Should it be used earlier in a case? Statewide survey studying ADR

By Paul Janczewski

Legal News

Alternative dispute resolution may be a modern-day term, but the concept of it -- bringing disputing parties together to find a solution to their problem -- has been around for centuries.

''I think there's been a form of mediation around since the dawn of man,'' said Douglas Van Epps, the director of the Office of Dispute Resolution for the Michigan Supreme Court's State Court Administrative Office.

Now, in the legal forum, ADR has evolved into an umbrella term ''of ways parties can resolve differences outside of a trial by judge or jury,'' said State Bar President Anthony Jenkins.

Both experts agree that while there are many forms of ADR, the main three are case evaluation, arbitration, and mediation.

And they agree that only 2 percent of civil cases actually go to trial; 98 percent of matters are settled through negotiations, or dismissed through some other legal form.

Questions have arisen recently if ADR really is saving time and money in some civil matters. Van Epps said the SCAO is conducting a statewide survey of lawyers, judges, various ADR processes, the timing of its introduction into cases, and the outcomes of each process.

Informal discussions with some court officials reveal that they believe mediation should occur earlier in the life cycle of a lawsuit or that judicial involvement in a case should come sooner.

''I'm hoping that our study will provide us with a lot more in-depth information about which cases are being ordered to which process at what time, so we can come up with best uses and practices,'' Van Epps said.

''Our study will try to bring some science behind some of these considerations.''

He said the survey will be completed by late summer or early fall and will provide a map of how effective some ADR processes really are.

Jenkins said the study should give all involved a sense of what the trends are, what's good and bad about each method, and what can be done to enhance each one.

''In a way, we're all waiting to see what comes out of that, and how it impacts the practice in the whole ADR sector,'' he said.

Van Epps likened the ADR process to a medical problem where people go to a hospital for treatment. In the past, every civil case was treated as if it would go to trial, even though only two percent reached that stage.

But ER cases undergo triage.

''I think we're moving towards the direction of more triaging in the court system, given the limited resources, the consolidation of our state court system, the reduction in the number of judges and court resources,'' he said.

''It will become more important, at the front end, to identify what process would really best help the litigants in this case get to what will most likely be a settlement. Or if what they really need is a trial, how do we get them there more expeditiously.''

Jenkins agreed.

''We (at the State Bar) see ADR growing as a vehicle to resolve disputes and providing alternatives that will allow parties to more quickly and cost effectively get matters resolved,'' he said.

Van Epps said future ADR processes would allow parties to brainstorm and be creative in settling problems in non-traditional ways.

But he also said there might be other factors weighing in on the benefits of some ADR processes.

As soon as a lawsuit is filed, the parties actually lose some control. Party satisfaction diminishes over time within the legal system, and often everyone feels like they've lost because no one got what they really wanted and they've spent a lot of time and money to get there.

Van Epps is not an opponent of cases going to trial.

''For me, it's quite the reverse,'' he said.

''I'm concerned that we may be unable to get the cases to trial that really deserve to go there. An advantage is the earlier ADR may pave the way for more important cases to get to trial.''

Published: Mon, Jul 25, 2011

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