Empirical Studies of ADR: The Baseline Problem of What ADR is and What it is Compared to

Abstract:     
This chapter in the forthcoming Oxford Handbook of Empirical Legal Studies reviews key issues in the empirical study of "alternative" dispute resolution processes, including both descriptive and comparative empirical studies and evaluations of negotiation, mediation, arbitration, consensus building, facilitative and other hybridized processes, such as regulatory negotiation and rule-making, and some instances of deliberative democracy. Problems of definition, dynamism of the processes studied, shifting boundaries of public and private processes, and the inability to compare "like" cases in different processes are explored. Because some processes are conducted in private it is difficult to rigorously study them, either descriptively or comparatively. The issue of what a "baseline" measure is for evaluating comparative processes is explored and problematized. As both civil and criminal justice systems explore a variety of reforms and the pressure to empirically evaluate different processes becomes important for scholars, practitioners and policy makers, it remains difficult to have confidence in studies which lack boundary clarity. There are advantages and disadvantages in both aggregate data studies and more in-depth limited case studies of different processes. In an era of increased "process pluralism" in both domestic and international law, the problem of measurement and evaluation of different processes remains important, if difficult, to master.

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