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Concerns and recommendations.

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Views on Rand’s CJRA Report
The Santa Monica, CaliJ:-based Rand Institute for &ilJustice released a major report on alternuti~iedispute resolution,
under thr CivilJustice Reform Act of 1990 on,Jan. 29. Somr
articlrs in, the legal press interpreted the report to say that it
showed empirical evidence that court ALlR didn’t work. CPR
Judicial Project Director Elizabeth Plafiinger discussed the risk
ofmisintrrpretation of the Rand studj in a National LawJournal ADR supplement March 24.
Since majorfunding and poliq recornmendations were being
formuluted this spring regarding ttir futurr offedrrul court ADR,
mrmbrrs of the CPRJudirialProject Advisory Council and other
ADR experts belimed it was necessary to issue a formal “statemrnt qf concerns ’’ regarding the Rand ADR study. The statement calls on decision,makers toformulate ADR policy basrd on
nfidl undrrstanding of the complex and nuunced Rand report
in ronjunction with other ALIR studies and exfjerience.
The March 14 CPR statement of concerns and recommendations apprars below, in the right column. It was issued under
the auspices of the CPRJudicial Project fg 3’2 fedrral judges,
.scholars and counsel. The statement was sent to frderal an,d
.stutejudges, legislators, and other ADR poliq makers. Estab
lished in 1985 4 the CPR Institutefor Dispute Resolution, the
CPR Judicial Project is a public poliry in,itiutive to examine
AIjR’s role in thejustice system. A listing ofsiLpatoriesapfirars
on pagr 73 at the end of the statement.
The statement i s accompanied below fg another commentary
on the Rand report from two NewJmq-based court ADR praclit ioners.
No Short Cuts
to Justice
Concerns and
Recommendations
I
By Sanford M. Jaffe and Linda Stamato
The Civil Justice Reform Act of 1990 required each federal district court to develop a case management program
to reduce cost and delay. It also required an independent
evaluation, which began in 1991, by the Rand Corp.’s Institute for Civil Justice.
Separate research studies were undertaken. The first
focused on case management arid ADK reforms in 10 pilot and 10 comparison districts. Another study examined
the implementation, costs and effects of mediation and
neutral evaluation programs in six pilot and comparison
federal district courts that had these programs in 1992’93.The latter piece of the Rand Report is titled, “An Evaluation of Mediation arid Early Neutral Evaluation Under
the (hilJustice Reform Act.” (Kakalik, Dunworth, Hill, et
al. 1996) It is the focus of this essay.
The results, to put it mildly, are deflating to many in
and around the dispute resolution community, especially
to those who believe in ADR as the solution for problems
of cost and delay. The results, frankly, also are disappointing-but not surprisingly so-because of the expectation,
even hyperbole, that frequently and, in our view, iiiappropriately, often is associated with dispute resolution. The
findings challenge on a subjective level as well, for they
seem to contradict practitioners’ direct experience arid
court officials who believe their programs lead them to
rent conclusions.
The key findings, in brief, are as follows: There is no
strong statistical evidence that mediation or neutral evalua(continued on following pagr)
Sanjbrd M . Jafle i s director and L i n d a Shmato is deputy dirrrtor of
thr Centerfor Negotiation and Cr1njlic.tResolution at Kutgers U n i ~ e r ,sity in Npru Brunsruirk, NJ. Both arr mrdiatorc.,sfircializing i n rom-
p k x rases.
The U S . Judicial Conference and the U.S. Congress are
beginning to assess the effects of the CivilJustice Reform
Act’s ambitious experiment in local procedural reform.
Civil Justice Reform Act of 1990, 28 USC 471-482. In the
area of ADR, the statute has been enormously successful
in encouraging innovation. By 1996, most federal district
courts had established o r authorized some form of ADR,
many at the initiative of local advisory groups of lawyers,
civic leaders arid court consumers established under the
statute. (For a comprehensive look at ADR development
in each of the 94 federal district courts under the CJRA,
sre Elizabeth Plapinger and Donna Stienstra, ADR and
Settlrnren,t in thr Frdprul District Courts: A Sourcrhook forJudges
nnd Z,ar~yers (Federal Judicial Center and CPK Institute
for- Dispute Resolution, 1996).)
I n considering the future of these ADR programs, decision makers have a vast amount of information, including
the recently released study by the Rand Institute for Civil
Justice of six ADK programs, “An Evaluation of Mediation
and Early Neutral Evaluation Under the Civil Justice Reform Act,” by James K. Kakalik, e t al. While the 450-page
Rand ADR study should inform policy making, we believe
the study’s summary conclusions risk misinterpretation
and may be used to support unwise actions. Our remarks
are directed at the Rand ADR study and d o not address
the larger Rand study of case management reforms under
the CJRA, “Implementation of the Civil Justice Reform
Act in Pilot arid Comparison Districts” (Rand 1996), by
James Kakalik e t al.
For these reasons, we offer the following concerns about
the Rand ADK research, along with recommendations for
ADR policy making. In large part, our analysis concurs
with the Rand researchers’ own cautious and candid pre(continurd on pcigr 72)
7 2 Alternative\
RAND Concerns
(continued from page 67)
sentation of their findings in the body
of the report. However, we are concerned that the important and nuanced conclusions of this ADR
research, along with ADR’s significant
contributions to litigants, the public
and the courts, risk being lost.
Rand’s ADR Findings
On Jan. 29, 1997, Rand released its
study of ADR programs developed by
six federal district courts under the
Civil Justice Reform Act of 1990. The
Rand researchers found “no strong
statistical evidence” that the four mediation and two neutral evaluation
programs, as implemented, either increased or decreased litigant costs or
the length of litigation.
Interpreting the equivocal cost and
delay findings, the Rand researchers
caution restraint. “It appears to us to
be too soon to draw any general con-
(:PR Institute for lhpirtt. Rcsolution
court ADR programs and considered
them procedurally fair. Specifically,
the lawyers reported that the ADR
practices were worthwhile generally,
helpful in their specific cases, and they
believed the court ADR services should
be continued.
Scope and Limitations
of the Rand Research
The Rand ADR findings must be understood in the specific context of the
six programs studied. The four inediation programs and two neutral evaluation programs examined were neither
exemplary nor representative of the 51
mediation and 14 neutral evaluation
programs now operating in the federal
district courts. The six ADR programs
were selected for study only because
they were statutory pilot programs and
had sufficient ADR caseloads to permit analysis. Moreover, the programs
studied were new and examined early,
before or as program refinements were
underway. In several of the courts studied, substantial revisions to the ADR
programs were made
after the Rand data
were collected.
Since ADR programs
vary in almost every aspect of design, implemen ta ti on, purpose
and quality, single arid
multicourt studies may
tell us very little about
how another court program-differently designed and operated-works.
More than a decade of court ADR research from Rand and other distinguished researchers confirms this
observation.
The ADR programs studied also varied vastly in quality. Several had significant design flaws, later corrected, at
the time they were studied. Indeed,
one of the four mediation programs
violated most of what is known about
building successful court ADR programs. The court required no training
for its lawyer-mediators, excluded
settlement-empowered clients and insurers from the mediations, and held
short and often perfunctory mediation
sessions.
Nor was the study environment opti-
The Rand study
reveals ‘a huge amount
of information about
successful and failed
court ADR programs.’
clusions about the effects of ADR,”
adding that the findings do riot support any “definitive policy recommendations.”The analysts acknowledge the
methodological difficulties of the
study, which focused on less than 10%
of the court ADR programs that now
exist in the federal district courts. They
suggest that the six programs “may
have had smaller effects [on cost and
delay] that could not be identified as
statistically significant in the sample of
cases studied” and urge “further experimentation and evaluation.” The
researchers also emphasize that institutional change takes time and that
“the evolution and fine-tuning of these
ADR programs is an ongoing process.”
The researchers report, however,
that the vast majority of lawyers and
litigants surveyed approved of the
VOI. 15. No. 5
Ma) 1997
mal. Almost all the study courts
changed their programs midstream to
correct earlier missteps or implemented so many case-management innovations simultaneously that researchers could not effectively control for
ADR effects. Comparable comparison
cases were also difficult to find in programs where the tough-to-settle cases
were routinely referred to mediation.
Other Pertinent Research
While Rand’s cost and delay findings
are consistent with some earlier research, other recent studies ofwell-designed court ADR programs have
found significant reductions in case
processing time and litigant costs. For
example, current data from the Western District of Missouri’s mediation
program, called the Early Assessment
Program, report E N cases terminating 29% faster than control group
cases, and savings per case of$10,000
based on attorney estimates. And importantly, the FederalJudicial Center’s
recent report to the U.S. Judicial Conference Committee on Court Administration a n d Case Management
documents significant cost and time
savings in the Missouri court and in
the ADR programs in the Northern
District of California. (See Report to thr
Judicial Confuemr Committeeon Court Administration and Case Management: A
Study of the Fiue Demonstration Profframs
bGtablished lJn,derthe CivilJustice Reform
Act of 1770 (Federal Judicial Center,
Jan. 24, 1997), by Donna Stienstra et
al.) Earlier studies from the National
Center for State Courts and other researchers have also found cost and
time savings attributable to ADR and
related case management techniques.
Quality and Justice Values
Although the Rand study does not provide definitive answers on court ADR’s
effects on cost and delay, the researchers’ massive efforts reveal a huge
amount of information about successful and failed court ADR programs.
Most significantly, the Rand researchers underscore the critical importance
of careful program definition, structure and implementation, as well as
sufficient resources and staffing to
Vol. 15, No. 5
Mav 1997
deliver quality ADR services in the
courts. Policy makers should also assess other values informing ADR use
in the public justice system, such as its
capacity to increase public satisfaction
with and confidence in the courts.
Recommendations to the
U.S. Judicial Conference
and Congress
The Civil Justice Reform Act has resulted in important information from
Rand, the Federal Judicial Center and
other researchers which should inform
decision-making and program building for years to come. In the shortterm, however, as the U.S. Judicial
Conference a n d Congress begin to
formulate ADR policy, we believe three
recommendations bear repeating.
First, policy makers should evaluate
the success or failure of ADR development in the federal courts under the
Civil Justice Reform Act o n the basis
of a full and fair understanding of the
available empirical data and other research. The future of ADR programs
in the federal courts should not rest
o n misinterpretations of the Rand
ADR findings. ADR policy should be
made deliberately and with full consideration ofADR’s rich contributions
and potential for courts and litigants.
Second, while we await final word
on ADR’s impact o n cost and delay, we
know that well-designed a n d wellimplemented court ADR programs
offer litigants better quality solutions
to litigation and may increase public
confidence in and satisfaction with our
courts. Mixed cost a n d delay data
should not overshadow these importantjusticevalues. Indeed, further and
different kinds of research in these
areas is required.
Third, highquality ADR programs
need sustained support, professional
staffing, and other resources to achieve
long-term success and public legitimacy. While the courts have many
needs, full and sustained support for
ADR programs is essential to integrate
ADR processes effectively into a comprehensive justice system. We urge the
U.S.Judicial Conference and Congress
to provide the resources needed to
assure quality ADR programs in the
federal district courts.
6
CPR Institute for- Dispiire Kewlutiorr
Allel
IlI\1IVC\
Signatories to the Statement of Concerns
Regarding the Rand ADR Study
Howard J. Aibel
D. Marie Provine
Leboeuf, Lamb, Greene & Macrae
Professor, Syracuse University
Margery F. Baker
Robert D. Raven
President, National Institute for
Dispute Resolution
Morrison & Foerster
Paul J. Bschorr
Nancy Rogers
Dewey Ballantine
Dean and Professor, Ohio State
University School of Law
Hon. Dickinson Debevoise
Frank E. A. Sander
U.S. District Court for the District
of New Jersey
Professor, Harvard Law School
Joseph E. Geoghan
Exec. Vice President & General
Counsel, Union Carbide
Corporation
James F. Henry
Hon. William W Schwarzer
U.S. District Court for the
Northern District of California
Margaret L. Shaw
Wittenberg, Mackenzie & Shaw
President, CPR Institute for
Dispute Resolution
Chesterfield Smith
Susan Keilitz
Hon. Robert W. Sweet
Holland & Knight
Senior Research Associate,
National Center for State Courts
U.S. District Court for the
Southern District of New York
Kimberlee K Kovach
Hon. William H. Webster
Professor, University of Texas
School of Law
Richard H. Weise
Thomas D. Lambros
Former Chief Judge - U.S. District
Court for the Northern District
of Ohio; Special Counsel to
Bricker 8c Eckler
John F. Mcclatchey
Thompson, Hine & Flory
Craig A. McEwen
Milbank, Tweed, Hadley & McCloy
Senior Vice President and
Secretary, Motorola Inc.
Edwin J. Wesely
Winthrop, Stimson, Putnam &
Roberts
Hon. Lee R. West
U.S. District Court for the Western
District of Oklahoma
Professor, Bowdoin College
Clifford Whitehill-Yarza
Richard Mcmillan, Jr,
Senior Vice President & General
Counsel, Darden Restaurants,
Inc.
Crowell & Moring
Carrie Menkel-Meadow
Gerald R. Williams
Professor, Georgetown University
Law Center and UCLA Law
School
Professor, Brigham Young
University School of Law
Jean S. Moore
Jerome T. Wolf
Hogan & Hartson
Hon. Dorothy W. Nelson
U.S. Court of Appeals for the
Ninth Circuit
Sharon Press
Director, Florida Dispute
Resolution Center
Supreme Court of Florida
Sonnenschein Nath & Rosenthal
CPR Judicial Project Staff
Elizabeth Plapinger
Vice President and Director,
CPR Judicial Project & ADR
Ethics Project, CPR Institute for
Dispute Resolution
73
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