Adr Is Not a Household Term: Considering the Ethical and Practical Consequences of the Public's Lack of Understanding of Mediation and Arbitration

Publication year2021
CitationVol. 99

99 Nebraska L. Rev. 797. ADR Is Not a Household Term: Considering the Ethical and Practical Consequences of the Public's Lack of Understanding of Mediation and Arbitration

ADR Is Not a Household Term: Considering the Ethical and Practical Consequences of the Public's Lack of Understanding of Mediation and Arbitration


Kristen M. Blankley [*]


Ashley M. Votruba [**]


Logen M. Bartz [***]


Lisa M. PytlikZillig [****]


TABLE OF CONTENTS


I. Introduction .......................................... 798


II. Literature Review ..................................... 800


III. Current Study ........................................ 807


IV. Methods .............................................. 811
A. Participants ....................................... 811
1. Community Sample ............................ 812
2. Expert Sample ................................ 812
B. Survey Instrument ................................ 813


V. Results ............................................... 815
A. Analysis of Community Participants' Familiarity with, Knowledge of, and Experience with Dispute Resolution Processes .............................. 815
1. Awareness of the Dispute Resolution Process . . . 816


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2. Subjective Knowledge of Dispute Resolution Processes ...................................... 817
3. Experience with Dispute Resolution Processes . . 819
B. Analyses Comparing Knowledgeable Community Members' and Experts' Perceptions of the Self-Determining, Voluntary, and Collaboration Potential of Various Processes ............................... 820
1. Knowledgeable Community Member and Expert Perceptions of Self-Determination .............. 820
2. Knowledgeable Community Member and Expert Perceptions of Voluntariness ................... 822
3. Knowledgeable Community Member and Expert Perceptions of Collaboration Potential .......... 823
C. Discussion of Results .............................. 824


VI. Implications for Lawyers - Ethical and Process-Based ............. 828
A. Implications Relating to Legal Ethics .............. 829
1. Ethics and Communication with Clients ........ 829
2. Ethics and Division of Responsibility Between Attorney and Client ........................... 833
3. Ethical Duty to Counsel Clients Regarding ADR Options ....................................... 836
B. Implications Relating to Client Counseling and Informed Consent ................................. 840
1. Client-Centered Counseling .................... 840
2. Education by ADR Professionals to Participants ................................... 842
3. Education by Court Systems to Pro Se Litigants ...................................... 844


VII. Conclusion ............................................ 846


I. INTRODUCTION

The field of alternative dispute resolution (ADR) experienced its "Big Bang" moment in 1906 when Roscoe Pound, then University of Nebraska College of Law Dean, delivered his famous address, "The Causes of Popular Dissatisfaction with the Administration of Justice." [1] On the seventieth anniversary of the address, Chief Justice Warren E. Burger convened a conference, now known as the "Pound Conference," to revisit those ideas in the 1906 address and discuss ways to promote greater satisfaction with the judiciary and conflict resolution. [2] Harvard Law Professor Frank Sander delivered the keynote address, outlining the possibility of a "multi-door courthouse" in

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which litigants could be triaged into the most appropriate forum for their individual dispute, such as mediation, arbitration, or litigation. [3]

ADR expanded rapidly over the next forty years, both as a practice and an academic discipline. Supporters for the ADR movement included Congress, legislatures, law schools, and community dispute resolution centers, among others. [4] Mediation programs, in particular, flourished, and courts have also experimented with arbitration programs since the Pound Conference. [5]

ADR scholars have long touted the many advantages of non-litigation options for disputants. Those advantages include cost and time efficiencies, creative problem-solving, confidentiality, party autonomy and control over the process and outcome, and flexible and accessible processes. [6] Scholars also emphasize the necessity of "buy in" by participants, courts, and providers, so that the benefits of ADR can be fully realized. [7] Questions have always lingered, however, regarding the public's understanding of ADR, thus implicating assumptions that parties know enough about these processes to participate knowingly.

This Article confirms what many in the field have long feared: ADR processes, such as mediation and arbitration, are still not well understood by the general public. Despite the many programs and advances, the lay public generally self-reports very low familiarity with, knowledge of, and experience with ADR processes. However, this Article goes beyond confirming low self-reported knowledge by the public by comparing community perceptions (from those community members who were at least minimally familiar with the necessary mechanisms)

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to expert perceptions of various ADR mechanisms and the key features of those mechanisms. We found that although community members and experts have similar perceptions for some mechanisms, there are mechanisms for which their perceptions differ significantly. This distinction suggests that even community members who report being familiar with a mechanism may misunderstand important aspects of that mechanism.

These findings implicate core ethical and practical considerations for lawyers, ADR neutrals, and court systems. As discussed below, [8] lawyers and ADR practitioners rely on informed consent of their clients who are participating in these processes. If the general public is still unfamiliar with these processes forty years after their existence, the implication is that lawyers, neutrals, and courts may not be fulfilling their educational duty to ensure the requirement of informed consent. This Article not only examines these ethical issues but also considers ways to change practice to meet these ethical requirements and conform to best practices.

This Article proceeds in five main parts. Part II examines the research to date in both legal and social science publications regarding the general public's knowledge of ADR processes. [9] Part III provides an overview of the study and how it relates to the literature. [10] Part IV sets forth the study's methodology, [11] and Part V provides the applicable results of the study. [12] Part VI considers the far-reaching implications of the study, including how such implications affect lawyers' ethical obligations related to client counseling and how third parties conduct their practices. [13]

II. LITERATURE REVIEW

Current research about people's awareness or knowledge of ADR processes is sparse. Lawyers and academics commonly presume low knowledge of ADR processes by the general public with little clarity regarding what people in the general public do and do not know. For example, one dominant view of lawyering is the "traditional model," which defines the lawyer as expert and the client as a person or entity needing guidance. [14] In the literature, discussions of "client control" and of the ethical responsibilities of lawyers (e.g., to offer their clients

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information and process choices that match client values) often portray the legal actors as experts on the process, while the clients' expertise pertains to their own personal goals and values. [15] Meanwhile, individual scholars have made broad assertions such as, "Many litigants do not know that dispute resolution procedures other than litigation exist, many do not understand the fundamental workings of how various procedures operate to resolve disputes, and many do not appreciate the strategic application of these procedures to their case." [16] Others point to a "commonly held belief [among those in legal circles] . . . that resistance to the mediation process is a direct result of the widespread lack of information about the process [among clients]." [17] Although these scholars primarily refer to client knowledge of mediation, one could assume similarly low knowledge of arbitration and other specialized processes. [18]

The presumption that lawyers and their clients have different expertise (in processes and values respectively) could be viewed as an appropriate and acceptable separation of roles and responsibilities. Significant barriers to entry exist to practice law, such as educational requirements, character and fitness assessments, and bar passage mandates. [19] The bar exam tests subjects relating to process, such as civil procedure, evidence, and criminal procedure. [20] The expert model of law services can also be viewed as appropriate given the low success

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rates of pro se parties in courts, which is often attributable to lack of process knowledge. [21]

Despite the potential appropriateness of such a separation of roles, some scholars and...

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