I just read the recently-posted, to-be-published-somewhere empirical study of the use of ADR in the federal government in the late 1990s.

Entitled, Dispute Resolution and the Vanishing Trial: Comparing Federal Government Litigation and ADR Outcomes, the study’s authors include Lisa Bingham, Tina Nabatchi, Jeff Senger, and Michael Scott Jackman.

Their abstract reads:

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

I know Lisa and Jeff, they come with truly impeccable research credentials. I haven’t had a chance to dive into the details of their study yet, but I am confident it is methodologically superb.

Of course, no good study concludes without the authors or readers (or both) begging for more. In this case, for example, I’d be interested about what effects the last decade may have had on the dynamics they studied. Their dataset cuts off in 1998, and to be sure, we’ve seen a fair number of developments since then. And, as they acknowledge, their study does not endeavor to measure any of the effects of variation within dispute resolution methodologies. But it’s a wonderful and interesting contribution.

Michael Moffitt