Article Summary: Lawyer Perspectives on ADR

Barbara McAdoo, Professor and Senior Fellow, Dispute Resolution Institute, Hamline University School of Law, analyzes lawyers' perspectives on the use of ADR in Minnesota in A Report to the Minnesota Supreme Court: the Impact of Rule 114 on Civil Litigation Practice in Minnesota. In addition, Barbara McAdoo and Art Hinshaw, Director of the Lodestar Dispute Resolution Program and Associate Clinical Professor at the College of Law at Arizona State University, perform a similar analysis of lawyers' perspectives on the use of ADR in Missouri in The Challenge of Institutionalizing Alternative Dispute Resolution: Attorney Perspectives on the Effect of Rule 17 on Civil Litigation in Missouri. Because lawyers are largely responsible for whether or not ADR is used in the civil context, the authors contend that empirical analysis of lawyers' perspectives on ADR provides insight into the effectiveness of ADR programs.

Minnesota's Rule 114

Minnesota's Rule 114, in effect since 1994, requires attorneys to consider ADR in all civil cases, to discuss ADR with their clients and opposing counsel, and to advise the court regarding the process they have selected, the neutral, and the timing of the particular ADR process. Under Rule 114, judges also have discretion to order parties into non-binding ADR, even when parties and counsel believe it would not be useful.

To evaluate the effectiveness of Rule 114, McAdoo conducted an attorney survey in 1996-1997. The survey was sent to 1,000 attorneys, of which roughly 74.8% responded. According to McAdoo, respondents generally viewed ADR processes favorably. For instance, 77.6% of Minnesota lawyers reported using ADR "more" since Rule 114 became effective, 45.6% "usually" or "always" found ADR to be a helpful tool for their cases, and 45.2% "sometimes" found ADR to be a helpful tool for their civil cases.

The respondents indicated that they use mediation because it helps to decrease litigation expenses (67.9%), helps parties to achieve settlement more often (57.4%), and provides a needed reality check for the opposing counsel or client (52.2%). Despite these perceived benefits, 63.4% of the respondents indicated "no change" in the timing of discovery during mediation and 68.3% indicated "no change" in the volume of discovery and pre-trial preparation for mediation cases.

In addition to analyzing perspectives on mediation, McAdoo also reviewed perspectives on other ADR processes, noting that the key reasons respondents chose to pursue non-binding arbitration were that they anticipate the court will order ADR (42.3%) and because it provides a reality check for opposing counsel or client (42.9 %). The key reasons parties chose binding arbitration were the potential for decreasing litigation expenses (58.2%) (lawyers with individual clients 65.9%; lawyers with commercial clients 53.4%) and because they are required by contract terms (37.0%) (lawyers with individual clients 25.7%; lawyers with commercial clients 52.7%).

Missouri's Rule 17

Missouri's Rule 17 gives judges the power to order a case to non-binding arbitration, early neutral evaluation, mediation, mini-trial, or summary jury trial, but permits litigants the opportunity to opt-out of such programs. In 2001, in an effort to assess the effectiveness of the rule the Missouri Supreme court asked McAdoo to conduct a survey of lawyers, similar to the Minnesota survey, in order to understand their perspectives of ADR processes, particularly mediation. The survey was sent to 398 attorneys and with an overall response rate of 58%, McAdoo and Hinshaw analyzed the results for the Missouri Supreme Court.

51% of the respondents reported using ADR processes more often after Rule 17 was revised in 1997, while 40% reported no change in their use of ADR. Nevertheless, lawyers appear to use ADR on an infrequent basis. 80% indicated that they use ADR in less than a quarter of their civil cases and only 3% indicated using it in more than half of their civil cases. Despite their selective use of ADR processes, the results indicate that many attorneys (90%) believe that ADR is at least "sometimes" a helpful civil litigation tool. Almost one-third of the respondents found ADR helpful enough that they would "usually" or "always" use it even if Rule 17 were repealed and another 55% would use it "sometimes" if Rule 17 were repealed.

Respondents reported that they chose mediation in order to save money (85%), speed settlement (76%), provide a reality check for the parties and opposing counsel (69%), and make settlement more likely (69%). According to McAdoo and Hinshaw, the survey results indicate that attorneys perceive that mediation practice does, in fact, help achieve these goals. 35% of the respondents indicated that their cases "usually" or "always" settle faster when using ADR and 48% reported that their cases "sometimes" settle faster. 36% of the respondents indicated that they "usually" or "always" saved money using ADR and 45% believed that they "sometimes" saved money using ADR. Additionally, 37% of the respondents reported increased settlement rates following the revisions of Rule 17.

Despite these positive responses regarding mediation, McAdoo and Hinshaw contend that ADR use may not reach its full potential given current levels of communication between lawyers and clients and lawyers and opposing counsel regarding ADR options. Roughly 16% of the respondents indicated that they hardly ever discussed ADR options with their clients and 15% indicated that they hardly ever discussed ADR options with opposing counsel, unless opposing counsel or the judge raised the issue. In addition, roughly 70% of the respondents indicated "no change" in the timing of discovery during mediation and 63% indicated "no change" in the volume of discovery and pre-trial preparation for mediation cases. According to McAdoo and Hinshaw, mediation has the potential, if used properly, to reduce the amount of discovery and pre-trial preparation.

Conclusion

In conclusion, both the Minnesota and Missouri studies confirm that lawyers think that using ADR saves both time and money and provides a reality check for their clients. Lawyers in both Minnesota and Missouri, however, report that the timing and volume of discovery and pre-trial preparation were not substantially affected by using ADR. McAdoo and Hinshaw conclude from the results of these studies that courts can provide the most effective ADR process by (1) educating lawyers, parties, and judges as to the ways mediation can reduce discovery in ADR, (2) developing a strategy to ensure that parties, lawyers, and judges understand the differences among the various ADR processes and when each is most appropriate, and (3) developing a data collection tool to ensure process effectiveness and satisfaction.

Bobbi McAdoo, A Report to the Minnesota Supreme Court: the Impact of Rule 114 on Civil Litigation Practice in Minnesota, can be found in 25 Hamline L. Rev. 401 (2002).

Bobbi McAdoo & Art Hinshaw, The Challenge of Institutionalizing Alternative Dispute Resolution: Attorney Perspectives on the Effect of Rule 17 on Civil Litigation in Missouri, can be found in 67 Mo. L. Rev. 473 (2002).