Barriers to Attorneys’ Discussion and Use of ADR
Ohio State Journal on Dispute Resolution Vol. 19, p. 459, 2004
50 Pages Posted: 12 Dec 2010
Date Written: 2004
The present article reports the findings of an empirical study involving a survey of Arizona civil litigators that examined their voluntary discussion and use of ADR and the prevalence of factors thought to act as barriers to ADR use. Attorneys were asked about their knowledge of ADR processes, views of ADR on several dimensions, attitudes toward policies mandating ADR discussion and use, and the extent of judicial encouragement of ADR use. Most civil litigators discussed ADR with clients in most cases, but they were less likely to discuss ADR with opposing counsel and seldom did so early in the case. How frequently judges suggested the use of ADR was the factor most strongly related to how frequently attorneys discussed ADR with clients and opposing counsel and to how frequently they voluntarily used ADR. Attorneys’ knowledge and views of ADR played a smaller role in their ADR discussions and use, although the potential cumulative effect of these factors was substantial. The article concludes with a discussion of what the findings of the present study and other empirical studies suggest about the potential effectiveness of two approaches for increasing voluntary ADR use, namely expanding ADR education and mandating ADR consideration.
Keywords: alternative dispute resolution, mediation, empirical research
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