Evaluating Alternative Dispute Resolution: Measuring the Impact of Family Conciliation on Costs†
| Author | Anthony Ogus,Peter McCarthy,William Cole,Michael Jones‐Lee |
| Published date | 01 January 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01791.x |
| Date | 01 January 1990 |
Evaluating Alternative Dispute Resolution: Measuring
the Impact
of
Family Conciliation on Costs?
Anthony
Ogus*,
Michael Jones-Lee**, William Cole***,
Peter McCarthy
*
*
*
*
General
Alternative Dispute Resolution and Socio-Legal Research
The increasing use of alternative non-judicial methods of dispute resolution has been a
widespread phenomenon in recent years. Some, for example administrative tribunals,
ACAS,
small claims ‘courts’ and the ombudsmen, have resulted to a greater or lesser
extent from governmental initiatives; others, such as arbitration and family conciliation,
have emerged more as a response to decentralised demand. Most of the ‘first wave’ literature
on the alternative dispute resolution movement was vociferously enthusiastic for it, the
claims being that it reduced costs and delays and generated outcomes which, in general,
were more satisfactory compromises than the ‘all-or-nothing
’
solutions incorporated in
judicial decisions.2 Subsequently, commentators adopted a more critical stance:
settlements reached by the alternative systems lacked the ‘legitimacy’ of authoritative judicial
decisions (a dimension of particular importance in some areas of the law); participants
might be pressured into accepting less than their full entitlement; and that the handing
down, and publication, of judicial decisions constitutes a valuable ‘public good’, since
it provides information about what can and cannot lawfully be done.3 The problem with
this set of arguments is that they apply also to negotiated settlements of traditional legal
actions4 and thus should be directed equally against any system of justice
-
like the
English5
-
which encourages such settlements. For policy purposes, the crucial question
is whether the alternative procedures are superior in terms of costs and/or satisfactory
outcomes to traditional processes.6
~~ ~ ~~
*
Professor of Law, University of Manchester, formerly Director of Conciliation Project Unit, University
of Newcastle upon Tyne.
**
Professor of Economics, University of Newcastle upon Tyne, formerly Co-Director of Conciliation Project
Unit.
***
Research Officer, Law Society, formerly Research Associate, Conciliation Project Unit.
****
Research Associate, Family and Community Research Centre, University of Newcastle
upon
Tyne, formerly
Conciliation Research Unit.
t
The research was funded by the Lord Chancellor’s Department.
It
was undertaken by a team all of whom
contributed substantially to the findings and analysis, contained in
Repon
to
the
Lord
Chancellor
on
The
Costs
and
E$ectiveness
of
Conciliation in
England
and Wales
(1989).
In
addition to the four authors of this article,
it comprised Judy Corlyon, Robert Simpson, Janet Walker and Sarah Wray. A note on the Report by Simon
Roberts appears below p.
88.
For overviews of British and American developments see, respectively, R. Williams, ‘Should the State
Provide Alternative Dispute Resolution Services’,
(1987) 6
Civil Justice Q.
142
and J. Lieberman and
J. Henry,
“Lessons
from the Alternative Dispute Resolution Movement”,
(1986) 53
U. Chicago L.R.
424.
W. Burger “Isn’t There
a
Better Way?”,
(1982) 68
Am. Bar Assoc. J.
274;
L.
Riskin, “Mediation and
Lawyers”,
(1982) 43
Ohio St. L.J.
29;
J. Auerbach,
Justice
Without Law?
(1983).
0.
Fiss, “Against Settlement”,
(1984) 93
Yale L.J.
1073;
H. Edwards, “Alternative Dispute Resolution:
Panacea
or
Anathema?”,
(1986)
99
Haw.
L.R.
668;
E. Brunet, “Questioning the Quality of Alternate
Dispute Resolution”,
(1987) 62
Tulane L.R.
1.
J. Coleman,
Markets, Morals and the Law
(1988),
ch.
9.
Sir Jack Jacob,
The
Fabric
of
English Justice
(1987),
pp.
114-131.
R.
Posner, “The Summary Jury Trial and Other Methods of Alternative Dispute Resolution: Some
Cautionary Observations”,
(1986),
53
U. Chicago L.R.
366, 367-368.
1
2
3
4
5
6
i%e
Modem Low Review
53:
1
January
1990 0026-7961
57
7he
Modern
Law
Review
[Vol.
53
Notwithstanding the importance of this question, it has been the subject of few empirical
studies. The use of different legal processes by disputants has preoccupied socio-legal
researchers in recent years*; little has been attempted on evaluating the costs and
effectiveness of those processes. It is not difficult to see why. First, legal system processes
have been likened to a ‘leaky funnel’: only a small proportion
of
those who enter remain
until the end.9 Consequently, cases with different points and times of exit have to be
monitored and compared.
A
second, frequently encountered, problem
is
that of ‘local legal
culture’: practices in a particular legal community may be idiosyncratic
so
that the data
emanating from the relevant institutions cannot be understood without reference to those
practices.I0 Thirdly, even if a sufficient number of cases and institutions can be studied
to overcome these problems, it is not clear what criteria should be used to evaluate
‘effectiveness’, given that different participants will have different expectations and goals.
It
was against the background of these apparently intimidating difficulties that the
Conciliation Project Unit, a multi-disciplinary team of researchers at the University of
Newcastle upon Tyne, was commissioned by the Lord Chancellor to evaluate the costs
and effectiveness of different rypes of family conciliation schemes,
so
as to ‘enable him
to decide
.
.
.
whether a publicly funded national conciliation service should be established;
and
.
.
.
if
so,
how such a service might best be organized and funded.’ Work began in
September 1985 and the report was submitted in February 1989.”
Our concern in this paper is not to summarise the report as a whole but rather to
concentrate on that dimension of the research study which attempted to assess the impact
of concilation on costs. There is a twofold justification for this focus. On the one hand,
cost analysis
of
the legal system is a neglected area of socio-legal research in Britain.I2
On the other hand, the methodology used in the Newcastle cost study
-
multiple regression
analysis
-
is unfamiliar to most lawyers and it is hoped that what follows might provide
a relatively painless introduction to a statistical technique which potentially has a wide
application to the analysis of legal institutions.
l3
Conciliation
as Alternative Dispute Resolution
Conciliation has been defined as ‘a structured process in which both parties to a dispute
meet voluntarily with one or more impartial third parties (conciliators) who help them
to explore possibilities of reaching agreement, without having the power to impose a
settlement on them or the responsibility to advise either party individually’.14
As
a mode
7
8
9
10
11
12
13
14
Studies have tended to concentrate
on
procedural devices connected to the legal process itself:
H.
Zeisel
and T. Callahan, “Split Trials and Time Saving: A Statistical Analysis”,
(1963), 76
Harv. L.R.
1606;
M. Rosenberg,
The Pretrial Conference and Effective Justice
(1982);
P. Nejelski and A. Zeldin, “Court-
Annexed Arbitration in the Federal Courts: The Philadelphia Story”,
(1983) 42
Maryland L.R.
787.
See particularly, the University of Wisconsin Disputes Research Programme
-
D.
Trubek et al.
Civil
Litigation Research Project Final Report
(1983)
-
and, more generally, M. Galanter, “Adjudication,
Litigation and Related Phenomena” in L. Lipson and
S.
Wheeler (eds),
Law
and the Social Sciences
(1986),
ch. 4.
S.
Diamond, “Methods for the Empirical Study
of
Law”
in
Lipson and Wheeler,
n.8
supra, p.
639.
T. Church,
Examining Local
Legal
Culture: Practitioner Attitudes in Four Criminal Courts
(1982).
A. Ogus, J. Walker, M. Jones-Lee, W. Cole, 1. Corlyon, P. McCarthy, R. Simpson,
S.
Wray,
Report
to
the Lord Chancellor
on
The Costs and Effectiveness
of
Conciliation in England and Wales,
Lord
Chancellor’s Department
(1989)
-
hereafter referred to as CPU Report.
Cf
D.
Harris, “The Development of Socio-Legal Studies in the United Kingdom”,
(1983)
3
Legal
Stud.3
15,328.
A noteworthy example is, however,
S.
Domberger and A. Sherr, “Economic Efficiency
in the Provision of Legal Services: the Private Practitioner and the Law Centre”,
(1981)
1
Int. Rev.
Law and Econ.
29.
For its application to particular problems
in
a court setting,
see
F. Fisher, “Multiple Regression in Legal
Proceedings”,
(1980)
80
Col. L.R.
702.
L. Parkinson,
Conciliation
in
Separation and Divorce
(1986),
p.
53.
In
other jurisdictions, the term
‘mediation’ is more frequently used to describe this process: L. Fuller, “Mediation
-
Its Forms and
Functions”,
(1971) 44
S.
Calif. L. Rev.
305.
58
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