The Challenge of Institutionalizing Alternative Dispute Resolution: Attorney Perspectives on the Effect of Rule 17 on Civil Litigation Practice in Missouri
Missouri Law Review, Vol. 67, p. 473, 2002
121 Pages Posted: 7 Jul 2009 Last revised: 17 Aug 2011
Date Written: 2002
Most state courts now have Alternative Dispute Resolution ('ADR') programs in place to assist with the settlement of cases filed in court. The result is that ADR has become something of a routine part of the civil litigation process. For ADR to play an important role in our judicial system, policy makers need to know what is happening in practice. One approach to evaluating ADR programs, taken by the authors of this report, is to look at the program through the eyes of practicing litigation attorneys.
In 1997 the Missouri Supreme Court revised its civil (non-family) ADR rule, Rule 17, to give individual judges the power to order cases to ADR. One of the primary reasons for the revision was to increase the use of what was seen as a worthwhile but underutilized rule. In an effort to evaluate the revised rule and its effects, the Missouri Supreme Court commissioned the authors to conduct an extensive attorney survey to assess when and why lawyers choose to use ADR, especially mediation; what ADR's effects are on discovery practices; what overall effects the choice of ADR has on the litigation process; and how and when judges get involved in choosing ADR. This report, published in May 2002 by the Missouri Supreme Court, details the answers Missouri lawyers gave to these important questions and provides important evaluative information for the emerging national picture of court-connected ADR. Among other findings, the picture of specific mediation practices that emerges is one of a mix of facilitative and evaluative techniques, with attorneys having a clear preference for the evaluative aspects of mediation.
Keywords: alternative dispute resolution, mediation, litigation process
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