no difference in billing for mediated and non-mediated cases.

Regarding court costs, at some of the test sites mediation increased

the number of post-divorce appearances. The evaluators note that

mediation may sensitize divorced couples to the need to make periodic

adjustments. The evaluators also point out that child custody

is contested in only 2-19% of all filings. Regarding participant

satisfaction, in all four states mediation was rated more favorably

on most measures of quality and fairness of process. The majority

of respondents in both settings felt the process was fair. Those

in mediation felt less pressure to agree to something, less intimidated,

less pressure to reach agreement. Regarding outcomes, mediation

participants were significantly more likely to feel they had control

over the decision, yet they were no more likely to feel they had

received everything.

Kelly, J., Divorce Mediation in California, report

prepared for the Fund for Research on Dispute Resolution, 1994.

This study was conducted in California. The study design involved

collecting data from more than 200 divorcing couples. The couples

were followed from the inception of the divorce proceeding to

two years following the divorce. Mediated divorces were compared

to divorces processed through traditional court procedures.

Findings: Regarding both the short-and long-term impact of divorce

mediation, the researchers found that positive short-term impacts

tend to dissipate over time. Regarding agreements, mediated agreements

contained more comprehensive provisions dealing with child support,

custody, and related matters. At six months before the divorce,

parents who mediated their divorce reported fewer conflicts compared

with the sample who had their divorce processed by traditional

court. At the time of the divorce, couples who mediated reported

that they were more satisfied with the process as well as the

outcome of the case compared with the sample using court procedures.

The mediated couples also were more in compliance with their agreements

and had a higher level of cooperation with former spouses compared

with those using the court. At two years following the divorce,

the mediation and court samples were not significantly different

in terms of levels of cooperation, amount of conflict, compliance

rates, and other related measures.

Kelly, The Divorce Mediation Project, Northern California

Mediation Center, San Francisco Foundation, Hewlett Foundation,

Fund for Research in Dispute Resolution, 1983-1990.

This study was conducted in Marin County, California. The study

design involved a longitudinal assessment of 105 couples who mediated

and 225 couples who used the adversarial system and had filed

for divorce in Marin County. Interviews were conducted at baseline,

then mailed questionnaires were used at four subsequent time points

over a three year period. The final assessment was held two years

after the divorce. The focus of the study included client characteristics,

outcomes, user reactions over time comparing men and women, psychological

adjustment, terms of agreements, cost factors, and special relationships.

Findings: Regarding settlement rates, the evaluators found in

their assessment of voluntary compliance with the mediation process

that 59% reached a written agreement. Another 15% resolved one

or more issues. Twenty-six percent were unable to reach agreement

on anything. Regarding litigant cost swings, the evaluators found

that the control group spent 134% more than the group that underwent

mediation. The average cost for the mediation group was $5,243,

while the average cost for the adversarial litigation group was

$12,234. Regarding satisfaction, throughout this longitudinal

study, users consistently rated mediation more favorably on an

extensive array of satisfaction measures. Only two of eighteen

measures did not have more favorable results for the mediation

group.

Kobbervig, Wayne, Mediation of Civil Cases in Hennepin County:

An Evaluation, Office of the State Court Administrator,

Minnesota Judicial Center, 1991.

This is an evaluation of a mediation pilot project conducted for

civil cases in Hennepin County, Minnesota. A total of 596 cases

were randomly assigned to the experimental group, providing mediation,

arbitration, and judicial process (standard litigation track),

while 590 cases were assigned to a control group, with only arbitration

and judicial process used. The evaluation was designed to study

the pace of litigation, trial rates, effect on judicial time,

litigant and attorney satisfaction, quality of justice, and cost.

Findings: Regarding pace of litigation or case processing time,

the median time to disposition was shorter for the experimental

group compared with the control group. This is attributed to arbitration

cases, since mediation and judicial process were identical. Regarding

court workload, there was no difference in the mean number of

court appearances for the two groups, but judicial activity was

required in a lower proportion of cases for the experimental group

(53% vs. 60%). Regarding trial rates, the experimental group had

higher rates than the control group (8.9 vs. 7.6). However, mediation

and arbitration cases had lower trial rates than judicial process

cases (7.3 vs. 10.4).

Regarding settlement rates, the experimental group had higher

rates (62% of cases referred to mediation settled vs. 46% of cases

that were not mediated settled). Regarding costs to litigants,

for those that settled in mediation, 43% believed they saved money.

For those that did not settle in mediation, 9% believed they saved

money. For those that settled in mediation, 56% of litigants thought

attorney time was reduced. For those that did not settle in mediation,

20% of litigants thought attorney time was reduced. Regarding

participant satisfaction, litigants in mediation rated the process

more favorably than did litigants in the judicial process. On

the other hand, attorneys rated the judicial process more favorably.

75% of both litigants and attorneys viewed mediation as fair.

Litigants felt mediation was more efficient; for attorneys the

efficiency rating for mediation and judicial process was the same.

Both efficiency and fairness ratings were higher for cases that

settled in mediation.

Kressel, et al, Essex County Custody Mediation Project,

Rutgers University, New Jersey Administrative Office of the Courts,

1986-1990.

This study was conducted in Essex County, New Jersey. The research

design involved conducting post-mediation telephone interviews,

auditing court files, and analyzing audio and video recordings

for 50 mediations in the pilot court project. Issues addressed

in the study included client characteristics, outcomes, user reactions,

and dynamics of the mediation process.

Findings: Regarding settlement rates, 67% of the parties reached

agreement in this custody mediation. In addition, notification

of the mediation to be held produced agreement in 17% of the cases.

Regarding satisfaction, more than one-half of the participants

in the mediation program felt that mediation had come too late.

They felt it should have been made available earlier. Among those

who reached agreement, 90% were very satisfied. Thirty-three percent

of those who failed to reach agreement were satisfied.

Lind, An Evaluation of Court-Annexed Arbitration in a United

States District Court, Institute for Civil Justice

(ICJ, RAND), 1990.

This study was conducted in the Middle District of North Carolina.

The study design included drawing samples for an experimental

and central group using 350 arbitration eligible cases. The issues

researched included access, cost, pace of litigation, participant

satisfaction, and appeal rate.

Findings: Regarding pace of litigation, the evaluator found that

non-arbitration cases moved faster through the system than those

randomly assigned to the arbitration experimental group. Regarding

appeal rate, the results of this study place it with other arbitration

programs with a

range of 40% to 60%. At the same time, the proportion of appealed

cases going to trial is low here as well as in most arbitration

programs. Regarding litigant costs the findings for this study

indicate being in the arbitration track reduces cost if the case

settles before the arbitration is held. Regarding satisfaction,

both attorneys and litigants view the arbitration process and

outcome as fair and satisfactory. At the same time, attorneys

view the trial adjudication process as satisfactory also. Among

litigants, winners are typically happier from the results than

losers.

Lowe, Robert and Linda Walker, Assessment of the MA Motor

Vehicle Tort Litigation Evaluation Program, National Center

for State Courts (SJI), 1992.

This is a study conducted in Suffolk County Superior Court (Boston).

The study design involved random assignment of 300 experimental

and 100 control group cases. The study was designed to assess

pace of litigation, cost to litigants and court caseload, and

participant satisfaction.

Findings: Regarding case processing time, the program reduced

the pace of litigation. The median time for the experimental group

was 314 days while the median time for the control group was 346

days, from filing to disposition. Regarding litigant costs, there

was no difference between the experimental and control groups

in attorney hours spent by attorneys.

Regarding participant satisfaction, the mean scores for experimental

group participants were consistently more favorable compared with

the control group. Using a five point scale, the experimental

group was 0.4 to 0.7 points higher. For one of the four satisfaction

measures, the groups had the same mean score.

Lowe and Keilitz, Middlesex Multi-Door Courthouse Evaluation

Project – Final Report, National Center for State Courts,

SJI, 1992.

This study was conducted in Cambridge, Massachusetts. The research

design was an experimental design with random selection of more

than 2500 civil cases from court dockets. Litigants and attorney

interviews were conducted and questionnaires administered. In

addition, interviews were conducted with staff, court personnel,

judges, and steering committee members. Case file analysis was

conducted and observations of case screening conferences and docket

reviews were conducted. Issues addressed by the evaluators included

the effectiveness of the program and screening and referral process,

cost effectiveness, satisfaction of users, and speed of processing.

Findings: Regarding cost savings, the evaluators found significant

savings for both litigants and attorneys. An average of 25% more

attorney hours were spent on litigated cases compared with ADR

cases. In addition, there were one-third more motions filed and

more documents processed per case for litigated cases. Regarding

case processing time, the evaluators found that there was less

time to disposition for Multi-Door cases. Regarding the use of

neutrals, the evaluators found that matching cases with neutrals

who have specific content area knowledge and experience results

in increased satisfaction and higher settlement rates. Regarding

satisfaction, both attorneys

and litigants had higher satisfaction ratings for the ADR process

compared with the central group using the standard court process.

MacCoun, et al. Evaluation of the New Jersey Automobile

Arbitration Program, Institute for Civil Justice (Rand

Corporation), 1988.

This is a study of eight general jurisdiction trial courts in

New Jersey. The research design was quasi-experimental, comparing

a random sample of over 1000 auto negligence cases filed either

before or after the inception of the mandatory arbitration program.

The study focused on pace of litigation, disposition patterns,

trial rate, costs, and participant satisfaction.

Findings: Regarding pace of litigation, cases that were not scheduled

for arbitration moved faster than those using arbitration. Regarding

appeal rate, this study produced results that fell in the same

range as most jurisdictions with arbitration programs, 40% to

60%. Regarding costs, the evaluators do not report cost reductions

for arbitration cases. Regarding satisfaction, the findings here

are similar to other arbitration programs. Both attorneys and

litigants view the arbitration process and the outcome as fair

and satisfactory. As is true of other studies, attorneys view

traditional adjudication as satisfactory also.

Maiman, Richard J., An Evaluation of Selected Mediation

Programs in the Massachusetts Trial Court, Standing Committee

on Dispute Resolution of the Massachusetts Supreme Judicial Court,

Trial Court, SJI, 1997.

See p. 36 -37 of text of report for summary of this evaluation.

McEwen, Craig and Richard Maiman, Small Claims Mediation

in Maine: An Empirical Assessment, National Science Foundation,

1981.

This study was conducted in three Maine counties which included

Augusta, Brunswick, and Portland. The study used a quasi-experimental

design, comparing 400 cases from 6 courts. Three of the six sites

had mediation programs in place, three did not. The issues pursued

in this study were: agreement rate, litigant satisfaction, and

compliance.

Findings: Regarding agreements and settlements, plaintiffs were

more likely to receive part of the claim in mediated cases than

in non-mediated cases; mediated cases were less l

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