What Difference Does ADR Make? Comparison of ADR and Trial Outcomes in Small Claims Court

• Author: Deborah Thompson Eisenberg,Lorig Charkoudian,Jamie L. Walter
• Published date: 01 September 2017
• DOI: http://doi.org/10.1002/crq.21197
• Date: 01 September 2017

C R Q, vol. 35, no. 1, Fall 2017 7

© 2017 Association for Confl ict Resolution and Wiley Periodicals, Inc.

Published online in Wiley Online Library (wileyonlinelibrary.com) • DOI: 10.1002/crq.21197

W h a t D i  erence Does ADR Make? Comparison of

ADR and Trial Outcomes in Small Claims Court

Lorig Charkoudian

Deborah Thompson Eisenberg

Jamie L. Walter

 is study compares the experience of small claims litigants who use

alternative dispute resolution ( ADR ) to those who proceed to trial

without ADR . ADR had signifi cant immediate and long-term

benefi ts, including improved party attitudes toward and relationship

with each other, greater sense of empowerment and voice, increases

in parties taking responsibility for the dispute, and increases in party

satisfaction with the judiciary. Cases that settled in ADR also were

less likely to return to court for an enforcement action within the

next year.

Introduction

M any courts off er alternative dispute resolution (ADR) processes,

such as mediation and settlement conferences, but few rigorous

studies have examined what diff erence ADR makes as compared to trial.

 is research is connected to a broader study of the costs and benefi ts of ADR in Maryland

courts conducted by the Maryland Judiciary Administrative Offi ce of the Courts, with funding

by the State Justice Institute, SJI-13-N-128, in collaboration with Community Mediation

Maryland; Bosserman Center for Dispute Resolution at Salisbury University; the Institute

for Governmental Service and Research, University of Maryland, College Park; and the Uni-

versity of Maryland Francis King Carey School of Law Center for Dispute Resolution.  e

authors thank the research team, judges, judicial staff , ADR practitioners, and litigants for all

of their cooperation, assistance, and support. Caroline Harmon Darrow drafted portions of the

original literature review and Haleigh LaChance drafted portions of the research report from

which this article was drafted. Additional information about the larger Maryland ADR study

is available at http://mdcourts.gov/courtoperations/adrprojects.html .

ARTICLES

8 CHARKOUDIAN, EISENBERG, WALTER

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 is research is the fi rst to compare the attitudes and changes in attitudes

of litigants who participated in ADR to an equivalent comparison group

who used the traditional court process, both immediately and three to six

months later.  e research measured a variety of litigant attitudes includ-

ing: attitudes toward the other party, sense of empowerment and voice in

the process, sense of responsibility for the dispute, belief that the confl ict

could be or had been resolved, and satisfaction with the judicial system.

 ese attitudes were tracked from before to after the ADR session or trial

as well as three to six months later.  e study also tested whether experi-

ences diff ered for various demographic groups. Finally, the study examined

the predicted probability that the treatment and comparison groups would

return to court for an enforcement action in the subsequent year.

Many ADR studies rely on the results of post-ADR participant evalu-

ation forms, without conducting surveys prior to the intervention, using

a comparison group that went to trial without ADR, or controlling for

other variables that could aff ect the outcome.  e present study measures

the immediate and long-term attitudes and changes in attitudes of those

litigants who participated in ADR as compared to those who went to trial

without ADR. Unlike most ADR research, the study took into account

that there may be a range of other factors that could explain shifts in party

perspectives. We gathered a wide range of information about the parties

and the confl ict and, using regression analysis, controlled for other factors

that might infl uence the outcome.  is permits more statistically rigorous

conclusions about the impact of ADR as compared to trial.

 is study uniquely tests whether there is value in simply participat-

ing in the ADR process, regardless of whether the parties reach agree-

ment. Many judicial assessments of ADR focus on settlement rates

and trial avoidance as the main goals of ADR (Anderson and Pi 2004 ;

Goerdt 1992 ). To evaluate the impact of ADR participation beyond

settlement, we included parties who reached agreement in ADR and

those who did not. In addition, some commentators question the value

of ADR because parties can negotiate directly with each other and settle

on their own “on the courthouse steps” (Wissler 2002 ).  e comparison

trial group therefore included those who reached “hallway” agreements

before trial and those who did not.  e regression analysis included a

variable for those who reached agreement, whether in ADR or on their

own through unassisted negotiation.  is variable isolated the impact

of simply participating in the ADR process, regardless of whether the

parties settled.

What Di erence Does ADR Make? 9

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We report outcomes that are statistically signifi cant at a 95 percent con-

fi dence level. Using this heightened benchmark, ADR has signifi cant posi-

tive impacts in both the short term and long term, regardless of whether

the parties settle. In the short term, ADR improves the parties’ attitudes

toward each other, gives parties a greater sense of empowerment and voice

in the process, increases their taking responsibility for the dispute, and

increases their satisfaction with the judicial system more generally. In the

long term, ADR participants are more likely than those who went to trial

to report an improved relationship with and attitude toward the other

party, satisfaction with the outcome, and satisfaction with the judiciary.

Parties who reach agreement in ADR are less likely to return to court for an

enforcement action than all other cases (including those in which the par-

ties settled on their own without any ADR, ADR cases that did not settle,

and cases with a court verdict).

Literature Review

Studies of ADR in civil cases have identifi ed many benefi ts for the parties

and the judiciary (Shack 2003 , 2007 ; Stipanowich 2004 ). In the short

term, ADR generally promotes high settlement rates and judicial effi ciency

(Clarke, Ellen, and McCormick 1995 ; Clarke, Valente, and Mace 1992 ;

Goerdt 1992 ; Hann and Barr 2001 ; Pearson and  oennes 1984 ; Slack

1996 ; Wissler 2004 ). Mediation saves time and resources for the parties

and courts (Anderson and Pi 2004 ; Bundagg and Flagg 2003 ; Clarke,

Ellen, and McCormick 1995 ; Clarke and Gordon 1997 ; Clarke, Valente,

and Mace 1992 ; Goerdt 1992 ; Hann and Barr 2001 ; Kobbervig 1991 ;

MacFarlane 1995 ; Slack 1996 ;  oennes 2000 ; Wissler 1995 ).

Most ADR studies report high levels of party satisfaction (Kobbervig

1991 ; Maiman 1997 ; McEwen 1992 ; Schildt, Alfi ni, and Johnson 1994 ;

Slack 1996 ). ADR participants generally believe that the process and out-

come are fair (Hann and Barr 2001 ; Maiman 1997 ; Shack 2003 ; Wissler

2002 ). Some studies have found that parties report greater perceptions of

fairness and satisfaction with mediation than they do with adjudication

(Wissler 2004 ).  is is true regardless of settlement in mediation (Wissler

1995 ).

Improved relationships between parties are an oft-touted benefi t of

ADR, because mediation can “permit a more complete airing of griev-

ances and improve relationships between disputants” (Pearson 1982 , 440).

But rigorous research demonstrating relational shifts in mediated cases