LLS Staff Seminar #6: Exploring Empirical Examinations of Race and Gender in Alternative Dispute Resolution Studies

In the sixth La Trobe Law School Staff Seminar for 2015, Professor Ellen Waldman, Thomas Jefferson School of Law, will explore how race and gender appear in empirical examinations of Alternative Dispute Resolution Studies.

Abstract

The celebrated author (and early bohemian feminist) Anais Nin once wrote, “we don’t see things how they are, we see things how we are. “ And, perhaps nowhere is this more true than when academics turn their attention to empirical data.

In the dispute resolution field, we are awash with empirical examinations of any number of variables. We have data on administrative cost savings, reduced time to resolution, user satisfaction, court referral procedures, attorney attitudes, (and now, thanks to the work of La Trobe Law School) , mediator attitudes toward justice. What we have very little of is hard numbers on how ADR users actually fare in dollars and cents versus their court-bound contemporaries and how race and gender figure into this equation.

One notable exception is the Metrocourt Study, a research study conducted from 1990-1992, analyzing small claims court and mediated outcomes in a largely Hispanic, urban area in New Mexico. In addition to comparing the monetary outcomes gained by claimants and paid by respondents in court versus mediation settings, the researchers analyzed the ethnicity and gender of the disputants to determine how male and female minority disputants were doing compared to their Anglo counterparts. What they found did not translate well into an ADR infomercial.

Minority respondents paid more than their Anglo counterparts in mediation and also did worse than minority respondents who tried their luck in court. Minority claimants earned less than their Anglo counterparts, and less than minority claimants who went to court. Paradoxically, though, minority participants, by and large, reported higher levels of satisfaction with the mediation process than did Anglo participants.

So, minority disputants did worse in mediation but liked it better. What do we do with this data? In the nearly 25 years since this study was reported, it has been variously spun to support diametrically opposed conclusions. Viewed through one lens, the study is a cautionary tale of the exploitative potential of informal procedures. Viewed through another porthole, the study reveals the therapeutic value of procedural justice and the importance of looking beyond financial metrics when considering the success or failure of particular dispute resolution methods. As it turns out, the Metrocourt study has become a Rorschach test for the ADR community, perhaps telling us more about ourselves than the processes we are attempting to study.

Biography

Professor Ellen Waldman teaches, lectures and trains in the area of mediation and health care ethics. She is the founder and director of the Mediation Clinic at Thomas Jefferson School of Law in San Diego and has published extensively on mediation, bioethics, and other related topics. She has mediated a wide variety of disputes and serves on private and public health care ethics committees. She has taught mediation-related courses nationally and internationally and has published several articles and book chapters in the areas of alternative dispute resolution and bioethics. Most recently, she has published Mediation Ethics: Case and Commentaries, an in-depth treatment of the many hard cases that can arise in mediation practice.

Seminar

Date: Thursday 18 June 2015

Time: 11.45am to 1.00pm

Venue: Martin Building, Level 3, Room 362A, La Trobe University, Bundoora

Cost: Free

RVSP: Light refreshments will be provided. Registration is required at Eventbrite for catering purposes.

Marc Trabsky