FOI Donna Shestowsky (UC Davis) has a forthcoming piece in the Harv. Neg. L. Rev. entitled When Ignorance Is Not Bliss: An Empirical Study of Litigants’ Awareness of Court-Sponsored Alternative Dispute Resolution Programs.  She gave a talk about her findings in this paper at the Court Connected portion of last week’s ABA Dispute Resolution Spring Conference.  According to the press release issued by her school (btw – law schools really issue press releases for artices?  Bravo UC Davis):

“The findings from this study raise serious questions about whether plaintiffs and defendants understand what procedures are available to them, and how meaningfully they participate in decisions about how to handle their legal conflicts,” said Donna Shestowsky, a UC Davis professor of law who is the report’s author.

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“The study suggests that courts should invest resources to ensure that litigants know about their procedures. By making these efforts, litigants might be more apt to consider using the programs in which the courts have already invested, and give courts the credit they deserve,” said Shestowsky.

Shestowsky’s project is the first known multijurisdictional study to explore how civil litigants assess procedures at various points of time during the same lawsuit.

Here’s the abstract from SSRN:

State courts have been overburdened with litigants seeking civil justice in a system still recovering from the economic downturn of 2008. In many cases, alternative dispute resolution procedures can provide litigants with relief from the expense and waiting time associated with trial. However, such procedures provide little opportunity for justice to litigants who are unaware of their existence. The present study examines litigants’ ability to identify their court’s mediation and arbitration programs. Following the disposition of their cases, litigants from three state courts were asked whether their court offered mediation or arbitration. Although all litigants had cases that were eligible for both procedures through their court, less than one-third of litigants correctly reported that their court offered either procedure. Represented litigants were not significantly more likely to know about their court’s programs than their unrepresented counterparts. Litigants had more favorable views of their court when they knew it offered mediation (as opposed to being unsure whether the court offered it), but a similar result did not emerge for arbitration. The implications of these novel findings for litigants, lawyers, and courts are discussed.

Art Hinshaw is a Clinical Professor of Law and the Director of the Lodestar Dispute Resolution Program at ASU Sandra Day O'Conner College of Law. His research and teaching interests focus primarily on mediation and negotiation, often bridging ADR theory and practice. He is an avid writer and contributor to ADR Prof Blog.