Federal Litigation v. ADR

Lisa Bingham (Indiana - Bloomington School of Public & Environmental Affairs) (photo above), Tina Nabatchi (Syracuse), Jeffrey Senger (Dep't Justice), and Michael Jackman (Indiana - Bloomington School of Public & Environmental Affairs) have just posted on SSRN their article Dispute Resolution and the Vanishing Trial: Comparing Federal Government Litigation and ADR Outcomes.  Here's the abstract:

This study compares litigation and alternative dispute resolution (ADR) in civil cases handled by Assistant United States Attorneys (AUSAs) during the period 1995 to 1998. The findings indicate that that use of ADR can be an efficient and effective procedural solution to the problems of time and cost in the justice system without sacrificing the quality of macrojustice. When ADR was used, 65% of cases settled (only 29% of cases settled when it was not used). Significantly more cases settled when ADR was voluntary than when it was mandatory (71% vs. 50%), and tort cases settled with more frequency than employment discrimination cases (73% vs. 60%). When using ADR, AUSAs subjectively estimated that the process saved significant time and money. AUSAs spent an average of $869 in neutral fees and estimated that the process saved $10,735 in litigation expenses per case. AUSAs spent an average of 12 hours preparing for ADR and 7 hours in the ADR process per case, which they estimated saved 88 hours of staff time and 6 months of litigation time per case. Analyses of various macrojustice outcomes show that ADR outcomes were not significantly different from litigated outcomes, indicating that the process was neutral, favoring neither private parties nor the government. While these statistics are descriptive, a final analysis shows that the earlier a case is referred to ADR, the shorter its time to disposition. In sum, the study provides a better picture of how ADR is used by the government in federal court cases, and suggests that ADR has the potential to improve dispute processing without sacrificing the quality of justice.

Although the ADR settlement rate for employment discrimination cases lagged the settlement rate for other types of cases, it nonetheless exceeded by nearly a factor of two the settlement rate for cases in which ADR was not used.  This article provides strong empirical support for using ADR in a wide variety of cases, including employment discrimination cases.

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