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*/ This paper, under the title "ADR in United States Courts: 1997," was prepared for presentation at the 27th Annual Workshop on Commercial & Consumer Law convened at the University of British Columbia, Vancouver, B.C., October 17 & 18, 1997.

**/ Attorney at law, full-time arbitrator and mediator, author, educator and consultant on ADR issues, San Francisco, CA, USA 1985 to date. BA Yale University 1950; JD magna cum laude Northwestern University School of Law 1964. Former Professor of Law, Northwestern University School of Law, 1965-1981. Charter Appointee, American Arbitration Association Large Complex Case Program Panel & California Panel of Full-Time Neutrals.
 

I. INTRODUCTION

     This is indeed a strange time in the world in which to attempt an evaluation of alternative dispute resolution, or ADR, activity in and near the courts of the United States. On the one hand, every shred of anecdotal and other1/ evidence suggests that there were more court-related ADR programs yesterday than there have ever been before; that there are more today than there were yesterday; and that another all-time record will be set again tomorrow. On the other hand, a piece of research released in late 1996 that appears at a superficial first glance to cast doubt on some ADR programs in some courts has attained perhaps the highest news profile of any event or development in the entire ADR field in many years. News coverage of this event2/ and commentary on it--a great deal of it directed to trying to correct the misimpression created by a superficial glance at the news headlines3/--seem together to have cast a pall of doubt not only over the programs subject to the research but by ill-reasoned extension over much or all of the rest of alternative dispute resolution in the United States, whether court-related or otherwise.

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Footnotes:

1./ See, e.g., E. PLAPINGER AND D. STIENSTRA, ADR AND SETTLEMENT IN THE FEDERAL DISTRICT COURTS (Federal Judicial Ctr. & CPR Institute for Dispute Resolution 1996); R. MacCoun, E. Lind & T. Tyler, Alternative Dispute Resolution in Trial and Appellate Courts (RAND Reprints 1992), including a comprehensive bibliography to that date. An early landmark in the literature is THE CPR LEGAL PROGRAM, ADR AND THE COURTS (E. Fine & E. Plapinger ed. 1987). A more recent bibliography is found under a similar title in L.BROWN, ADR IN THE COURTS: A BIBLIOGRAPHY ON COURT-ANNEXED ARBITRATION AND MEDIATION IN THE U.S. (Am. Arbitration Ass'n 1995). The substantial research on court-annexed alternative dispute resolution, particularly including court-annexed arbitration, conducted and reported by RAND ICJ is summarized and abstracted in RAND ICJ, ICJ BIBLIOGRAPHY (1996). See also STATE BAR OF CALIFORNIA OFFICE OF RESEARCH, GUIDE TO COURT-RELATED ADR (1993); R.NIEMIC, MEDIATION & CONFERENCE PROGRAMS IN THE FEDERAL COURTS OF APPEAL (Fed. Judicial Ctr. 1997); D.STIENSTRA & T.WILLGING, ALTERNATIVES TO LITIGATION: DO THEY HAVE A PLACE IN THE FEDERAL DISTRICT COURTS?, (Fed. Judicial Ctr. 1995); Alternative Dispute Resolution Issue, 7 FJC DIRECTIONS (1994); J.KAKALIK, T.DUNWORTH, L.HILL, D.MCCAFFREY, M.OSHIRO, N.PACE & M.VAIANA, AN EVALUATION OF MEDIATION AND EARLY NEUTRAL EVALUATION UNDER THE CIVIL JUSTICE REFORM ACT xxx and 9-13 (1996), cited in note 6 infra. Apart from its brief review of prior research on court-related ADR, Id. at 9-13, the latter study, the subject of this paper passim, scarcely touches upon court-annexed arbitration because, "Both the Judicial Conference and RAND felt that our efforts would be better spent by focusing on mediation and early neutral evaluation programs." Id. at 4; see also note 7. See also E.Plapinger, Twilight of CJRA Means Unsure Future for ADR, Nat'l L.J., Sep. 22, 1997, at p.B25, col. 1, col.2: "Mediation has eclipsed arbitration as the primary ADR process in the federal district courts. Nearly half of the 94 district courts now offer--and many permit judges to require--mediation, in contrast to only a handful seven years ago."

2./ See, e.g., D.Van Duch, Case Management Reform Ineffective, Nat'l L.J., Feb. 3, 1997, at A6, col. 1 (subhead: "ADR, other reform-act fixes don't save time or money, CJRA study says"); D.Van Duch & M.Coyle, Start over on Case Management Reform? Nat'l L.J., Feb. 10, 1997, at A6, col.1. (subhead: "Stunned reaction to CJRA study includes call for total rethinking.").

3./ See, e.g., 3 DISPUTE RESOLUTION MAGAZINE 2-19 (ABA Section of Dispute Resolution Summer 1997)(ten articles, all by respected ADR experts, responding to various aspects and consequences of the RAND Report); FACTS & TRENDS 1-30 (RAND ICJ "Special Issue," Apr. 1997)(12 articles responding to the RAND Report by RAND researchers, academics, judges, lawyers and foundation executives); Erickson, The Rand Report: Concerns and Future Choices, AAA ADR Currents, Summer 1997, at 6, col.1; M.Yablonski, RAND Study Challenges ADR Findings, ABA Litigation News, July 1997, at 1, col. 4; E.Plapinger, Rand Study of Civil Justice Reform Act Sparks Debate, Nat'l L.J., Mar. 24, 1997, at B18, col. 2; R.Bossert, Case Management Gets Judicial Nod, Nat'l L.J., Jun. 9, 1997, at A11, col.1; E.Plapinger, Twilight of CJRA Means Unsure Future for ADR, Nat'l L.J., Sep. 22, 1997, at B25, col.1.

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II. THE RAND REPORT: MEDIATION AND ENE
     IN THE  "PILOT DISTRICTS"

     The research, of course, is the report prepared by RAND's Institute for Civil Justice, under cntract to the Judicial Conference of the United States. The full report, running to four substantial volumes,4/ was mandated by the Civil Justice Reform Act of 1990, or CJRA.5/ That enactment sought to induce, if not to compel, a widescale program of self-assessment by the federal district (i.e. trial) courts of their policies for managing their civil dockets. In the aspects most relevant here, the CJRA further promoted experimentation with a variety of "case management principles." Ten of the 94 federal district courts were to be designated6/ as "pilot"districts in which these principles were to be tested; further, the legislation mandated independent evaluation of the results in these pilot districts. The resulting "RAND Report,"7/ as it has become known in ADR and judicial administration circles, provides that independent evaluation.

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Footnotes:

4./ J.KAKALIK, T.DUNWORTH, L.HILL, D.MCCAFFREY, M.OSHIRO, N.PACE & M.VAIANA, JUST, SPEEDY AND INEXPENSIVE? AN EVALUATION OF JUDICIAL CASE MANAGEMENT UNDER THE CIVIL JUSTICE REFORM ACT (Vol. I, 51 pp.); IMPLEMENTATION OF THE CIVIL JUSTICE REFORM ACT IN PILOT AND COMPARISON DISTRICTS (Vol. II, 283 pp.); AN EVALUATION OF JUDICIAL CASE MANAGEMENT UNDER THE CIVIL JUSTICE REFORM ACT (Vol. III, 386 pp.); and AN EVALUATION OF MEDIATION AND EARLY NEUTRAL EVALUATION UNDER THE CIVIL JUSTICE REFORM ACT (Vol. IV, 492 pp.); (RAND ICJ 1996).

5./ Pub.L. 101-650, as amended Pub.L. 104-33, Oct. 3, 1995, 109 Stat. 292.

6./ The pilot districts, those of California (Southern), Delaware, Georgia (Northern), New York (Southern) Oklahoma (Western), Pennsylvania (Eastern), Tennessee (Western), Texas (Southern), Utah and Wisconsin (Eastern), were selected by the Committee on Court Administration and Case Management of the Judicial Conference of the United States. The ten comparison districts, selected by
the Judicial Conference in consultation with RAND, were Arizona, California (Central), Florida (Northern), Illinois (Northern), Indiana (Northern), Kentucky (Eastern), Kentucky (Western), Maryland, New York (Eastern) and Pennsylvania (Middle), J.KAKALIK, T.DUNWORTH, L.HILL, D.MCCAFFREY, M.OSHIRO, N.PACE & M.VAIANA, AN EVALUATION OF MEDIATION AND EARLY NEUTRAL EVALUATION UNDER THE CIVIL JUSTICE REFORM ACT 1 (1996)[hereinafter EVALUATION OF MEDIATION & ENE].

7./ Unless otherwise noted, the term "RAND Report" as used in this paper, refers to the four-volume study identified in note 4, or to an identified sub-part thereof.

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     RAND, a not-for-profit institution active since 1946 in researching issues of public policy, was a natural candidate for this role. Through its Institute for Civil Justice ("ICJ"), it has established an enviable track record based on its wide-ranging research on the efficacy of many aspects of the civil justice system in the United States, both in state and in federal courts; and its reputation for thorough, careful and even-handed study and reporting on such contentious questions as the awarding of punitive damages8/ and the economics of product liability law9/ puts it well above reproach. Nor is there the slightest reason to fault RAND's conduct and reporting of the CJRA evaluative studies in the RAND Report. On the contrary, every evidence is of just the standard of care and balance that is the RAND hallmark.

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Footnotes:

8./ See, e.g, E. Moller, Trends in Punitive Damages: Preliminary Data from California (RAND ICJ 1995).

9./ See, e.g, S. Garber, Product Liability and the Economics of Pharmaceuticals and Medical Devices (RAND ICJ 1993).

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     What are wide open to question, rather, are the most fundamental aspects of the research design--that is to say, the very "experiments" mandated by the CJRA and assigned to RAND for evaluation. Research design is a difficult enough challenge for academics, divided only by such differences as theory and discipline. The CJRA and its research mandates, of course, were the product of the legislative process--a process always political but at that time subject, as well, not only to the tensions inevitable in House and Senate judiciary committees predominately or exclusively under Democratic control for more than 40 years past but responsible for living for ten years past under--and in the Senate for advising and consenting to judicial nominees submitted exclusively by--two Republican Presidents, but also to something of a struggle between legislators baited by charges of excessive cost and delay in the courts, on the one hand, and the judges of those courts on the other.10/

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Footnotes:

10./ See, e.g., D.Van Duch, Case Management Reform Ineffective, Nat'l L.J., Feb. 3, 1997, at A6, col. 1, col. 3: "[S]ome practitioners go so far as to say federal judges half-heartedly implemented the CJRA reforms because they are miffed at Congress' pre-emption of their traditional control over procedure. . . ."

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     The legislative history and full scope of the resulting legislative mandate for research are well beyond the scope of this paper. What cannot be ignored, however, in evaluating the RAND Report, are the most obvious and difficult of the legislative restraints that jacketed the research. RAND's ICJ is candid and explicit in recognizing these:

[T]he [CJRA] itself . . . was loosely worded to allow districts to experiment with different forms of case management. . . . [T]hat wording also allowed many districts and judges to interpret their prior practices as complying with the Act.

[T]he pilot program incorporated in the Act was viewed by many as an attempt by Congress to mandate judges' behavior; this view gained credence from the fact that the driving force behind the legislation was a task force that did not include any active judges. . . . Some judges and others viewed the congressional mandates as curtailing judicial independence accorded judges by the Constitution. Others viewed the Act's procedural innovations as placing undue emphasis on speed and efficiency at the possible expense of justice.

Finally, the Act lacked effective mechanisms for ensuring that the policies adopted in district plans were carried out.11/

11./ Just, Speedy and Inexpensive? An Evaluation of Judicial Case Management under the CJRA, RAND ICJ RESEARCH BRIEF 3 (1996)[hereinafter RESEARCH BRIEF] .

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     These comments are addressed to the overall problems growing out of CJRA and to ICJ's analysis of the "case management principles" set forth in it. There are far greater, and far more specific, problems relating to that part of the RAND report that has commanded almost all of the wider attention in the judicial and legal professions, if not the public at large: the RAND Report's assessment of alternative dispute resolution as a part of the CJRA mandate. There, RAND concluded:

The study found that, once litigation had begun, referral to ADR was not a panacea, nor was it detrimental. Neither time nor costs nor lawyer views of satisfaction or fairness changed significantly as a result of referral to any of these programs. . . .

The only statistically significant ADR finding pertains to outcomes: Cases referred to ADR were more likely to have a monetary outcome. ADR is a process intended to facilitate settlement, and in a settlement, money is likely to change hands. In addition, fewer cases are dropped without payment or decided by a judge on the basis of motions.12/

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Footnotes:

12./ Id. at 5.

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     Virtually all of the publicity and professional attention growing out of the RAND Report has focussed upon the findings in the fourth of the four volumes of the study, that dealing with mediation and early neutral evaluation under the CJRA, the RAND Mediation & ENE Evaluation; and these are the findings that support the conclusion that:

[ICJ] found no strong statistical evidence that the mediation or neutral evaluation programs, as instituted in the six districts studied, significantly affected time to disposition, litigation costs, or attorney views of fairness or satisfaction with case management. The only significant outcome is that these ADR programs appear to increase the likelihood of a monetary settlement.13/

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Footnotes:

13./ EVALUATION OF MEDIATION & ENE, supra note 6, at 53. See note 6, supra.

14./ EVALUATION OF MEDIATION & ENE, supra note 6, at 1-2, citing 28 U.S.C. Sec. 473(a).

15./ Id. at 2, citing 28 U.S.C. Sec. 473(b).

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     As the authors of the RAND Report note:

ADR programs such as mediation and early neutral evaluation can be designed in many different ways. For example, referral of cases may be mandatory or voluntary, or judicial discretion may be used to decide which cases are referred. Parties may be able to opt out after referral, or not. The cases eligible for referral to ADR vary, based on the type of case, the amount at stake, or other factors. The ADR provider may be a judicial officer, or a neutral lawyer, or someone trained in ADR techniques who is not a lawyer. The ADR provider may be paid or work pro bono. ADR training may or may not be required. The ADR session may be early or later in the life of a case. The session may be only an hour long or may consume several hours over more than one day.16/

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Footnotes:

16./ Id. at 2-3.

17./ Id. at xxviii.

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     Six districts? Six pilot districts? Well, not quite. The RAND researchers, in attempting any evaluation of ADR techniques, were obliged somehow to address the substantial difficulty arising out of the wide arenas open to discretion and interpretation that, as noted, were built into the CJRA plan. The sample of six districts studied in the RAND Mediation & ENE Evaluation were drawn not just from the pilot districts, but from all of the "six CJRA pilot and comparison federal district courts that had mediation or neutral evaluation programs in 1992-93 involving a sufficient number of cases to permit detailed evaluation. The districts studied were California (Southern), New York (Eastern)[a comparison district],18/ New York (Southern), Pennsylvania (Eastern), Oklahoma (Western) and Texas (Southern)."19/ In other words, in order to find, among the great variety of programs that had come out of the loose-jointed process set out by CJRA, as many as six districts having enough cases in the kinds of ADR programs of greatest interest20/ to study, RAND was obliged to add the non-pilot Eastern District of New York to the five pilot districts in that category. Thus, the RAND Mediation & ENE Evaluation, under the heading, "Focus and Scope of this Study," says, "This report describes the results of an analysis designed to supplement the ADR component of the main CJRA evaluation."21/

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Footnotes:

18./ See note 6 supra.

19./ Id. at 3 (emphasis added).

20./ See note 1 supra.

21./ EVALUATION OF MEDIATION & ENE, supra note 6, at 3 (emphasis in original). See also note 1 supra.

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     This was a perfectly rational decision for utilizing research conducted in a universe defined by the CJRA mandates, particularly for the purpose of learning more about an "ADR case management technique" of widespread interest. Its importance lies not in its substance but rather in the evidence it provides of the struggle necessary in the effort to make sense of the statutorily mandated research plan. Nor could that decision improve upon the built-in attributes of the CJRA-mandated universe. Principal among these was that "the general scope" of RAND's "CJRA pilot program evaluation" was restricted to the 20 pilot and comparison districts; and of these 20 districts, "[T]he 14 . . . districts not selected . . . were excluded because their mediation or early neutral evaluation programs in 1992-93 did not involve a sufficient number of cases to permit detailed evaluation."22/ We are not told in the RAND Mediation & ENE Evaluation why the sample was inadequate in this respect, but what we are told makes it possible to identify many of the problems: wide discretion in designing district plans, no requirement that the plans be followed and no obligation to include any particular common elements.

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Footnotes:

22./ EVALUATION OF MEDIATION & ENE, supra note 6, at 1.

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     Timing is not highlighted specifically as a problem of research design in the RAND Mediation & ENE Evaluation, but it obviously contributed greatly to the questions that the evaluation leaves behind it: the CJRA required that each federal district court to "conduct a self-study with the aid of an advisory group and to develop a plan for civil case management to reduce costs and delay;"23/ obviously the role of that process in the pilot districts was critical. Of the interplay between these courts and their advisory bodies, RAND says, in its Research Brief on the RAND Report:

The CJRA called for creation of advisory groups in each district. The groups' mandate was to assess the condition of the civil dockets, identify the principal causes of delay and excess cost, and make recommendations, which the court was free to accept or reject, for dealing with these problems. . . . .

In general, the advisory groups approached their mission with dedication and conscientiousness, and most courts adopted their advisory group's recommendations.

All of the pilot and comparison districts created plans that complied with the loosely worded statutory language of the Act. But the amount of real change varied widely. Some districts did not plan major changes, and, in some districts, planned changes were not fully implemented. Thus, if the spirit of CJRA was experimentation and change, then the districts met that spirit to varying degrees.24/

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Footnotes:

23./ Id.

24./ RESEARCH BRIEF, supra note 11, at 2.

25./ EVALUATION OF MEDIATION & ENE, supra note 6, at 1. The "other 84 districts"--by elimination including the comparison districts--"could implement their plans any time before December 1993."

26./ Id. at 3.

27./ Id. at xxviii.

28./ On the timing issue, the Center for Public resources commented, in its Statement of Concerns Regarding the RAND ADR Study of March 14, 1997 (hereinafter "CPR Statement"):

The [RAND] researchers . . . emphasize that institutional change takes time and that "the evolution and fine-tuning of these ADR programs is an ongoing process. . . .

[T]he programs studied were new and examined early, before or as program refinements were underway. In several of the courts studied, substantial revisions to the ADR programs were made after the Rand data were collected.

The Statement is signed by 32 well-known lawyers. judges, academics and business executives, identified collectively as "CPR Judicial Project Advisory Council and Other ADR Experts." See text at note 32, infra.

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     Also, it is necessary to be specific about the ADR programs actually studied. Four of the selected districts "tested" one form or another of mediation, and only two tested early neutral evaluation. Although the RAND Mediation & ENE Evaluation attempts various summaries of these plans,29/ the most basic descriptions of the differences between the ADR program adopted in each district (and, where applicable, other ADR programs already in place in each district) requires many pages of text.30/ To call these programs apples and oranges no doubt greatly undervalues them; but certainly they can be referred to as, for example, diamonds, topazes and moonstones.

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Footnotes:

29. See, e.g., id.at xxviii; id. at 30.

30./ Southern District of New York: preexisting (since 1984) pilot program in cooperation with the American Arbitration Association, id. at 57; CJRA-prompted mandatory mediation program (including changes made in the program after RAND had selected its sample), id. at 57-59. Eastern District of Pennsylvania: preexisting mandatory mediation and mandatory arbitration programs coupled with additional judicial discretion, id. at 91-92; CJRA-prompted "mandatory mediation experiment for certain types of cases," id. at 92-94. Western District of Oklahoma: preexisting ADR programs (including voluntary mediation, voluntary and mandatory arbitration, summary jury trials and settlement conferences with magistrate judges), id. at 123-24; CJRA-prompted voluntary mediation program (unless judge in his or her discretion makes mediation mandatory), id. at 124-26. Southern District of Texas: preexisting ADR program (varied voluntary and discretionary components), id. at 159; CJRA-prompted voluntary mediation program, id. at 159-161. Southern District of California: preexisting ADR programs (varied, limited and informal) and other CJRA-prompted innovations, id. at 195-96;CJRA-prompted neutral evaluation program (coupled with concentration of pretrial case management in the hands of magistrate judges and earlier and more intensive case management, factors that the RAND analysts suggest probably contributed to overall results studied in the district), id. at 196-97. Eastern District of New York: preexisting and related ADR programs, id. at 229-30; CJRA-prompted neutral evaluation program, id. at 230-232.

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     Perhaps the most succinct and most authoritative critique of the RAND ICJ RAND Mediation & ENE Evaluation has come from the respected Center for Public Resources. In a Statement of Concerns Regarding the RAND ADR Study, issued in March 1997, CPR said:

[CJRA] has been enormously successful in encouraging innovation. By 1996, most federal district courts had established or authorized some form of ADR, many at the initiative of local advisory groups of lawyers, civic leaders and court consumers established under the statute. . . . .

While the . . . . [RAND Mediation & ENE Evaluation] should inform policy making, we believe the study's summary conclusions risk misinterpretation and may be used to support unwise actions.

In large part, our analysis concurs with the Rand researchers' own cautious and candid presentation of their findings . . . . However, we are concerned that the important and nuanced conclusions of this ADR research, along with ADR's significant contributions to litigants, the public and the courts, risk being lost. . . . .

The Rand ADR findings must be understood in the specific context of the six programs studied . . . [which] were neither exemplary nor representative of the 51 mediation and 14 neutral evaluation programs now operating in the federal district courts. These six ADR programs were selected for study only because they were statutory pilot programs . . . .

Since ADR programs vary in almost every aspect of design, implementation, purpose and quality, single and multi-court studies may tell us very little about how another court program--differently designed and operated--works. . . . .

The ADR programs studied also varied vastly in quality. Several had significant design flaws, later corrected, at the time they were studied. Indeed, one of the four mediation programs violated most of what is known about building successful court ADR programs. The court required no training for its lawyer-mediators, excluded settlement-empowered clients and insurers from the mediations, and
held short and often perfunctory mediation sessions.31/

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Footnotes:

31./ The description seems best to fit the Eastern District of Pennsylvania, although the reference to exclusion of settlement-empowered clients and insurers is not apparent in the RAND Mediation & ENE Evaluation summary for that district. EVALUATION OF MEDIATION & ENE, supra note 6, at 91-122 (1996).

32./ CPR Statement, supra note 28 at 1-3.

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     In sum, it probably would be foolhardy, in the era after the RAND Mediation & ENE Evaluation, to consider starting a court-annexed ADR program without pouring over that study for ideas, insights, inspiration, interesting variants and mutations, interrelationships, alternatives, cautions, administrative traps and a thousand other priceless gems to be found in its mountain of clearly reported and carefully assessed detail. It certainly would be foolhardy, however, to base any decision, today or in the next few years, whether to go forward with a new court-annexed ADR program solely upon the skimpy and unbalanced diet of reliable generalizations that even the most able and respected of researchers have been able to coax out of a project that, as a potential source of such generalizations, can only be characterized as an extraordinarily inadequate hodge-podge.

III. THE FEDERAL JUDICIAL CENTER STUDY:
      ADR IN THE "DEMONSTRATION DISTRICTS"

     If the RAND Report leaves some things to be desired, there is, happily, research carefully and professionally conducted of well-established, fully thought out and considered, carefully refined court-annexed ADR programs that can certainly provide useful and relevant guidance to any polity contemplating the possible utility of such programs. As the CPR's Statement of Concerns Regarding the RAND ADR Study points out:

[O]ther recent studies of well-designed court ADR programs have found significant reductions in case processing time and litigant costs. . . . [T]he Federal Judicial Center's recent report to the U.S. Judicial Conference Committee on Court Administration and Case Management33/ documents significant cost and time savings in the [Western District of Missouri's mediation program] and in the ADR programs in the Northern District of California.34/

33./ D. STIENSTRA, M. JOHNSON, P. LOMBARD, REPORT TO THE JUDICIAL CONFERENCE COMMITTEE ON COURT ADMINISTRATION AND CASE MANAGEMENT: A STUDY OF FIVE DEMONSTRATION PROGRAMS ESTABLISHED UNDER THE CIVIL JUSTICE REFORM ACT OF 1990 (Fed. Judicial Ctr. 1997)[hereinafter FJC STUDY].

34./ CPR Statement, supra note 28, at 3. The Statement goes on to note that, "Earlier studies from the National Center for State Courts and other researchers have also found cost and time savings attributable to ADR and related case management techniques." Id.

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     These districts and three others, it happens, were also selected for study as a result of CJRA. They are not "pilot" or "comparison" districts, but rather "demonstration" districts. The FJC Study explains the difference:

The demonstration districts must be distinguished from the pilot districts established by the [CJRA]. . . . On the basis of the experience of the pilot courts, and a comparison of their experience to that of ten other courts not required to adopt the six case management principles, the Judicial Conference is to make recommendations to Congress regarding the most effective case management practices for the federal courts. The experience of the pilot courts is, then, to form the basis for general principles to be applied, if proven effective, in all federal courts.

The responsibility of the demonstration districts is somewhat different. They were asked to take two case management nnovations-- differentiated case tracking and alternative dispute resolution--and to demonstrate how to make these innovations work in their particular circumstances. The courts' experiences, rather than serving as the basis for general principles, serve more as lessons or models for other districts that may wish to make similar efforts. . . .35/

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Footnotes:

35./ FJC STUDY, supra note 33, at i-ii.

36./ The demonstration programs in the Western District of Michigan and the Northern District of Ohio included differentiated case management plans. The Case Management Program of the Northern District of California was one of two demonstration projects mounted by that court. Except as these case management projects are mentioned incidentally in comments on the demonstration districts in general, these case management plans and the FJC's study of them are not considered further herein. This omission is not intended, of course, as any comment--and certainly not as any reflection whatsoever--upon the worth of these programs or of the study of them; it results, rather, only from the evident focus and subject matter of this paper. [The ADR program of the Northern District of California--the only one of the five demonstration districts to mount two different demonstrations--is of course a principal focus of this section of this paper.]

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     The most fundamental difference in the demonstration districts is reflected in the fact that, unlike the pilot and comparison districts, the demonstration districts were identified by name in the CJRA itself and invited to fill this role.37/ This was done for good reason: each of these particular districts had enjoyed the leadership of particular judges who had in one or more respects pioneered in the developments that undergirded CJRA. This history no doubt accounts, as well, for the fact that each accepted the congressional invitation to become demonstration districts. As the FJC Study reported, "Each of these districts entered into their demonstration programs . . . as willing participants in the project and with a history of attention to case management, ADR, or both. . . ."38/

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Footnotes:

37./ Pub.L. 101-650, Sec. 104, as amended Pub.L. 104-33 Sec. 1, Oct. 3, 1995, 109 Stat. 292; FJC STUDY, supra note 33, at i & iii.

38./ FJC STUDY, supra note 33, at iii. This statement is one of the many hints to be found both in this Study and in the RAND Mediation & ENE Evaluation that not all judicial participants in the pilot district programs were enthusiastic supporters of its underlying ideas. See pp. 3-4 supra.

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A. Northern District of West Virginia: Settlement Week

     The ADR history of each of the three demonstration districts that "demonstrated" an ADR program was, however, distinctive.39/ The Northern District of West Virginia, for example, had conducted "settlement week" programs since 1987,40/ and its demonstration project was to institutionalize and perfect this device.41/ The FJC Study concluded generally that those who took part in the program thought well of it, particularly when their case settled as a result of the program.42/ There appeared to be no definitive evidence that the program led to earlier disposition of cases, but since the mediators served pro bono, the only cost to the court was about $45 per case referred for court staff time.43/

There is no cost to the parties who participate . . . . At very little cost . . . to itself or the litigants, the court is able to provide a service that a great majority of participants find satisfying and fair, and that about half the participants believe is effective in reducing the time and cost of litigation.44/

39./ As, of course, are these courts in many other ways. The Northern District of West Virginia, for example, is a small court (three authorized judgeships) with a relatively high criminal caseload. FJC STUDY, supra note 33, at 257. The Western District of Missouri is twice that size, with six judgeships. Id. at 219. The Northern District of California is more than double that size, with fourteen
judgeships. Id. at 136.

40./ Id. at iii & 259. "Settlement weeks take place in a concentrated period of time and bring together at the courthouse the attorneys from the court's roster of mediators and the litigants and attorneys in the cases referred by the judges." Id. at iii.

41./ Id. at 257-67.

42./ Id. at 255-56.

43. Id. at 256-57.

44./ Id. at 257.

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B. Western District of Missouri: Early Assessment

     The Early Assessment Program adopted by the Western District of Missouri was a direct product of the district's designation as a demonstration district under CJRA.45/ The district already had in place a mandatory judicial arbitration program;46/ under the demonstration program, arbitration was no longer mandatory but became one of several ADR options.47/ The FJC Study also makes it clear that district's advisory group worked thoughtfully both in its own councils and with the court.48/ Because the advisory group concluded that delay was not a serious problem in the district, it developed a program designed to reduce litigation costs.49/ The result was adoption of a plan that called for presumptive party participation in ADR; for an "early assessment meeting" within 30 days after completion of responsive pleadings; for required client attendance at this meeting; and for discussion of discovery and exchange of information at this meeting.50/ Settlement was to be a goal of this meeting, and it was to be presided over by a court staff member, the Program Administrator, who would both provide necessary administrative services and, if agreed by the parties, serve as mediator on the spot.51/ If the parties do not opt for the latter service, under the court's order adopting the program they must select, with the help of the administrator, an ADR option from the court-approved list, including mediation, early neutral evaluation, non-binding arbitration or a settlement conference presided over by a magistrate judge.52/ The standing panel of arbitrators served that option; local lawyers were recruited to serve as mediators (other than the administrator) and evaluators.53/

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Footnotes:

45./ Id. at 219 & 221-22.

46./ This program was one of ten mandatory arbitration programs authorized under an earlier pilot judicial arbitration program, under 28 U.S.C. Sec. 651-658. FJC STUDY, supra note 33, at 221 n.150. See also note 67, infra.

47./ FJC STUDY, supra note 33, at 221.

48./ Id. at 221-22.

49./ Id. at 221. The FJC Study notes, however, at 221 n.148, that for several years preceding the advisory group's report, the district's median disposition time for civil cases had averaged one to two months longer than the national average.

50./ Id. at 221-22.

51./ Id. at 224.

52./ Id. at 223.

53./ Id. at 225.

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     This turns out to be a complicated program; the description given here omits many refinements, and a full description of it requires many pages of text in the FJC Study,54/ as does discussion of the FJC's evaluation of it.55/ To mention just a few details, the dual role of the administrator, for example, apparently created some of the problems that might have been anticipated,56/ and many judges favored using staff members, to the exclusion of independent lawyers (or magistrate judges), as mediators.57/ Nevertheless, the FJC concludes that the program "has been effective in reducing disposition time in cases that must participate in the program. . . ."58/ The judges, FJC concludes, loved the program: "[They] universally said that the Early Assessment Program has achieved its purpose of bringing about earlier settlements . . . . [and they said that it] provides several other benefits" including litigant satisfaction and reduction of court workload59/ Lawyers who completed a survey were generally commendatory of the program,60/ and blamed most problems on other lawyers and clients.61/ [The FJC does point out that results of the survey of lawyers might have been influenced by the fact that the survey forms were to be returned to the court.]62/ The judges are quoted as recommending the program enthusiastically to other courts--although one is quoted as saying that, "This would depend on the court's particular situation--for example, whether the bar in the court was interested in alternative dispute resolution."63/

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Footnotes:

54./ Id. at 219-231.

55./ Id. at 215-18 & 231-54.

56./ Id. at 232, 234, 235, 236, 239 & 253. It is apparent that at least a part of the problem posed is some recognition that the individual who served so effectively as Program Administrator would be difficult, and perhaps impossible, to replicate (although the judges of the court reportedly do not see this as a problem, id. at 218). See also the administrator's own assessment of his program. Snapp, Five Years of Random Testing Shows Early ADR Successful, 3 DISPUTE RESOLUTION MAGAZINE No. 4, Summer 1997, at 16.

57./ Id. at 231 & 234-35.

58./ Id. at 246.

59./ Id. at 232-33.

60./ Id. at 232, 249-50 & 252-53.

61./ Id. at 239-40.

62./ Id. at 237. See also text at notes 109-111 infra.

63./ Id. at 236.

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     This must be some kind of high watermark of idiosyncratic planning--and of implementation that was tailored to those same idiosyncrasies, if not to blind luck. It may serve as the basis for certain other comments here, but however enthusiastic the Kansas City judges, it is impossible to believe that it is a fungible, transferrable package. It is hard to imagine this plan working anywhere--except among the committed enthusiasts who created it. The real lesson of the FJC Study, with respect to the program of the Western District of Missouri, would seem to be that a relatively small, thoughtful group of professionals, presumably of a more or less common professional background; committed by whatever motivations and incentives to common objectives; and able to recruit the services of a remarkable jack--and more, seemingly, master--of many disparate trades; can do no wrong. It is impossible to read of the intricacies of their plan and of the enthusiasm it generated among them, without concluding that these professionals could and would have made anything of their own creation work to their satisfaction.

C. Northern Di strict of California: ADR and a "Multi-Option Pilot Program"

     The ADR and "Multi-Option Pilot Program" of the Northern District of California probably have as many identifiable separate elements as that of the Western District of Missouri. It grew, however, out of a vision first seen, articulated and begun to be acted upon many years before by the late Judge Robert Peckham of beloved memory. In a 1985 article,64/ Judge Peckham outlined a carefully thought out, comprehensive menu of pretrial innovations, in which ADR, including arbitration, mini-trials, summary jury trials and mediation, played an integrated part. His article referred as well65/ to another prospective addition to the ADR menu, one in fact then in the process of being invented in the Northern District, that obviously has become a part of the ADR main stream in the ensuing dozen years: Early Neutral Evaluation. That program was explicated in greater detail the next year in an article written by its creators,66/ including then-newly-appointed Magistrate Judge Wayne D. Brazil, who assumed administrative oversight of the court's ADR program on his appointment, a responsibility he still bears.67/

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Footnotes:

64./ R.Peckham, A Judicial Response to the Cost of Litigation: Case Management, Two-Stage Discovery Planning and Alternative Dispute Resolution, 37 RUTGERS L.REV. 253 (1985)[hereinafter Peckham].

65./ Peckham, supra note 64, at 275-76.

66./ W.Brazil, M.Kahn, J.Newman & J.Gold, Early Neutral Evaluation: An Experimental Effort to Expedite Dispute Resolution, 69 JUDICATURE 279 (1986)[hereinafter Brazil, ENE]. See also W.Brazil, A Close Look at Three Court-Sponsored ADR Programs: Why They Exist, How They Operate, What They Deliver, and Whether They Threaten Important Values, 1990 U. CHI. LEGAL F. 303, 331-34 [hereinafter Brazil, Close Look].

67./ FJC STUDY, supra note 33, at 176-77; U.S.D.C., N.D. CA, ALTERNATIVE DISPUTE RESOLUTION (ADR) LOCAL RULES 2-2 (July 1997).

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     By 1985, the Northern District, of which Judge Peckham was then Chief Judge, had had its vigorous court-annexed arbitration program in place for more than five years.68/ The court's ENE program, designed by a subcommittee of a task force convened by Judge Peckham in 1982,69/ was carefully tested beginning at about that time.70/ had been under study since 1982 Judge Peckham later worked with Congress "to craft a statute that would take into consideration some of the concerns judges had expressed about the first draft of the CJRA." 71/

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Footnotes:

68./ Peckham, supra note 64, at 269-71; FJC STUDY, supra note 33, at 176. The court's arbitration was established in the late 1970's and in 1988 became one of ten districts in a statutorily-created program of mandatory court-annexed arbitration. 28 U.S.C. Sec. 651-658; FJC STUDY at 176. See also note 46, supra. The author has been a member of the court's panel of arbitrators since 1984, and
has been appointed as arbitrator in approximately 35 cases under this program in the years since then.

69./ Brazil, ENE, supra note 66, at 279. The author has been a member of the court's panel of evaluators since 1986, and has been appointed as evaluator in approximately 15 cases under this program in the years since then.

70./ FJC STUDY, supra note 33, at 176.

71./ Id. at iii.

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     Thus the district's demonstration program built directly upon well-established ADR programs.

[T]he court's advisory group . . . did not recommend any specific new ADR programs. Instead, it noted the proven value of ADR and recommended providing full-time professional support to the court's ADR programs to enhance delivery of dispute resolution alternatives; a careful assessment of the court's current programs; and, if appropriate, development of a mediation program. The general approach . . . was to take stock, consolidate the court's strengths, and then move forward. By the time the court adopted [this] plan in late 1991, a study of the ENE program was well underway and the ADR office had been established. . . .72/

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Footnotes:

72./ Id. at 176. As required by CJRA, the plan was approved by the Judicial Conference of the United States, and by a committee of judges of the Ninth Circuit Court of Appeal. Id. at note 122.

73./ Id. at 176-77. Two other critical new staff positions, an administrative assistant and a ADR case systems administrator, were added in the course of implementing the court's program. Id. at 181-82. See also id. at 144 n.108.

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     The court's Multi-Option Pilot Program, as well as a mediation component, were somewhat later additions.74/ Thus in studying, and in making the decision to add, the only wholly new components of the program, the advisory group had the support not only of Magistrate Judge Brazil, but also of the now-in-place director and deputy director of the ADR office. A full year of deliberation went into these decisions--decisions made by an advisory group that had already completed a demonstration plan that was, as noted, conservative in scope; by a Magistrate Judge deeply experienced in court-annexed ADR; by the judges of the court; and by the staff of the ADR office--the only "newcomers" to the process but experienced professionals ready, willing and able to devote their full time to the court's ADR programs.

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Footnotes:

74./ Id. at 177.

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     Moreover, the new mediation program was integrated purposefully into the Multi-Option Pilot Program, as were the preexisting arbitration and ENE programs, settlement conferences presided over by a magistrate judge and private ADR options.75/

The judges cited several purposes for adopting the multi-option program: providing parties an opportunity to choose from among various ADR options, including some the court had not offered in the past (e.g. mediation); saving cost and time by having cases resolved early through ADR; heightening bar awareness of ADR and making lawyers think about which ADR process will be most appropriate for a particular case; determining to a limited extent which ADR processes work best for various types of cases; and determining the effect of applying a presumption that parties will choose a form of ADR.76/

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Footnotes:

75./ Id.

76./ Id.

77./ Id. at 177-81.

78./ U.S.D.C., N.D. CA, DISPUTE RESOLUTION PROCEDURES IN THE NORTHERN DISTRICT OF CALIFORNIA (rev. 1997). The section headings in this booklet are in the form of a series of questions answered by the text: "Why does the court offer ADR?;" "How can ADR help in my case?;" "Which ADR processes does the court offer?;" "Which is the most suitable ADR process for my case?" (including an interesting chart under the head, "How likely is each ADR Process to deliver the specific benefit?"); "What else do I need to know?;" and "Where can I get more information?"

79./ FJC STUDY, supra note 33, at 181-84. At least one of the consultants' evaluations, although apparently not mentioned specifically in the FJC Study, was later published. J.Rosenberg & J.Folberg, Alternative Dispute Resolution: An Empirical Analysis, 46 STANFORD L.REV.1487(1994)[hereinafter Rosenberg, ADR Analysis]. For an earlier study of the ENE program, see D.Levine, Early Neutral
Evaluation: The Second Phase, 1989 JOURNAL OF DISPUTE RESOLUTION 1.

The author of this paper is the consultant referred to at FJC STUDY at 184, who was retained "to assist in designing and conducting [three arbitrator] training sessions and to write, with assistance from Judge Brazil and the ADR staff, an 87-page arbitrator's handbook that will be used by the court in future arbitration training sessions."

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     The FJC Study is rich in fascinating detail in its analysis of the Northern District's program.80/ The broad range of ADR options included in the program, and the fact that all were either already in place as court-provided options or well-known as standard ADR techniques, among other factors, give this analysis rich potential for those considering or designing ADR programs for courts that do not yet offer them. The FJC Study found the reaction of the court's judges to the program generally quite favorable.81/

The great majority of judges who have had exposure to the multi-option program said quite enthusiastically that they would recommend such a program to other courts. When asked what advice they would give, two stressed the need for adequate resources; as one judge said:

"Start small and do a quality program; don't have a half-baked, superficial program with too few resources trying  to   reach too many cases. Only service the cases you can service well--including quality control of neutrals."

In addition, two judges said an ADR program should be integrated into a court's case management program, with one going further to say that such a program "probably only works in a district where there's a fairly active case management program--the two go hand in hand."82/

80./ FJC STUDY, supra note 33, at 184-213.

81./ Id. at 193-96.

82./ Id. at 195-96.

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     There is a remarkable uniformity in the principle conclusions from the FJC's survey of lawyers who participated in the court's ADR programs. Sixty-one per cent reported that their entire case settled as a result of participation in one of the court's ADR alternatives, with another four per cent reporting that a part of the case settled.83/ Likewise, 61 per cent of lawyer respondents reported that, in their view, participation in the court's ADR program had decreased time to disposition of the case.84/ The FJC analysts concluded that, "The relationship between ratings of ADR's effects on disposition time and ratings of its effects on settlement suggest that ADR may decrease litigation time by bringing about settlements earlier than they otherwise would have occurred."85/ Sixty-two per cent of lawyers surveyed reported that, in their view, cost to resolve the case was reduced as a result of the court's ADR process.86/ More than half of lawyer respondents reported that the ADR process they selected was helpful or very helpful in:

[M]oving the parties toward settlement; clarifying or narrowing monetary differences . . .; encouraging the parties to be more realistic . . .; giving one or more parties an opportunity to "tell their story"; providing a neutral evaluation of the case; clarifying or narrowing liability issues . . .; allowing clients to become more involved in the resolution of their case; and improving communication between [the parties].87/

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Footnotes:

83./ Id. at 197-98.

84./ Id. at 199-200. Twenty-three percent of lawyers reported no effect on time to disposition and 11 per cent reported increased time.

85./ Id. at 200.

86./ Id. at 200-203. Although the court's plan contemplates the possibility that mediators and neutral evaluators may be paid by the parties for services beyond the first four hours, which are provided pro bono, such fees were reported by the lawyers involved to have been paid by only 13 per cent of parties in the program, and only two per cent of parties paid more than $4,000 for these services. Arbitrators are paid ($150 to $250 per day) by the court, and magistrate judges provide their services as a part of their regular duties. Id. at 200.

87./ Id. at 204-05.

88./ Id. at 206-07. Fifty-two per cent were "very satisfied," the rest "somewhat satisfied;" 85 per cent found the neutral "very fair," the rest "somewhat fair."

89./ Id. at 207.

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IV. SOME IDIOSYNCRATIC OBSERVATIONS ON
     U.S. COURT-ANNEXED ADR

     If there is some rigorous social research and much by way of anecdote to support the notion that court-annexed ADR can be of value, and if even the social research whose design prevents useful generalization of its conclusions can provide a gold mine of inspiration and ideas, those considering adoption of new court-annexed ADR programs, weighing alternatives and drafting plan options, have much with which to work. It seems unlikely that this paper can contribute much more to this process by parrotting more of the contents of the rich vein of research discussed or cited herein. Nor would it be appropriate for an author from a legal culture that is cognate but clearly distinctive, who is without background either in local context or in the study, analysis and planning work already done, to presume to offer specific system design proposals.

     What might be of some use, and what is offered here, is (to shift the metaphor) neither a melody line of ADR design nor a base obligato of support structure but rather a free-ranging pizzicato accompaniment--one with no pretense to completeness nor even to internal
coherence. Some of its notes pick up harmonics struck by points discussed earlier herein; some attempt to pick out and attempt to highlight issues of culture or administration or practice that the composers of the main body of the work may want to consider. Nothing in this decorative line can be said to be essential; its greatest pretension is that some of it might suggest ways in which to make the opus less demanding to compose or play, or more satisfying to composers, performers or audience.

     If the reader finds evidence of incoherence in what follows, let the record reflect that the author, at least, is able to find enough of a thread of logic to lead, however tenuously , at least from one topic to the next.

A. Of Goals and Purposes

     It must sound a truism to say that the goals and purposes of any court-annexed ADR program must be carefully thought out and articulated. If that is the case, it must be because the obvious goals of almost any judicial management programs are always stated in precisely the same terms: save time, save cost, clear dockets. If it hardly matters in which order these universal objectives are stated, that must be because, at bottom, they are inevitably related and ultimately the same unitary objective: efficiency.

     Few if any of the court-annexed ADR programs in the U.S., those discussed here or any others, fail to have set these all-purpose objectives as their target--or at least as a target. Those objectives are necessary90/--but they are not sufficient as goals for any seriously proposed court-annexed ADR program. As the detail in the weighty research reports cited here demonstrates on almost every page, achievement of efficiency in a process as idiosyncratic as disposition of a varied array of modern civil cases is extraordinarily difficult to prove through statistical analysis of opinion research--inevitably the principal tool of social researchers when true experiment is impossible. Moreover, every trial lawyer knows that, even if nine things go perfectly, disaster as to the tenth can throw off every prediction and calculation; put another way, the factors that contribute to efficiency, where it is achieved, are not interchangeable, much less fungible--and research results that suggest otherwise must be suspect. This is not to say that social research on these processes is not desirable; on the contrary, for a host of other reasons it is essential. It is to say that any attempt to set up efficiency as measured by social research as the ultimate determinant of the worth of these programs is almost certainly doomed to disappointment, if not to failure.

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Footnotes:

90./ See, e.g., EVALUATION OF MEDIATION & ENE, supra note 6, at 9: "The rationale for ADR programs is the hope that they are faster, cheaper and/or more satisfactory to participants than formal court adjudication. . . ."

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     One solution is a much finer definition of the problem--or problems--and a much more specific consideration of the way or ways that these problems might be solved. This approach has two, or perhaps three, benefits: first, as a matter of planning, specific problems may suggest one or more specific solutions; second, as a matter of research, the success or failure of any specific proposal, at this lower level of detail, may be more amenable to objective measurement, to analysis through surrogate court-maintained statistics, to open-minded assessment, or to some combination of these; and third, as a matter of implementation, development of fully thought out goals at this level of detail is apt to provide clear--sometimes almost self-evident--answers to otherwise-hard-to-answer operational questions.

     Efficiency is obviously a principal goal of any modern system of judicial rules and procedures, for example, but a process akin to the one suggested has come to be followed in detail in the course of working out in detail the host of issues that detailed consideration of rules of civil procedure throws up for resolution. Court-annexed ADR procedures and its issues are apt to seem less clear, less self-evident, even to experienced trial lawyers, than are issues of trial procedure; but unfamiliarity is a beast that every trial lawyer--and judge--wrestles to the ground daily. Let these professionals bring to bear upon the grist of court-annexed ADR processes the same hard-headed, detail-minded skills that are the millstones of their daily professional work.

     It would be hard to point to a better example in the published record than the evolution of the Early Neutral Evaluation program of the Northern District of California. As noted, that program, so far as its creators know, was invented by lawyers and judges in that district.91/ The process of invention, and particularly the issues that the inventors addressed, are set out in some detail in published articles:92/

The theory that drove the design of ENE was straightforward: identify the principal sources of unnecessary cost and delay, then craft a procedure that parties of good will could use to cut through the formalities, indirection and inertia of the traditional system in order to get to the center of their dispute more quickly and set up a cost-effective way to resolve it fairly. . . .

[T]he committee understood that some judges, at least in some cases, did not devote as much time early in the pretrial period to case development planning and to case management as might be optimal. So ENE was designed in part to supplement the resources the court could commit to this important work.

The other principal sources of cost and delay that ENE was designed to equip the parties to attack
were:

Poor or non-existent communication across party lines . . . .

Temptation to put off core investigative homework . . . .

Difficulty lawyers/clients have in bringing themselves early . . . to confront systematically their position . . . .

Unrealistic clients who need a reality check.

Clients who do not have confidence in their own lawyer's judgments and recommendations.

Clients who feel alienated from the formal litigation process . . . .

Lawyers who may be unjustifiably meter-running or milking a case. . . .

Unrealistic lawyers who need a reality check.

Lawyers who lack confidence in their judgment about the case.

Lawyer and client reluctance to be the first to raise the issue of settlement.93/

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Footnotes:

91./ See p.10-11, supra.

92./ See Brazil, ENE, supra note 66, at 279-80; Brazil, Close Look, supra note 66, at 331-34. See also Brazil, EARLY NEUTRAL EVALUATION IN THE NORTHERN DISTRICT OF CALIFORNIA: HANDBOOK FOR EVALUATORS 2-3 (USDC, ND CA 1996).

93./ Id.

94./ See, e.g. the inference of the FJC researchers with respect to timing of settlement derived from data on settlement and disposition time. FJC STUDY, supra note 33, at 200, discussed at p.13, supra. See also Rosenberg, ADR Analysis, supra note 79, at 1522, with respect to those researchers' analysis of attendance of parties at ENE sessions.

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B. The Curse of Amateurism in ADR

     Something about the mythology and ethos of alternative dispute resolution seems capable, even to this very day, of dredging out of the nineteenth century the ghost of that cult of amateurism that carried the likes of British aristocrats who assumed military or governmental roles, or the U.S.'s Theodore Roosevelt, so far, but that in turn fell so far into the ash heap of the First World War: the notion of gentlemanly omnicompetence, not to say omnipotence.95/ Such an amateur would ask, "Cannot we of good will, good breeding, good education and sound intelligence reason together to a solution of this simple-sounding problem?" The answer, of course, is yes: some kind of solution undoubtedly will be found. The difficulty is that what is almost certain to happen when this outlook is adopted in the world of the late 20th century is that some one or more wheels get re-invented--almost always, it seems, in ignorance of some significant aspect of the law, the history or both.96/

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Footnotes:

95./ The modern author, in this circumstance, can hardly seek to escape a modern charge of sexism by purporting to speak anachronistically of "ladylike" omnicompetence or omnipotence in a way that the "gentlemen" of that era never would have done--partly out of conviction but partly, as well, out of deference to the position in which they thought it proper and "gentlemanly" to hold women. Is the attack at hand, on the foibles of these sexists of a bygone era, a sufficient defense to the author making it?

96./ See, e.g., text at note 31, supra.

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C. The Peculiar Character--and Importance--of ADR Administration

     Expertise in the ADR field, as in many others, rests, among other principal repositories, with administrators. It is not absolutely necessary, for example, to have administrative staff in place before innovations are developed; indeed in many circumstances and at many stages of the planning process, the nature of the administrative staff required will be an unknown that will depend on the character of the plan to be proposed or adopted. Yet it was obviously of great benefit to the Northern District of California to have its ADR office staff in place as it was developing the principal innovation of its demonstration project, the Multi-Option Pilot Program.97/

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Footnotes:

97./ See p.12, supra. See generally G.Loveland, Two ADR Administrators Reflect on Developing and Implementing Court-Annexed Programs, 7 FJC DIRECTIONS 18 (Dec. 1994)(reporting a joint interview of two federal court ADR administrators, including Stephanie Smith, Esq., first director of the ADR office of the Northern District of California). It is noteworthy in this context that, in
addition to their substantial litigation experience, the top staff of the Northern District of California's program brought other invaluable background to their work: Ms. Smith had had substantial ADR experience, and her deputy, Miriam R. Arfin, Esq. (who succeeded Ms. Smith as director in 1997) had a background in public policy. Interview with Ms. Arfin, October 10, 1997.

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     The problem with administration in ADR, both at the planning stage and throughout thereafter, is its invisibility. If any ADR program, court-annexed or otherwise, is well administered, it is highly likely that those having principal contact with the administrators--normally the lawyers--will under-appreciate the effort, and the importance of the effort, of whatever administrative staff is in place. Normally, it takes a failure of administration, if not a disaster, for preoccupied principals to come to a full recognition of the importance of the administrative office and role.

     Another truth, all too easy to overlook, is that, whether or not there is an administrative hierarchy in place, every case in an ADR program will be administered. This is another way of saying that, if the work of administration is not done by persons hired for their administrative skills, someone else will do it. In this context, that means that, to the extent that professional administrators are not is place, the work will be done pro tanto by the presumptively unqualified: the lawyers and the neutral--also likely a lawyer. Moreover, the time that these professionals take away from their normal pursuits in order to administer, if it is compensated at all, will likely be compensated at a rate appropriate for a legal professional, not an administrator--and, because the lawyer is apt to be inefficient at administrative work and perhaps even ill-equipped to do it, more time may be required to do less.

     The administrative arrangements employed by the various courts studied in the principal pieces of research commented upon here, and the costs thereof, are set out in full in those reports.98/ These accounts, including some commentary on the adequacy of these administrative arrangements, are among the parts of these reports that deserve the most careful and most thoughtful study by anyone concerned with the decision to adopt, or with planning, any court-annexed ADR program.

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Footnotes:

98./ EVALUATION OF MEDIATION & ENE, supra note 6, at 38-40, 77-78, 110-111, 144-45, 176-80, 214-16 & 248-49; FJC STUDY, supra note 33, at 23-24, 181-84, 224-26 & 263-64.

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D. The Temptations and Trials of Reliance upon Pro Bono Labor

     The substantial staffing costs incurred by many of the federal district courts whose programs were evaluated in the research considered here would have been dwarfed in the courts' budgets, in most instances, had neutrals-- evaluators and mediators--been paid market rates and paid by the courts. Except in the Western District of Missouri, where as noted99/ the key administrator was also a hybrid mediator, this was not done; in the Western District of Oklahoma100/ and the Southern District of Texas101/ (in both of which the mediation program was voluntary, leading to a relatively low case volume),102/ the neutrals were paid by the parties; elsewhere they worked pro bono.103/

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Footnotes:

99./ See p.10 supra.

100./ EVALUATION OF MEDIATION & ENE, supra note 6, at 126.

101./ Id. at 161.

102./ Id. at 124-25 (Western District of Oklahoma); id. at 159-60 (Southern District of Texas).

103./ As discussed at note 86, supra, in the Northern District of California mediators and evaluators may be paid by the parties for their time in excess of four hours.

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     The first question is whether the neutrals who work for nothing were worth more than they were paid. The RAND Evaluation of Mediation & ENE did inquire into the participants' sense that the court's handling of the case was or was not fair, or whether they were satisfied with the court's management of the case; it did not, however, inquire deeply or specifically into the lawyers' or parties' views about the effectiveness of mediators. The FJC Study did make such inquiries, at least in the Northern District of California. It is possible that responses may have been influenced (possibly in either direction) by, among other factors, lawyers' knowledge that the neutrals were donating their services, In any event, the mediators who served pro bono were generally well regarded by the lawyers surveyed.104/

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Footnotes:

104./ FJC STUDY, supra note 33, at 207-08. As noted at pp.9-10, supra, in the Western District of Missouri so much of the neutral work was done by the administrator that apparently there was nothing to report about the other neutrals who were involved. The settlement week mediators in the Northern District of West Virginia do not appear to have been the subject of any separate inquiry or commentary.

It is interesting to note that the judges of that court--who presumably would never attend a mediation session under any circumstances --are reported to believe that "neither the judges nor the parties would have as much confidence in [private mediators] as they have in the court's administrator. One judge is quoted as saying of private mediators, "We wouldn't know how good they are." Id. at 234. On the court's role and responsibilities in establishing a roster of neutrals, or alternatively, in referring cases to neutrals where there is no officially sanctioned roster, see C.Menkel-Meadow, Judicial Referral to ADR: Issues and Problems Faced by Judges, 7 FJC DIRECTIONS 8, at 9-10 (Dec. 1994).

Rosenberg, ADR Analysis, supra note 79, at 1529-33 & 1544-50, focussed much more closely upon assessments of the performance of individual evaluators, concluding, id at 1531, that "about 35 percent of the variation in attorney satisfaction with ENE is attributable to the identity of the evaluator in the case."

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     The second question is whether neutrals who agree to volunteer for "pilot programs" or "demonstration projects" will remain willing over any long term to serve pro bono. The RAND Mediation & ENE Evaluation speaks of "differences in . . . the "local legal culture" that might influence the costs and effects of the ADR provided . . . ."105/--perhaps a circumspect reference to this issue; it also points out that, where a district uses lawyers serving pro bono as mediators, these neutrals are "not nearly as likely to be professional ADR providers . . . ."106/ The FJC Study makes references to the savings in demonstration programs resulting from the pro bono service of neutrals and to the possible resistance of parties pressured to take part in an ADR program in which they were obliged to pay for the services of neutrals.107/

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Footnotes:

105./ EVALUATION OF MEDIATION & ENE, supra note 6, at 29.

106./ Id. at 33.

107./ FJC STUDY, supra note 33, at 218, 234 & 235.

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     In the latest of several articles addressing issues growing out of these studies, Elizabeth Plapinger of the Center for Public Resources, addresses this question with characteristic forethought and candor:

This recent wave of ADR development . . . reflects the strong influence of regionalism and local legal culture. . . .

Despite considerable growth in the private provider industry, most districts have created their own rosters, instead of turning to outside organizations for ADR services. The bright line between court rosters and private ADR providers is dimming, however, as lawyer-neutrals on court rosters also work as private neutrals . . . .

One of the most dramatic changes has been the shift from pro bono to party-funded services. Most ADR programs that started before 1990 relied on volunteers as attorney-neutrals--except for the statutory arbitration programs, for which congressional appropriations covered arbitrators' fees. Programs of more recent vintage usually require parties to pay the attorney-mediator.

Fee programs have been instituted without fanfare (or reported challenge) even where litigants are
required to use ADR. In some districts, a strong local provider industry made a pro bono program
impossible. In others, the court was following a state court practice. . . .108/

108./ E.Plapinger, Twilight of CJRA Means Unsure Future for ADR, Nat'l L.J., Sep. 22, 1997, at B25 col.1, B26 cols. 3-4. See also notes 1 & 3 supra.

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     A final question seems an obvious one, but it is rarely discussed, so far as appears, here or in any cognate context: the moral dimension of a decision to use pro bono labor systematically to service a full run of civil litigation. If it is fair to assume that there is some finite limit on the amount of time than any given potential volunteer is willing to devote to service as a neutral at no fee, is it appropriate to draw on that pool of free labor in aid of parties who may be engaged in judicial combat over large sums of money and who are represented by lawyers presumably being paid a fee agreeable to them? Tests of indigence or moral deservedness are commonly imposed, or used as guidelines in determining the entitlement of individuals to the free professional services of advocates, for example, and it is thus happens rarely indeed that any institution not recognized as charitable is given free legal services. Are the tight budgets of courts (or the tightfistedness of legislators in appropriating funds for judicial systems, or the penuriousness of taxpayers) adequate justification for calling for donations, by some but not all, to meeting these society-wide problems?

E. The "Judge Effect" in Court-Annexed ADR

Another factor only rarely adverted to specifically is the array of consequences that follow from a perfectly obvious fact: that planning, creating and operating any court-annexed ADR program is done, at the very least, in close proximity to judges.

     Judges begin life as ordinary people, of course, and many of the most sensitive strive to act as ordinary as may be possible outside of their judicial role. They cannot escape, however, the consequences of having, and being obliged to exercise, great power over individuals and entities. This penumbra of judicial power is particularly inescapable when judges are dealing with issues like those arising out of a court-annexed ADR program that touch directly upon their own fundamental responsibilities, and when they deal principally with the other professionals--the lawyers--who are equally concerned about judicial processes.

     Few judges are deluded about this. Few, for example, consider giving up the judicial calling in quest of a career in stand-up comedy just because they find that their jokes seem to get more laughs now than they did before they "got their bottoms on the bench," in the English phrase. All judges, however, and all of their non-judicial colleagues, need to keep this factor in mind. Plans or ideas submitted to an advisory body of practitioners, for example, in a way that suggests them to be already fully endorsed by the judiciary may come back with much enthusiastic approval but without benefit of the critical comment necessary to identify weak spots. Surveys of lawyers, or even of parties,109/ that seem to be destined to come under the judges' noses in a way that might somehow make the respondent identifiable,110/ are likely to be colored to some extent by that perception. In may even be that the judicial role in these programs makes conceivable a long-lasting (or at least a longer-lasting) reliance upon pro bono services of neutrals; for whether or not judges can or do know which respondent gave which answers in survey questionnaires, there is no reason to suppose that judges cannot know, if they wish to, which local lawyers serve on their court's panel of ADR neutrals. The effect of judicial involvement on lawyer-participants--the "Judge Effect"--in court-annexed ADR is not the same as the famous Hawthorne Effect--the discovery of early industrial psychologists, in the late 1920's that singling workers out for research was vastly more important a variable in affecting their output than any of the variety of working conditions they singled them out to test111/ --but it is almost certainly as pervasive and as difficult (or impossible) to control.

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Footnotes:

109./ The research acknowledges the considerable difficulty of reaching parties, as distinct from their lawyers. EVALUATION OF MEDIATION & ENE, supra note 6, at 24-25 (noting a far lower rate of return of questionnaires from parties than from other classes of participants, traceable in part to difficulty in obtaining addresses); FJC STUDY, supra note 33, at A-4 (noting that litigants were not
included in that study's survey because, in addition to anticipated low return rates, names and addresses were available only from lawyers who, in pretests, proved unwilling to provide this information in a high proportion of cases).

110./ FJC STUDY, supra note 33, at 237, discussed at p.10, infra.

111./ See generally E.MAYO, THE HUMAN PROBLEMS OF AN INDUSTRIAL CIVILIZATION (2d ed. 1946)(including discussion of research conducted by its author at the Western Electric Co. plant in Hawthorne, IL).

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     There are even occasional reports that particular judges sitting on particular courts may take the view that the conduct of affairs in their courts is not to be determined by advisory groups, much less dreamy-eyed reformers --or perhaps even by legislators; rather, it is said, in the minds of such jurists these matters are the proper concern of the judge in question alone. One who has no experience on the bench cannot vouch for such accounts. The non-judicial observer would be far better advised, thus, to adopt the memorable phrase of a recent television character in the role of the Prime Minister of Great Britain: "You might well think that. I could not possibly comment."
 

For further information, please e-mail: fos@fos-adr.com .

fos-art3.html created November12, 1999: rev. 01