Court ADR

The Roots of Court ADR

The dispute resolution field has deep roots in the courts dating back to Professor Frank Sander’s proposal for a multi-door courthouse at the Pound Conference in 1976. The widespread popularity and growth of mediation and dissatisfaction in many quarters with the traditional legal process resulted in the proliferation of court-connected and court-affiliated mediation programs (hereinafter, court mediation) throughout the 1980s and beyond. Mediation, unlike the adversarial system, provided disputants with a confidential, voluntary process in a comparatively informal atmosphere in which a mediator could help parties understand one another’s interests, listen to each other, and negotiate their own agreement, often one that met the needs of both parties. Mediation programs were developed to address a number of substantive areas ranging from small claims, housing and juvenile cases to family, large civil litigation and bankruptcy.

Around the time of the Pound Conference, family court service agencies began to provide mediation services. Court staff members were trained as mediators beginning with a pilot program in the Los Angeles Conciliation Court in 1973. In 1981 California became the first state to mandate mediation for all parents in dispute over child custody, and within a decade family mediation had spread throughout the country.

Challenges Stemming from the Institutionalization of Court ADR

As the use of court mediation grew, concern was expressed by some that the underpinnings of mediation – in particular self-determination and party involvement – were becoming lost in institutionalization, citing examples of mediators using highly directive practices, distributive rather than integrative negotiation approaches, and in some instances coercing parties into agreements. Whether this is attributable to high volume, difficult cases, institutional pressure to produce mediated agreements, or the impact of the dominant legal culture, these practices may endanger the fundamental benefits of mediation.

In recent years several factors have challenged court mediation programs. Growing caseloads, an increasing number of pro se and non-English speaking litigants, and economic pressures on court agencies have severely restricted the amount of time available to conduct mediation.

Court System Responses

Some courts have responded with creative initiatives developing innovative processes or differentiated case management systems reminiscent of the original multi-door courthouse concept. In other cases there have been staff layoffs, adding multiple job responsibilities onto fewer individuals and shutting down programs. As court programs address these challenges there is limited sharing of information and ideas, in part because many program administrators are focused on saving their own programs. In particular, there has been little cross-fertilization between family mediation programs and their civil counterparts. Over the last quarter-century these programs have largely developed in parallel universes as evidenced, e.g., by different research on them, separate professional associations and different standards of practice. However, as noted by Professor Nancy Welsh (See, e.g., You’ve Got Your Mother’s Laugh: What Bankruptcy Mediation Can Learn from Family and Divorce Mediation, ABI Law Review, Vol. 17) there is a great deal that those in different sectors can learn from one another’s experience.

Furter Reading

Frank Sander, Varieties of Dispute Processing, Address Before the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (Apr. 7-9, 1976), in 70 F.R.D. 79, 111 (1976).

Brown, D. G., Divorce and Family Mediation: History, Review, Future Directions. FAM. CT. REV., 20: 1–44 (1982).

McIsaac, H. (1981), Mandatory Conciliation Custody/Visitation Maters: California’s Bold Stroke. Fam. Ct. Rev., 19: 73–76

McIsaac, H., Court-Connected Mediation, Family Court Review, 21: 49–56, (1983)

McIssaac, Hugh, Mediation of Child Custody and Visitation Disputes: Transcripts from the Vallambrosa Retreat

Louise Phipps Senft & Cynthia A. Savage, ADR in the Courts: Progress, Problems and Possibilities, 108 Penn St. L. Rev. 327 (2003).

Bobbi McAdoo & Nancy Welsh, Look Before You Leap and Keep on Looking: Lessons from the Institutionalization of Court-Connected Mediation, 5 Nev. L.J. 399 (2005)

Wilma J. Henry et al, Parenting Coordination and Court Relitigation: A Case Study, 47 Fam. Ct. Rev. 682 (2009).

Sharon Press, Symposium, Institutionalization: Savior or Saboteur of Mediation? 24 Fla St. U. L. Rev. 903 (Summer 1997).

Sharon Press, Institutionalization of Mediation in Florida: At the Crossroads, 108 Penn St. L. Rev. 43, 56-57 & n.94 (2003).

James Alfini et al., What Happens When Mediation is Institutionalized?: To the Parties, Practitioners, and Host Institutions?, 9 Ohio St. J. on Disp. Resol. 307, 316-17 (1994).

Sharon Press, Building and Maintaining a Statewide Mediation Program: A View From The Field, 81 Ky. L. J. 1029 (1993).

Leonard Riskin and Nancy Welsh. Is That All There Is: The Problem in Court Oriented Mediation. 15 George Mason Law Review 863 (2008).

Welsh, Nancy. I Could Have Been a Contender: Summary Jury Trial as a Means to Overcome Iqbal’s Negative Effects on Pre-Litigation Communication, Negotiation and Early, Consensual Dispute Resolution. 114 Penn State Law Review 1149 (2010).

Welsh, Nancy. Stepping Back Through the Looking Glass: Real Conversations with Real Disputants About Institutionalized Mediation and its Value. SSSRN Link:

Welsh, Nancy. The Place of Court-Connected Mediation in a Democratic Justice System, 5 Cardozo Journal of Conflict Resolution 117 (2004)

Welsh, Nancy. Making Deals in Court-Connected Mediation: What’s Justice Got To Do With It?, 79 Washington University Law Quarterly 787 (2001).

Bobbi McAdoo & Art Hinshaw, The Challenge of Institutionalizing Alternative Dispute Resolution: Attorney Perspectives on the Effect of Rule 17 on Civil Litigation Practice in Missouri, 67 Missouri Law Review 473 (2002).

Roselle Wissler, Bobbi McAdoo & Nancy Welsh, Institutionalization: What Do Empirical Studies Tell Us About Court Mediation? 9 Dispute Resolution Magazine 8 (2003).

Bobbi McAdoo & Nancy Welsh, Court-Connected General Civil ADR Programs: Aiming for Institutionalization, Efficient Resolution and the Experience of Justice, ADR Handbook for Judges, American Bar Association (2004).

Is ADR Meeting the Goals of the Pound Conference?

Bobbi McAdoo, All Rise, the Court is in Session: What Judges Say About Court-Connected Mediation, 22 Ohio St. J. on Disp. Resol. 377 (2007).

Wayne D. Brazil, Should Court-Sponsored ADR Survive?, 21 Ohio St. J. on Disp. Resol. 241 (2006).

Wayne D. Brazil, Court ADR 25 Years After Pound: Have We Found A Better Way?, 18 Ohio St. J. on Disp. Resol. 93 (2002)

Bobbi McAdoo, A Mediation Tune Up For the State Court Appellate Machine, 2010 J. Disp. Resol. 327 (2010).

Deborah R. Hensler, Suppose It’s Not True: Challenging Mediation Ideology, 2002 J. Disp. Resol. 81, 98 (2002).

Andrea Schneider et al., The Next Frontier is Anticipation: Thinking Ahead About Conflict to Help Clients Find Constructive Ways to Engage in Issues in Advance, 25 Alternatives to High Cost Litig. 99 (2007).

Issues of Self-determination and Party Involvement Related to Institutionalization

Nancy Welsh, The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization, 6 Harv. Negot. L Rev. 1 (2001).

Welsh, Nancy, Disputants’ Decision Control in Court-Connected Mediation: A Hollow Promise, Without Procedural Justice, 2002 Journal of Dispute Resolution 179 (2002)

Chapters from Divorce and Family Mediation: Models, Techniques, and Applications (Folberg, Milne & Salem)

a. Chapter 18 – Court-Based Mandatory Mediation: Special Considerations, Isolina Ricci
b. Chapter 19 – Reconciling Self-Determination, Coercion, and Settlement in Court-Connected Mediation, Nancy A. Welsh

Stephan Landsman, Nothing for Something? Denying Legal Assistance to Those Compelled to Participate in ADR Proceeding, 37 Fordham Urb. L.J. 273 (2010).

Limited Resources and Growing Caseloads
Hugh McIsaac, A Response to Peter Salem’s Article “The Emergence of Triage in Family Court Services: Beginning of the End for Mandatory Mediation,” 48 Fam. Ct. Rev. 190 (2010).

John Lande, How Much Justice Can We Afford?: Defining the Courts’ Roles and Deciding the Appropriate Number of Trials, Settlement Signals, and Other Elements Needed to Administer Justice 2006 Journal of Dispute Resolution 213 (2006).

Jennifer Shack, Efficiency, Mediation in Courts Can Bring Gains But Under What Conditions ?, 9 Disp. Resol. Mag. 11, 11 (2003).

Research -Based Possibilities for the Future

Roselle L. Wissler, The Effectiveness of Court-Connected Dispute Resolution in Civil Cases, 22 Conflict Resol. Q. 55, 67-70 (2004)

Hon. Leonard Edwards, Comments on the Miller Commission Report: A California Perspective, 27 PACE L. REV. 627, 628, 656 (2007).

Nancy A. Welsh, You’ve Got Your Mother’s Laugh: What Bankruptcy Mediation Can Learn from the Her/History of Divorce and Child Custody Mediation, 17 Am. Bankr. Inst. L. Rev. 427, 427-28 (2009).

SSRN Link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1626394

John Lande, Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007),

John Lande, Focusing on Program Design Issues in Future Research on Court-Connected Mediation, 22 Conflict Resolution Quarterly 89 (2004),

John Lande, Improving Mediation Quality: You, Too, Can Do This in Your Area, 26 Alternatives to the High Cost of Litigation 89 (2008).

John Lande, Doing The Best Mediation You Can, 14 Dispute Resolution Magazine 43 (Spring/Summer 2008).

Andrew Schepard, Comment, Kramer vs. Kramer Revisited: A Comment on the Miller Commission Report and the Obligation of Divorce Lawyers for Parents to Discuss Alternative Dispute Resolution with Their Clients, 27 Pace L. Rev. 677 (2007)

Leonardo D’Urso & Christopher Honeyman, The Two Tracks Model: Why Doesn’t Dispute Resolution Always Take Off and What Can Be Done About It? (Forthcoming 2012 in CPR’s “Alternatives”)

Howe, W. and McKnight, M. (1995), OREGON TASK FORCE ON FAMILY LAW. Family Court Review, 33: 173–181

ADR and Unbundled Legal Services: Economic Crisis Creates New Opportunities. An Essay by David P. Levin,

J. Alfini & Catherine G. McCabe, Mediating in the Shadow of the Courts: A Survey of the Emerging Case Law, 54 Ark. L. Rev. 171, 180 (2001).