In a previous article, we discussed a recent move to implement mandatory mediation in South Africa's Gauteng High Courts, which is aligned with a broader international trend toward modernising civil justice. We also recently published a second article discussing the shifting landscape of Alternative Dispute Resolution (ADR) in England and Wales. This note focuses on the use of ADR in the United States, another jurisdiction that promotes and encourages ADR as a practical tool to ease pressure on an often-overburdened court system.
Since South Africa has not pioneered the global shift toward the use of ADR, it is worth considering developments in other jurisdictions where similar regimes have been implemented and challenges have been overcome. Mediation appears to be a highly effective tool when implemented with clear procedural guidelines, qualified mediators, and appropriate incentives.
ADR is a long-standing practice in the American legal system. In 1925, the Federal Arbitration Act was enacted to give United States federal courts the power to enforce private arbitration agreements as they would any other contract. In 1926, the American Arbitration Association (AAA) was formed. The AAA is a non-profit organization that provides parties with arbitration and mediation services to help resolve disputes outside of the courtroom, thereby reducing the burden on the United States judicial system.
In the 1970s, United States courts were extremely overburdened due to the creation of new causes of action—some with express or implied rights of private action—and the expansion of constitutional protections. As a result, courts began actively encouraging ADR as a more expedient and cost-effective means of resolving disputes. Early experiments in mandatory mediation programs, such as those initiated by Chief Judge Irving Kaufman of the United States Court of Appeals for the Second Circuit (which hears appeals from New York and surrounding areas), demonstrated significant success. These programs, which included random and mandatory assignment of cases to settlement conferences, proved effective in achieving settlements and reducing caseloads.
In the 1990s, the Civil Justice Reform Act of 1990 ("CJRA") required each federal court to develop a "civil justice expense and delay reduction plan . . . to facilitate deliberate adjudication of civil cases on the merits, monitor discovery, improve litigation management, and ensure just, speedy, and inexpensive resolutions of civil disputes." The CJRA required each court to consider authorizing judges to refer appropriate cases to ADR processes, specifically including mediation, among other measures to reduce litigation delay and cost. The Alternative Dispute Resolution Act of 1998 went a step further and required each federal district court to adopt local rules implementing its own ADR program. That Act required each federal district court to "provide litigants in all civil cases with at least one alternative dispute resolution process, including, but not limited to, mediation, early neutral evaluation, mini-trial, and arbitration."
As a result, every federal court in the United States now provides some form of ADR, although each federal court has discretion in how it offers and manages ADR processes. This means some have mandatory programs, while others are voluntary or take hybrid approaches. Indeed, different judges within the same district court may have different preferences. Court mediation programs in the United States are often very successful.
For example, the Southern District of New York, a federal district court serving New York City and surrounding areas, has a dedicated Mediation Program, which is designed to provide "quality dispute resolution services at the earliest practicable stage" and uses "mediators with a diverse range of experiences and backgrounds, who share the goals of providing parties with opportunities for supported negotiation, exploration of legal and factual issues, creative thinking, and settlement through mediation." Some cases, such as certain employment and civil rights cases, are automatically referred to the Mediation Program, while others are referred to the Program by the assigned judge. In 2021, 44% of the cases referred were automatic and 56% were judge-referred. In 2022, 1550 cases were referred to mediation, 36% were automatic referrals and 64% were judge-referred. The increase in referrals by judges themselves suggests that judges believe there are tangible benefits to the Mediation Program.
Federal appellate courts also typically provide ADR options for litigants. The Second Circuit Court of Appeals, which hears appeals from district courts in New York and elsewhere, has a Civil Appeals Mediation Program (CAMP), and a rule that gives the Court the authority to direct counsel and parties to participate in mandatory mediation conferences. The Second Circuit touts that between 2017 and 2023, approximately 37% of cases ordered into mediation were settled.
Many state courts in the United States also provide either mandatory or voluntary mediation ADR programs. New York state courts offer voluntary ADR options, although some cases, including divorce cases, are required to be mediated before the dispute will be heard by a judge. State courts in the District of Columbia similarly have voluntary programs, but too mandate mediation in certain cases, such as medical malpractice. Many other states have similar programs.
ADR, including mediation, has been widely embraced in the United States, and there are now many private organizations dedicated to providing private ADR services. Today, the AAA is one of the largest private global providers of ADR services in the world. The AAA touts that in 2024, it mediated $12 billion in disputes. Other organizations, such as JAMS and PADRE, similarly provide mediation and arbitration services, with experienced retired judges or renown private-sector practitioners serving as mediators and arbitrators in a variety of cases.
Despite the observed benefits and widespread adoption of ADR, the concept of "mandatory" mediation continues to face philosophical opposition. Critics argue that it contradicts the ideal of mediation as an "entirely voluntary" process. Concerns are also raised that it could add an extra layer of cost if misapplied, prove counterproductive for unwilling participants, or potentially pressure parties with meritorious claims into premature compromise. Variations in mediator quality and training are also cited as potential challenges.
These concerns largely mirror the criticisms surfacing in South Africa since the implementation of mandatory mediation in the Gauteng High Courts.
However, the U.S. experience demonstrates that these resistances can be overcome. Studies consistently show that even parties who initially entered mediation reluctantly often found the process useful, with improved outcomes either during the mediation or thereafter. While mediation offers parties a chance to explore settlement, it also gives parties a chance to develop their arguments for court and explore more creative remedies. As mediators become more experienced, and litigants approach mediation with a good faith desire to try to resolve a matter, there is a greater chance of success. In addition, many United States courts provide mediation services at no cost to the parties.
The consistent success rates of mediation programs undoubtedly lead to a better and more efficient court system with improved access to justice. The United States system highlights that when confronted with crises of capacity and delay, ADR can lead to improved tangible outcomes and systemic health of the judicial system.
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