When Ignorance Is Not Bliss: An Empirical Study of Litigants’ Awareness Of Court-Sponsored Alternative Dispute Resolution Programs

Abstract

State courts have been overburdened with litigants seeking civil justice in a system still recovering from the economic downturn of 2008. In many cases, alternative dispute resolution procedures can provide litigants with relief from the expense and waiting time associated with trial. However, such procedures provide little opportunity for justice to litigants who are unaware of their existence. The present study examines litigants’ ability to identify their court’s mediation and arbitration programs. Following the disposition of their cases, litigants from three state courts were asked whether their court offered mediation or arbitration. Although all litigants had cases that were eligible for both procedures through their court, less than one-third of litigants correctly reported that their court offered either procedure. Represented litigants were not significantly more likely to know about their court’s programs than their unrepresented counterparts. Litigants had more favorable views of their court when they knew it offered mediation (as opposed to being unsure whether the court offered it), but a similar result did not emerge for arbitration. The implications of these novel findings for litigants, lawyers, and courts are discussed.

Keywords: empirical, litigants, courts, 'alternative dispute resolution,' ADR, mediation, arbitration, litigants, ‘knowledge about ADR,’ survey empirical, litigants, courts, 'alternative dispute resolution,' ADR, mediation, arbitration, litigants, ‘knowledge about ADR,’ survey