What works in alternative dispute resolution? The impact of third‐party neutral strategies in small claims cases

• Published date: 01 December 2019
• Date: 01 December 2019
• Author: Lorig Charkoudian,Jamie L. Walter,Deborah T. Eisenberg
• DOI: http://doi.org/10.1002/crq.21264

RESEARCH ARTICLE

What works in alternative dispute resolution? The

impact of third-party neutral strategies in small

claims cases

Lorig Charkoudian

1

| Deborah T. Eisenberg

2

| Jamie L. Walter

3

1

Community Mediation Maryland, Takoma

Park, Maryland

2

University of Maryland Francis King

Carey School of Law, Baltimore, Maryland

3

Administrative Office of the Courts,

Maryland Judiciary, Annapolis, Maryland

Correspondence

Deborah T. Eisenberg, University of

Maryland Francis King Carey School of

Law, 500 West Baltimore Street, Baltimore,

MD 21201.

Email: deisenberg@law.umaryland.edu

Abstract

This research examines “what works”in small claims

court alternative dispute resolution (ADR) processes.

Using a comprehens ive quasi-experim ental design that

combines real-time behavioral observation of authentic

small claims court ADR sessions with pre- and post-

intervention questionnaires, the study measures the immedi-

ate and long-term impact of various strategies by third-

party neutrals on party attitudes and case outcomes.

Eliciting participant solutions had the broadest rangeof pos-

itive impacts. Greater percentage of time spent in caucus

was associated with negative outcomes. Reflecting had

short-term positive associations and neutral offering solu-

tions had long-term negative associations.

Alternative dispute resolution (ADR) has been shown to have significant benefits for small claims lit-

igants (Charkoudian, Eisenberg, & Walter, 2017; Hann & Barr, 2001; Maiman, 1997; Wissler,

1995). Less is known about the specific aspects of the ADR process that promote positive outcomes.

ADR processes such as mediation have been compared to “aspirin; it works, but we don't know

exactly how or why”(Wall & Chan-Serafin, 2009, p. 287).

Rigorous testing of ADR is difficult to do. Mediation has been described as “an art rather than a

science”with rigorous research “treated as a futile exercise or as hopelessly complex”(Slaikeu,

Culler, Pearson, & Thoennes, 1985, p. 55). ADR is a confidential and dynamic process that varies by

context, case type (Wissler, 2004), third-party neutral characteristics and interventions

(Charkoudian & Wayne, 2010; Wall, Dunne, & Chan-Serafin, 2011), and party attitudes, goals, and

behaviors (McEwen, 1999; Wall & Chan-Serafin, 2009).

Few studies examine authentic ADR sessions at the courthouse. Simulated processes may not

capture the unique, real-life interactions between disputants and third-party neutrals (Wall & Chan-

Serafin, 2009). Most ADR studies use postintervention surveys of neutrals or participants, without

Received: 4 June 2019 Accepted: 3 July 2019

DOI: 10.1002/crq.21264

Conflict Resolution Quarterly. 2019;37:101–121. wileyonlinelibrary.com/journal/crq © 2019 Wiley Periodicals, Inc. 101

controlling for pre-ADR case characteristics or party attitudes and without observation of the ADR

sessions (Goldberg, 2005; Goldberg & Shaw, 2007; Lim & Carnevale, 1990; McDermott & Obar,

2004). Such studies rely on parties' recall about what the neutral actually did and subjective percep-

tions about whether those techniques had any impact.

Many studies treat ADR like a “black box,”assuming that all neutrals do the same thing in the

same way. Yet, neutrals vary in their training and approach and the specific techniques used through-

out the ADR session (Charkoudian, de Ritis, Buck, & Wilson, 2009; Riskin, 2003). Many neutrals

identify with a particular framework—such as evaluative, facilitative, transformative, or inclusive

mediation—that guides their process choices and interventions, typically running along a continuum

of directive and settlement-focused to facilitative and relationship-focused (Riskin, 1996, 2003).

Comparing strategies across the literature is difficult to do because the definitions of ADR varies

widely (Charkoudian, 2012), and studies use different labels to describe various behaviors used by

the neutral (American Bar Association Section of Dispute Resolution, 2017).

Further complicating matters, neutrals often lack consistency between their professed framework

and their actual behaviors during the ADR process (Charkoudian et al., 2009; Kressel, Henderson,

Reich, & Cohen, 2012). For example, in an review of 27 civil mediation studies, mediators who self-

described their approach as “facilitative”employed the following “evaluative”strategies in up to one

third of cases: “evaluated the strengths and weaknesses of each side's case, suggested settlement

options, predicted the outcome, or assessed or recommended the settlement value of the case”

(Wissler, 2004, p. 64). Likewise, McDermott and Obar (2004) found that mediators in a program

billed as “facilitative”in fact used many evaluative techniques.

To address definitional inconsistencies and the disconnect between ADR theory and practice,

scholars recommend focusing on the specific ADR interventions that maximize benefits (Herrman,

Hollett, & Gale, 2006; Lande, 2004; Wissler, 2002). This study answers that call, moving away from

testing of a particular ADR framework or “style,”and isolating the impact of various strategies used

by neutrals across many different frameworks.

To account for the wide range of factors that complicate ADR research and isolate the impact of

specific interventions by the neutral on participants andcase outcomes, this study uses a comprehensive

quasi-experimental design, similar to that recommended by Herrman et al. (2006). The model includes

a range of inputs and considers four aspects: (1) conditions prior to the ADR process, including the

presession characteristics, beliefs, and attitudes of parties and neutrals; (2) the actual behaviors of both

parties and neutrals during the ADR session, captured through real-time behavior observation coding;

(3) parties' beliefs and attitudes and case outcomes immediately following the ADR session; and

(4) the long-term impact of the ADR process on party beliefs and attitudes and outcome compliance.

1

This research moves beyond theoretical debates about ADR approaches to measure the immediate

and long-term impact of particular interventions by the third-party neutral on party attitudes, the

probability and durability of settlements, and other case outcomes. The study also collects and con-

trols for a wide variety of participant demographic and case factors that could influence the outcome,

resulting in one of the most rigorous and comprehensive ADR studies to date.

The study uses pre- and post-ADR session questionnaires, together with live observation coding

of the behaviors of both the neutrals and participants during the ADR session at the courthouse. In

addition to examining which characteristics and strategies of the neutral affect the probability of

reaching agreements, the research goes further to measure the impact of observed neutral behaviors

against changes in participants' attitudes and on case outcomes, both immediately after the ADR ses-

sion and approximately 4 months later. The study was funded by the State Justice Institute, Grant

Number SJI-12-N-003.

102 CHARKOUDIAN ET AL.