Monday, October 15, 2007

Surprised by mediation statistics

I was surprised by the post More Statistics on the Differences between Arbitration and Litigation Procedures, Cost, Duration and Outcome on the Southern California Arbitration Mediation and Conflict Resolution Blog. For example:

Time and Cost Differences Between Arbitration and Litigation *

Employment claims take 650 to 720 days to be resolved in court, according to the National Center for State Courts. * The median time to resolve an employee dispute by arbitration is 104 days * the median cost of resolving employment disputes by arbitration is $870.

Sources: Consumer and Employment Arbitration in California: A Review of Website Data Posted Pursuant to Section 1281.96 of the Code of Civil Procedure California Dispute Resolution Institute, August 2004 and Examining the Work of State Courts, (1999-2000) National Center for State Courts

Outcome Differences Between Arbitration and Litigation: Arbitration & litigation final awards are essentially the same as court judgments * median monetary awards for successful claimants are greater in arbitration than in court—$100,000 in arbitration compared with $95,554 in court."

I suggest reading the full article. I have my doubts about arbitration but that doubt comes mostly from choice of law provisions where arbitration is to take place in a state far from Indiana. I am certain that works to the advantage of one of the parties -usually the one that is without the means to travel to the other state or hire out-of-state lawyers.

A few points that seem to escape the polling and studies, ADR does permit privacy to the parties denied by filing a lawsuit. I count that as an advantage for the business client.

From my experience in Indiana, there are two sources for delay:
  • First, most Indiana courts have criminal jurisdiction. Criminal cases take priority over any civil case (there is the constitutional right to a speedy trial). Civil trials get bumped from the court's calendar to make way for a criminal trial.
  • Second, there is the discovery phase of trial. I am sure discovery increases the cost of civil litigation. We lawyers like knowing everything we can about the opposition before trial begins - so we get documents, we do depositions, and we read and review all the information. Sometimes this phase becomes a sword rather than a shield as parties push depositions (which cost money due to paying court reporters) and dump documents in massive quantities. The movies A Civil Action and Class Action do a good job of showing this aspect of lawyering.
I admit that I am inclined to distrust perfect answers. I continue to see ADR as a tool for my clients but I will have doubts that it will solve all their problems.