Donna Shestowsky at UC Davis School of Law has been researching the relationship between litigants and court ADR programs for quite a while. In the past, she has reported that litigants prefer mediation and has identified what they want from a dispute resolution process. Now, she’s reporting that few litigants know that the courts in which their cases have been filed offer mediation or arbitration (“When Ignorance Is Not Bliss: An Empirical Study of Litigants’ Awareness of Court-Sponsored Alternative Dispute Resolution Programs,” Harvard Negotiation Law Review, Spring 2017). Shestowsky found that only 24% of litigants surveyed knew that their court offered mediation, and only 27% knew that arbitration was a possibility.
For this particular aspect of Shestowsky’s study, 336 litigants to civil cases with a median amount in controversy of $35,000 were interviewed within three weeks of the closure of their case. The litigants were drawn from three jurisdictions (in California, Oregon and Utah) that had both mediation and arbitration programs for which all the surveyed litigants were eligible. Each of the three jurisdictions had a rule requiring attorneys to discuss ADR options with their clients.
Despite the rules requiring attorneys to discuss mediation and arbitration with their clients, there was no significant difference in responses between represented and unrepresented litigants. Further, only 31% of litigants said that they or their attorney contemplated mediation, while only 24% had contemplated arbitration. The only factor that increased the likelihood of litigants knowing whether their court offered ADR was whether they were repeat players. Repeat players were 2.53 times more likely to know whether the court had ADR programs.
The results are surprising. Not only do the three courts have requirements for discussing ADR, but the Utah and Oregon courts made ADR the default, requiring the parties to take action to avoid mediation and arbitration. Shestowsky concludes that “discussions about procedure did not take place at all, were not flagged as important, or were not conducted in an in-depth or personalized enough way to trigger deep processing,” meaning that they didn’t have enough of a discussion for the information about ADR to stick in the litigants’ memory.
These findings are not just important to those who advocate for ADR, but have a real impact on litigants and the courts. If litigants don’t know the options available to them, or haven’t had them fully explained, they aren’t giving informed consent to participate in the chosen process. On the other side of the coin, it appears that courts are allocating funds to processes that aren’t being used fully because litigants don’t know about them. Additionally, a key finding of the study is that those litigants who knew that the court offered mediation had a higher opinion of the court than those who did not. This suggests that courts can benefit by having litigants be better-educated about their ADR options, even if they don’t elect to use them.
Shestowsky’s research gives us in the ADR field useful information about how little litigant awareness there is about ADR options even when court rules are designed to ensure that litigants can make informed decisions about the process to use. She points to courts whose processes force more litigant acknowledgement of having been educated about ADR as possible models for increasing awareness. The next step should be to test these different processes for educating litigants to determine which is most effective, particularly for those litigants who are less sophisticated.