Bringing Transparency and Accountability (with a Dash of Competition) to Court-Connected Dispute Resolution

Abstract

Among the various dispute resolution processes, mediation is the most widely institutionalized in American courts. As a result, this Article focuses primarily, although not exclusively, on the data collected and disseminated regarding court-connected mediation. The Article begins with a brief description of the institutionalization of mediation and other dispute resolution processes in the federal judicial system and in select U.S. state court systems. This narrative reveals substantial reference to the availability of mediation but a dizzying patchwork in terms of institutionalization and a significant lack of system-wide information in some states. The Article then focuses on the data that these courts collect and make publicly available regarding the extent of the use and effects of court-connected mediation. What do we know about the number of referrals to court-connected mediation? What do we know about the number of cases that actually mediate? What do we know about the effects of mediation, in terms of settlement and parties' perceptions of fairness? Except for data from a few pioneering federal district courts and the state courts of Florida, we do not know much. The Article then suggests what we ought to know about the use and effects of court-connected mediation, at least in terms of collecting data elements and reporting aggregated results. Finally, the Article urges that a constellation of international, domestic, and technological developments provide both legislators and courts with a unique opportunity to institutionalize the collection and publication of key metrics regarding court-connected mediation and court-connected dispute resolution more broadly.