the arbitrator’s decision typically is binding, but the dis-
putants determine that as well as other features of the
process by agreement. Mandatory court-connected arbi-
tration is nonbinding: The disputants may reject the arbi-
trator’s decision and proceed to trial de novo.If they accept
the arbitrator’s decision, it becomes a court judgment.
The arbitration hearing typically is held after discov-
ery has been substantially completed. Compared with a
trial, an arbitration hearing tends to be less formal and
to permit the broader admissibility of evidence. Court-
connected arbitration usually involves a single session
lasting several hours; private arbitration can involve
multiple daylong sessions spread over weeks. Arbitrators
are either lawyers or nonlawyers with expertise in the sub-
ject matter of the dispute. Although disputants often
attend arbitration hearings, their participation is limited
to providing evidence.
Mediationis a process in which a mediator, or some-
times a pair of mediators, facilitates the disputants’ dis-
cussion of issues and options to help them reach a
mutually acceptable resolution of their dispute. Accord-
ingly, disputant participation in the mediation process
and in determining the outcome is viewed as critical.
The mediator’s approach can vary with the setting, as
well as with the individual mediator’s preferences and
the nature of the particular dispute. Some mediators
view their primary objective as enabling the disputants
to better understand their own interests and the other
side’s perspective. Most mediators, however, do not con-
sider enhancing the disputants’ understanding as an
end in itself but as a means to helping them reach an
agreement that meets their needs.
Mediators differ in how actively they intervene
during the session: whether they focus the disputants’
discussion narrowly on the instant dispute and legally
relevant issues or expand it to include broader issues
and considerations and whether they help the dis-
putants assess various options or offer their own eval-
uation of the merits of the disputants’ positions and
proposals. The timing of mediation (e.g.,before a
claim is filed, shortly after filing, after discovery is
completed), the number and length of sessions, who
the mediators are (e.g.,lay people, mental health pro-
fessionals, lawyers), and whether the attendance of
the disputants’ lawyers is required or prohibited vary
with the setting and types of disputes.
Neutral case evaluationis used less frequently than
mediation. Following each lawyer’s brief presentation
of the case, the third party assesses the strengths and
weaknesses of each disputant’s position and facilitates
settlement discussions. The evaluator, who usually isa lawyer, also might offer an assessment of liability
and a valuation of damages, suggest a reasonable set-
tlement value, or predict the likely trial outcome to
facilitate settlement. If no settlement is reached, the
evaluator might explore ways to streamline pretrial
discovery and motions. Neutral case evaluation typi-
cally involves a single several-hour session that is held
relatively early during litigation and is attended by the
disputants and their lawyers.
Judicial settlement conferencesmay be conducted by
the judge assigned to the case or by another judge and
usually take the form of neutral case evaluation or nar-
row, settlement-focused, evaluative mediation. A settle-
ment conference typically involves a single session that
lasts several hours and is held when the case is essen-
tially ready for trial. Although some judges require dis-
putants to attend, usually only the lawyers are present
and participate in the discussions. Courts generally con-
sider judicial settlement conferences to be ADR, but
some commentators regard them as a component of tra-
ditional litigation.Empirical Field Research on ADR
Few general statements about the research findings can
be made that apply consistently across ADR processes,
settings, and dispute types. Even within the same
process and setting, the findings are mixed as to
whether ADR performs better than, or simply as well
as, litigation.
Most of the research has examined mediation and
arbitration in court-connected programs; few published
studies have examined other ADR processes or private
ADR. The primary data sources include court or ADR
program records and questionnaires completed at the
end of the session by disputants, lawyers, and neutrals.
Few studies have included observations of sessions
or long-term follow-up with disputants. Many studies
do not include a comparison group of non-ADR cases;
those that do seldom assign cases randomly to ADR
and non-ADR groups. Drawing conclusions across
studies is further complicated because different studies
use different non-ADR comparison groups: Some use
only cases settled via negotiation, others use only tried
cases, and still others include all disposition types.The Efficacy of ADR
In divorce, small claims, and community mediation,
from 50% to 85% of cases settle. In general jurisdic-
tion civil cases, from one fourth to two thirds of cases16 ———Alternative Dispute ResolutionA-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 16