Alternative Dispute Resolution in Civil Justice Systems (American Legal Institutions)

285 Pages·2002·1.41 MB·English

by  Roger E. Hartley

American Legal Institutions
Recent Scholarship
Edited by Eric Rise
A Series from LFB Scholarly
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Alternative Dispute Resolution
in Civil Justice Systems
Roger E. Hartley
LFB Scholarly Publishing LLC
New York 2002
Copyright © 2002 by LFB Scholarly Publishing LLC
All rights reserved.
Library of Congress Cataloging-in-Publication Data
Hartley, Roger E., 1969-
Alternative dispute resolution in civil justice systems / Roger E.
Hartley.
p. cm. -- (American legal institutions)
Includes bibliographical references and index.
ISBN 1-931202-36-2 (alk. paper)
1. Dispute resolution (Law)--Georgia. I. Title. II. Series.
KFG560.3 .H37 2002
347.758'09--dc21
2002008584
ISBN 1-931202-36-2
Printed on acid-free 250-year-life paper.
Manufactured in the United States of America.
Table of Contents

ACKNOWLEDGEMENTS vii

INTRODUCTION ix

1: TRIAL COURTS 1

2: RESEARCH FRAMEWORK AND STUDY SITE 29

3: CIVIL JUSTICE IN MOUNTAIN COUNTY 47

4: CIVIL MEDIATION IN MOUNTAIN COUNTY 87

5: THE IMPACT OF MEDIATION ON CASE
PROCESSING IN HALL COUNT 123

6: MEDIATION, CIVIL JUSTICE, AND
COURT ACTORS 159

7: CONCLUSION 199

NOTES 211

BIBLIOGRAPHY 221

APPENDICES 241

A: CIVIL AND MEDIATED CASE CODESHEET 241

v
vi Contents
B1: ATTORNEY INTERVIEW SCHEDULE 253

B2: ATTORNEY/MEDIATORINTERVIEW
SCHEDULE 257

B3: JUDGE/ADMINISTRATOR INTERVIEW
SCHEDULE 261

B4: MEDIATOR INTERVIEW SCHEDULE 265

INDEX 269
Acknowledgements

This book was the result of a great deal of fieldwork that necessitated the
help of a number of individuals. First, I am grateful for the support of the
National Science Foundation’s Law and Social Sciences Section grant
number 96-34453 for funding the costs of this research. Additional
financial support came from the University of Georgia’s Franklin College
of Arts and Sciences Distinguished Graduate Fellowship and from
Roanoke College. I am also grateful for the time and access granted to me
by the court and mediation officials of “Mountain County.” Thanks also
go to the following individual, Dr. Herbert Kritzer, Dr. Susan Brodie
Haire, Dr. Susette Talarico, Douglas Yarn, Dr. Margaret Herrman, Dr.
Arnie Fleischman, Dr. Robert Grafstein, Dr. Herbert Jacob, Dr. Stephen
Wasby, and Dr. Gerald McDermott, for commenting on early drafts of this
work. Finally, I would like to thank Karen Wilson, Heidi Hanrahan, and
Helen Colosimo of Roanoke College and my research assistant Paul
Francis at the University of Arizona for their technical and research
assistance. I also appreciate the help of my publisher Leo Balk and the
series editor, Dr. Eric Rise, for their interest and work on this manuscript.
Finally, I dedicate this book and the years of work within to my loving
wife Melissa for her sacrifice and support both emotionally and
financially.
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Introduction

A controversial policy debate has emerged in the United States
surrounding the issue of civil litigation. Civil courts are viewed by some
as severely crowded, especially with personal injury suits. The perception
of this crisis in the civil justice system has been supplemented by
arguments that juries have encouraged the influx of cases by awarding
huge damages to plaintiffs. While some recent studies dispute claims of a
civil litigation crisis (see Galanter, 1983; Eisenberg and Henderson, 1992;
and Eaton and Talarico, 1996), the debate itself has led to widespread
efforts to reform the tort system in particular (e.g., caps on damages) and
state civil justice systems in general (e.g., efforts at alternative dispute
methods).
These reform efforts have long generated interest among legal
scholars and more recently have drawn the attention of social scientists.
In political science, "public law" scholars have called for more research on
trial courts generally and civil courts particularly (see Shapiro, 1993;
Jacob, 1991). Until recently, the study of civil law has generated little
interest, in part, because of its "private" law status (Dunn et. al., 1995).
However, with the declining viability of the public/private distinction and
with the political debate surrounding court reforms, new questions have
attracted the attention of law and judicial process scholars.1 Of these, the
effect of institutional changes on existing court systems and processes
raises interesting questions. In this study, attention is directed to civil
courts and one popular institutional change, namely, alternative dispute
resolution (ADR). Among the reforms enacted to relieve state civil justice
systems is court-connected (or annexed) alternative dispute resolution
(ADR). These programs are designed to encourage or mandate mediation
and/or arbitration of cases before they reach trial. To date, government-
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