New Bench Card Lists Top Reasons to Consider ADR in Each Case, and Also Best Practices

By Doug Van Epps, Director, Office of Dispute Resolution

Mediation is gradually replacing case evaluation as the default alternative dispute resolution (ADR) process in many courts.  It’s easy to see why.  SCAO’s studies have shown that mediation results in a case disposition rate of approximately 75 percent, compared to 22 percent for case evaluation. 

For parties, this means that they end up with a resolution that they’ve designed themselves in less time and frequently at less cost than remaining in the adversarial process.  For courts that schedule mediation prior to case evaluation, this means that there is a significant reduction in the number of cases to schedule for case evaluation, fewer panels to convene, and less paperwork to manage.

SCAO just published a bench card outlining key reasons to consider ADR in each case.  In addition to the potential time and cost savings, the following reasons are identified:

• A judge asking about ADR removes the fear many attorneys have of being the first to suggest mediation because they may be perceived as having a weak case.
• Parties are more likely to keep agreements reached through mediation.
• In cases involving parties who have an ongoing relationship, mediation can help resolve underlying issues that wouldn’t be considered by a court, as well as establish a future dispute-resolution mechanism.
• Even if parties don’t reach a complete agreement “at the table,” mediation can help narrow the legal and factual issues requiring continued litigation. 

The card also identifies some best practices arising out of courts’ experiences to date.  The practices include:

Consider ADR in all cases.

• Effective use of ADR allows parties to resolve their conflict in the least amount of time and at the lowest cost.  Use of ADR is also consistent with, and enhances, the key performance measures of public satisfaction and timeliness.  

Consult with parties as early as possible about the best process for their case.

• In an early case or scheduling conference, discuss which ADR process may be most appropriate for the case, when it should occur, and who the neutral service provider will be.

Have parties identify a mediator early in the case.

• Parties reaching agreement on who their mediator will be establishes maximum mediator credibility.  When selected early in the litigation, a mediator may be able to help parties remove obstacles to reaching full settlement of the case; for example, by helping parties negotiate discovery disputes.  Reminder:  judges are not to be involved in the selection of the neutral mediator unless requested by the parties in writing or on the record. 

Schedule mediation to take place before case evaluation.

• Mediation can be expected to dispose of approximately 75 percent of cases referred, significantly reducing the number of cases required to be set for case evaluation.
• Mediators report that it’s easier for parties to reach a settlement without the parties having a case evaluation award in hand. 

For additional information about a variety of ADR processes, see the Michigan Judges Guide to ADR Practice and Procedure.