I have to admit that when there’s a new statutory mandate for courts to adopt a procedure that expedites resolution at low cost, I immediately think of it as a call for new ADR programs. I’m of course a bit biased, but I see ADR as a great way for courts to move cases more quickly and inexpensively through the judicial system. The Texas Supreme Court, though, saw it very differently and limited, rather than expanded, the use of ADR. (more…)
Posts Tagged ‘court programs’
Texas Supreme Court By-Passes ADR in Rules for Expedited Civil Litigation
Jennifer Shack, November 26th, 2012Delaware’s Chancery Court Arbitration Procedure Ruled Unconstitutional
Jennifer Shack, September 4th, 2012Last year, the Delaware Coalition for Open Government sued Delaware’s Chancery Court judges for operating a private arbitration system. Empowered by legislation passed in 2009, the judges were acting as arbitrators in business disputes, which, the Coalition argued, effectively made court proceedings confidential. According to the Coalition, this violated the presumptive right to access to judicial proceedings and documents, as guaranteed by the First Amendment of the Constitution.
Judge Mary McLaughlin from the Eastern District of Pennsylvania agrees. In a 26-page opinion, she rules that the arbitrations are sufficiently like a trial to be covered by the right to access presumption in the First Amendment. In coming to this conclusion, she argues that unlike arbitrators, who are private actors selected by the parties, judges are appointed to public service and therefore must act in the public interest.
For more analysis of the opinion, see Delaware Litigation and Steven Davidoff’s post in The New York Times.
New Report Shows US Federal Courts Embrace ADR
Just Court ADR, June 26th, 2012The US Courts’ news service posted last week about a preliminary report by Donna Stienstra at the Federal Judicial Center that shows the extent to which federal courts use ADR. Thirty years after a handful of courts first began experimenting with ADR, every federal district court now authorizes some form of ADR, and a third of courts authorize multiple ADR processes. During the year ending June 30, 2011, more than 28,000 cases were referred to ADR in 49 district courts (out of 94 total district courts; statistics weren’t available for the remaining courts). (more…)
What Makes a Mediator Effective? The Need for Empirical Evidence
Jennifer Shack, March 23rd, 2012As a mediator, I was trained that particular actions I took during mediation would bring the parties closer to settlement in a facilitative process. As a researcher, I know that no one has proven what I was told to do is effective. As a field, we’ve examined the outcomes of mediation, but we haven’t examined empirically the reasons for those outcomes. Now, Gary Weiner, a mediator and administrator for an appellate mediation program, has proposed that we do just that. He has organized a mini-conference on research for the upcoming ABA Section of Dispute Resolution Annual Conference in April that is designed to get participants discussing the possibilities for researching the effectiveness of mediator behaviors.
In preparation for the mini-conference, Weiner has written a very lucid and thought provoking paper that outlines why he believes such research is necessary. He recognizes that gauging whether something is effective should depend on what the goals are. He sees the outline of those goals for each program as the first step in determining whether 1) mediation is effective and 2) what behaviors lead to its being effective. He then notes that research into the effectiveness of particular behaviors has been reliant on mediator self-evaluation or participant feedback, both of which are unreliable methods for assessing what happened in mediation and the causal connection between behavior and outcome, starting with settlement. He’s interested in devising other ways in which mediator behaviors can be empirically tested. Does providing an evaluation of the case really lead to settlement, or is something else the mediator is doing the causal factor?
Research in other fields, most notably psychology, provides promising evidence that mediator behavior can be examined empirically to discover what is effective. I’m looking forward to discussing the possibilities at the conference. If you would like to weigh in before then, comment here or get in touch directly with Gary at Gary.Weiner@jud.ca.gov.
