ADR examined--State study touts the value of mediation process

By Paul Janczewski Legal News A recent study examining the effectiveness of case evaluation and mediation in Michigan circuit courts found that both alternative dispute resolution (ADR) processes work, but mediation appears to be better than case evaluation in disposing of cases quicker and obtaining settlements. The study also found that mediation reduced costs for both the court and litigants, but both forms of ADR use should continue with a degree of flexibility in what method, or both, is used and when each should be injected in each specific case. Douglas A. Van Epps, director of the Office of Dispute Resolution for the Michigan Supreme Court State Court Administrative Office (SCAO), said the study was the result of a number of proposed court rule changes several years ago that involved how effective the case evaluation process was, the high rejection rates of case evaluation awards in personal injury claims, and the increased use of mediation in some courts, either with or without case evaluation. "So we added into the study the question of how effective is mediation, or how effective are the processes when used together," Van Epps said. "This study really looks at the effectiveness of just case evaluation, just mediation, and of both processes, as compared to doing neither." Arbitration, another ADR process, was not examined in this report because courts do not oversee it, Van Epps said. The purpose of ADR is to bring disputing parties together to find a solution to their problem outside of a trial by judge or jury, an option that saves time, money and aggravation and helps unclog court dockets. Studies have shown that only 2 percent of civil cases go to trial, while 98 percent are resolved by ADR processes, dismissal, or some other method. Van Epps said since it is appropriate to assume the vast majority of cases are going to settle at some point, "how can the court system help people provide the tools to settle at less cost, in less time, in a high quality manner?" He said the study may have confirmed what was already known, but took that assumption of ADR processes aiding that goal while "removing the obstacles from cases that really should be tried." Used separately or in combination, case evaluation and mediation are tools that aid the goal, but the study helped show that using one or the other earlier in the process helps parties reach agreement quicker. The study was conducted by Courtland Consulting of East Lansing at a cost of $76,440, and included online surveys of attorneys, meeting with focus groups, judges and court administrators, and examining a number of completed cases. The 107-page report detailed why and how the study was done and provided an executive summary of its 33 findings and eight recommendations. "The lawyers reported that although there may be more costs associated with mediation at the front end, that it actually saves money in the long run because if you resolve a case earlier in litigation, there are a lot of avoided expenditures later in terms of additional court events, case evaluation, settlement conferences, and trial," Van Epps said. If mediation is successfully done, future costs and appeals also were eliminated, he said. Although attorneys and judges opinions of certain aspects of the study differed, Van Epps said the link was both believe "mediation seems to be growing in value and case evaluation appears to be less helpful of a process than it was in its earlier days." The report contains a number of graphics, tables and diagrams in explaining and highlighting its recommendations and conclusions. Van Epps pointed to a few of the major findings in the study. * The case evaluation award amount was accepted in 22 percent of the cases examined in the study. * Where mediation was held, 47 percent were settled at the table, and 72 percent that went to mediation were disposed in some manner with later using case evaluation or going to trial. * Mediation was faster than case evaluation in disposing of cases because it was used sooner in the process. * Most judges and attorneys agreed that case evaluation is most effective when used after discovery. They also saw a value in using mediation during discovery. * Using mediation generally reduces costs to the court in resolving civil cases, while the impact of case evaluation is less clear. * Mediation initially is more expensive for litigants, but can ultimately reduce overall costs. * For tort claims, mediation significantly reduces the number of days a case is open when compared to cases that where no ADR process is used, but using case evaluation increases the length of time a case is open. * Mediation more often produces the outcomes attorneys seek than does case evaluation. * Circuit court judges gave higher ratings to mediation than case evaluation, but also supported continued use of case evaluation. Van Epps said the report recommended that circuit courts should be encouraged to make mediation available and not require case evaluation for cases where that ADR process is not required by statute. He added the report also encouraged courts to offer both mediation and case evaluation, but provide more flexibility in choosing the best method and the timing for using each by looking at each case separately. "We have heard from judges, ADR clerks, and lawyers across the state for the last five years or so that a there is a growing effort to try to get into mediation before case evaluation," Van Epps said. "So I think the study confirms what we have been hearing and observed in trial courts is that mediation disposes of significantly more cases than the case evaluation process," he said. "What this tells us from a court administrator perspective is that if you look at just the goal of disposing of cases, it may be more helpful to focus more on mediation and having it earlier than case evaluation." Van Epps said in the past, the use of case evaluation evolved and its use was expanded. "But that was many years ago, and what we're finding now is what was originally created as a quick docket reduction is not as effective as the mediation process these days," he said. He said the report "is not saying that case evaluation is completely without merit, but just that courts look more carefully at which process they want to order." He added that the idea of using flexibility in determining whether a case is right for ADR, and if so, which ADR process is most appropriate, and the optimal timing of the process was also underscored by the report. And that harkens back to a type of triaging each and every case to determine the best course of action. "I know that's challenging to do when you have 500, 600 cases on the docket, but it puts the emphasis on the lawyers to be more proactive in early identifying what type of ADR would be most appropriate, and not necessarily waiting until they get an order from the court," Van Epps said. He said some of that is already being seen as attorneys are looking to mediation before even filing a lawsuit in jurisdictions they know where mediation will be ordered once they do file. "The whole key is to get cases through the system quicker and cheaper," Van Epps said. "If you can resolve a case months earlier than the day before trial through mediation or case evaluation, that's a laudable goal." Lost in much of this talk is the toll lawsuits take on the parties. Van Epps believes ADR use is a "far more humane process" to resolve differences than trial. And mediation is being used more frequently in family division cases. "Rather than an abrasive adversarial process, if we can get parents to work collaboratively through mediation to resolve differences, we feel this is a far better outcome, not only for the parents, but particularly for the children," he said. Van Epps said this report will be shared with courts and those involved, and may spur pilot projects in some jurisdictions. "For attorneys who read this, I think it should give them confidence that going thru mediation is very valuable and many of their colleagues feel the same way," he said. "For mediators, there is a lot of interest here in demonstrating the positive outcomes they're achieving in working with the parties. And in Michigan, we believe we're headed down the right road with respect to the evolution of our use of ADR processes." Published: Thu, Feb 2, 2012

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