ALTERNATIVE DISPUTE RESOLUTION IN CIVIL JUSTICE SYSTEMS by Roger E. Hartley.

Vol. 13 No. 1 (January 2003)

ALTERNATIVE DISPUTE RESOLUTION IN CIVIL JUSTICE SYSTEMS by Roger E. Hartley. New York: LFB Scholarly Publishing LLC, 2002. 272 pp. Cloth $70. ISBN 1-931202-36-2

Reviewed by Paul Parker, Social Science Division, Truman State University. Email: parker@truman.edu

While the study of criminal courts is in its third generation, the macro study of civil courts as a system is just beginning (p. 25). Hartley seeks to remedy this imbalance, asking the interesting and important question: how does the introduction of a new set of legal practices and institutions (mediation) affect a broader set of legal practices and institutions (the civil justice system)? Unfortunately, a relatively unwelcoming text together with underdeveloped literature pertaining to this case study, will likely reduce the audience that engages the question through this book.

The 209 pages of text are organized into seven chapters. In the first, Hartley argues that scholars have devoted too little attention to studying civil trial courts as an interrelated system. Further, the case is made that recent reforms creating alternative dispute resolution programs, or ADR, provide an opportunity to begin to remedy this deficiency. As it happens, in the early 1990s, “Mountain County,” Georgia, adopted a civil mediation program; in Chapter Two, this research site and the “Research Framework” are laid out. “Mountain County” is one of 15 counties that comprise a Georgia Judicial district; the relatively small size (under 100,000), and predominantly rural and close-knit nature of the county provide the basis for the author’s later speculation about a distinctive local legal culture.

Methodologically, the research framework includes qualitative and quantitative data analysis (caseloads, interviews) regarding the operation of the civil justice system and this mediation program. Deciding which data are relevant to the study is driven by the theoretical framework of new institutionalism. The rational/public choice and the historical/interpretivist schools of new institutionalism are presented briefly and the debate between them termed “too simple” (p. 34). Instead Hartley argues for a variant of institutionalism drawn from Grafstein (1992) and Sproule-Jones (1993), who urge researchers to focus more on “institutional realism” and “rules-in-use,” respectively. The upshot is that to understand institutions like mediation, we should not study legislative intent, or intent of participants, or the form of the new institution. Instead, we should study the behavior of people who operate within the institution: “Since individuals are imbedded in institutions and institutions are real, the behavior of individuals may not always be constrained, but might be, in fact, freed by institutions” (p. 35). The freedom we seem to see in this case study is the freedom of legal elites to use ADR when or how it suits them, thereby frustrating the ostensible goals of reformers.

Chapter Three presents a profile of “Civil Justice in Mountain County.” More than half of the chapter’s 40 pages are devoted to tables on case filings, case types, case trends, number of litigants, litigant type, number of attorneys, attorney types (i.e., pro se vs. private; single shot vs. repeat player; insider vs. outsider), participation of judges, pre-trial actions, post-trial actions, case disposition types, and case processing times. Not surprisingly, typical cases involve individuals with private attorneys, who file a Contract/Commercial, Domestic, or Tort case that ends in settlement or default. Chapter Four follows with near identical treatment of “Civil Mediation in Mountain County.” Here we see that few cases were ever referred to mediation (3.6% of caseload over the six years studied, predominantly domestic), and that there is little evidence of the efficiencies touted by ADR proponents. Indeed, mediated cases take up more time when measured by pretrial actions or hearings, but “the extremely small proportion of cases referred can have only minimal impact on civil court case processing” (p.130).

In Chapter Five, the author pursues “The Impact of Mediation on Case Processing” further through a “simple interrupted time series analysis – three years before and after the mediation program began in 1992” (p.123). Hartley concludes, “When mediated cases are compared against the average civil case, the arguments of ADR proponents do not hold water. Mediated cases do not exhibit lower workloads, do not minimize caseloads, do not process quicker, and do not have lower trial rates. However, mediated cases do have higher settlement rates overall” (p.142). From this last finding, Hartley concludes that mediation is serving an important function: more complex or difficult domestic cases are being removed from the general civil justice system, which “may have an impact on general civil case disposition” (p.143).

In Chapter Six the author presents results of interviews with several judges, attorneys, and mediators familiar with the Mountain County system, who were asked how they viewed the civil justice system and the adoption and operation of mediation. The reader may not be surprised to find that in a small jurisdiction, civil justice is governed by consensual norms rather than adversarial behavior, nor that judges and lawyers “coopted mediation in order to control and regulate its practice” (p.196). It is interesting to note that participants thought mediation led to earlier settlement, and allowed both attorneys and clients to profit financially. In the short conclusion that is Chapter Seven, Hartley returns to the new institutionalist literature to discuss this ADR reform, and his finding that positive benefits of mediation extolled by reformers were not realized, although some collateral benefits were. Here, Hartley again rejects the rational choice and historical/interpretivist approaches, preferring to apply the “rules in use” perspective developed earlier. The central claim is that the local legal elites were “reluctant partners” in the mediation program, so judges underutilized it, and attorneys coopted it for their own ends.

Hartley has done a fine job asking, and attempting to answer, how a mediation program operates within a local civil justice system. Additionally, the neo-institutionalist approach appears to provide a useful framework for approaching this question. Despite its strengths in conception, I would be reluctant to recommend the book for its contributions to our understanding of ADR or as a case study in neo-institutional analysis. Fundamentally, I think the author overreaches in trying to go beyond the solid contribution of how the introduction of mediation affected practices in a local system, to explaining why the system failed to achieve its ostensible goals. Many students of ADR will find the face-value acceptance of reformer’s claims of efficiency to be an act of misplaced faith, and thus the attempt to explain the failure to achieve the efficiency goals is a nonstarter. Indeed, for many social scientists the real puzzle is not why these programs fail to achieve efficiency goals, but why these programs continue to be sold on the grounds of efficiency (see, e.g., Silbey, 2002). But Hartley’s theoretical framework has driven the data collection, and from the perspective of “rules-in-use” new institutionalism, critical presentation of the adoption of mediation in Georgia is irrelevant: “Rules-in-use” focuses upon the behavior of actors who work within institutions, the local legal elites. Maybe, as Hartley argues, the mediation reform fails to achieve its efficiencies because of the behavior of local legal elites. Or maybe the reform was never meant to achieve efficiency. Perhaps these programs are sold on the basis of efficiency because efficiency is a line people will buy? From this point of view, maybe the historical /interpretivist school, which holds that “rules that are discernible might be designed to distract from the actual mission” (p. 34, citing Gillman, 1997) might provide some leverage on this issue, after all.

As noted, the other main contribution of the work is in providing thorough description of how a civil justice system operates before and after the adoption of a significant reform. However, I must add that the reader pays a price for this, as the book is not user-friendly. I am not familiar with this press, but apparently their services do not include a manuscript editor to help refine the prose, which often is choppy and repetitive, or to polish the text (for instance, the use of a pseudonym is puzzling when the author identifies “Mountain County” by name elsewhere, including in the table of contents). Occasional misspellings, inappropriate grammatical constructions, and punctuation gaffes (notably “et. al.”) further detract from the professional quality of the text. Finally, the research value of the book is undermined by a weak index (e.g., 100 undifferentiated references to “mediation,” and 82 undifferentiated references to “attorneys”) and a bibliography that I would not trust after finding half a dozen omissions.

REFERENCES

Gillman, Howard. 1996-97. “The New Institutionalism, Part 1: More and Less than Strategy; Some Advantages to Interpretive Institutionalism in the Analysis of Judicial Politics,” LAW AND COURTS 7:6-11.

Grafstein, Robert. 1992. INSTITUTIONAL REALISM: SOCIAL AND POLITICAL CONSTRAINTS ON RATIONAL ACTORS. New Haven: Yale University Press.

Silbey, Susan S. 2002. “The Emperor’s New Clothes: Mediation Mythology and Markets,” JOURNAL OF DISPUTE RESOLUTION 2002: 171-77.

Sproule-Jones, Mark. 1993. GOVERNMENTS AT WORK: CANADIAN PARLIAMENTARY FEDERALISM AND ITS PUBLIC POLICY EFFECTS. Toronto: University of Toronto Press.

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