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In particular, Jennifer Shack (2003) notes that mediation can save time and money and improve the satisfaction of those using the court system, but only under certain conditions.
Shack (2003) notes that the type of mediation program used is important in seeing advantages over legal actions. She notes that while there has been a "tendency has been to equate one mediation program with another and to assume the effectiveness of them all" (p. 5), there are important differences in the effectiveness of different dispute resolution programs.
One advantage often noted for dispute resolution is that it provides an alternative to trial, thus saving both money and time. However, Stienstra and Willging (1995) note that dispute resolution is not used as an alternative to trial in many cases, at least in the federal court system. They note that "while ADR (alternative dispute resolution) methods are often thought of as alternatives to trial, the very small percentage of cases that are tried indicates that ADR procedures serve primarily as alternatives to traditional forms of pretrial dispute resolution and not as alternatives to trial" (p. 3).
Further, dispute resolution may not necessarily reduce time demands and costs, as compared to traditional legal actions. Stienstra and Willging (1995) note that "research findings are currently insufficient on the cost and time consequences of ADR (alternative dispute resolution).
While the neutrality of dispute resolution is often seen as an advantage, Stienstra and Willging (1995) note that in some cases this neutrality is called into question. Specifically, they argue that litigants may worry that judges cannot remain neutral, thus making litigants "reluctant to participate fully" (Stienstra and Willging, 1995, p. 12).
Similarly, the perceived fairness of mediation, often cited as a major advantage for dispute resolution over legal action, may be in question. Shack (2003) notes that the seventeen studies she examined did not agree if mediation "programs increased satisfaction and perception of fairness for parties who participated in mediation as compared to those who did not" (p. 2). However, she found that participant satisfaction did increase in cases of successful mediation (Shack, 2003).
Early screening of parties involved in dispute resolution may be an important step to maximizing the advantages of dispute resolution. This screening should include early education of attorneys and litigants as to the options for dispute resolution (Stienstra and Willging, 1995). Shack (2003) notes that litigant satisfaction with mediation varies depending on litigant perception of the cost, demographic makeup of litigants, timing of referral, and willingness to try mediation.
The effectiveness of alternative dispute resolution depends largely upon choosing the correct method of resolution for a specific scenario. In particular, using several types of dispute resolution in a specific case may be detrimental to a satisfactory outcome. Stienstra and Willging (1995) note "the use of multiple ADR (alternative dispute resolution) procedures in a single case can be duplicative and unnecessarily costly and should not generally be imposed on parties" (p. 11).
Further, given Shack's (2003) note that the effectiveness of mediation programs differs, it is important to carefully select the type of dispute resolution employed. Careful selection of the type of program that is used may help dramatically increase the effectiveness of using dispute resolution.
In conclusion, effective alternative dispute resolution depends on a careful study of several factors. When these factors are considered and taken into account, dispute resolution can have many clear advantages, including saving money, time, and increasing litigant satisfaction. Factors such as early screening, eliminating extraneous forms of resolution, and a careful section of the method of dispute resolution play an important role in successful alternative dispute resolution.
Canadian Human Rights Commission. 2004. Alternate Dispute Resolution. Accessed October 12, 2005. http://www.chrc-ccdp.ca/adr/default-en.asp
Center for Analysis of Alternative Dispute Resolution Systems. What You Need to Know about Dispute Resolution: The Guide to Dispute Resolution Processes. Accessed October 12, 2005. http://www.caadrs.org/downloads/draftbrochure.pdf
Legal Information Institute. Alternative dispute resolution (adr): an overview. Accessed October 12, 2005. http://www.law.cornell.edu/topics/adr.html
Shack, Jennifer. 2003. MEDIATION CAN BRING GAINS, BUT UNDER WHAT CONDITIONS? Originally published in Dispute Resolution Magazine, Volume 9, No. 2, Winter 2003. Accessed October 12, 2005. http://www.caadrs.org/studies/MedStudyArticle.htm
Stienstra, Donna and Willging, Thomas E. 1995. Alternatives to Litigation: Do They Have a Place in the Federal District Courts? Federal Judicial Center. Accessed October 12, 2005.…[continue]
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