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,
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
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
(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
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,
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%
The researchers note: “overall,
although only limited data is available, the available research
suggests that disputers are quite satisfied with the terms of
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
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
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
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:
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.“
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,
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
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
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
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
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
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
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
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
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
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
training, organization, types of cases handled, referral and participation,
effects on court workload and costs, satisfaction, compliance,
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
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
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
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
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
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
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,
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
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
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,
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
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
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,
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
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,
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
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