In the first chapter, you considered what need you want to meet by creating or changing an ADR program. Now that your planning committee is in place, it is time to clearly articulate the goals of your court ADR program. The goals of the program will drive all the decisions about how it will function.
Goal-setting is a step that can easily be overlooked. Program planners may assume that everyone has the same reason for establishing a program. Or they may know that there are divergent reasons for creating the program and not want to deal with conflict among the stakeholders. Whatever the situation, it is best to tackle the question directly and develop as much consensus as possible. Defining the goals is essential to program performance. Without defined goals, you won’t have a foundation on which to write your local rules or to make assessments of program functioning in order to make necessary improvements.
Needs and Resource Assessment
To figure out your program’s goals, you need to understand the context in which you are creating your program. This includes how much of a need there is for services and where that need lies, as well as what resources are available to meet that need. Examples of information to collect that is relevant to the need for services include: the number of cases that would constitute the pool from which you would refer cases to ADR, how long it takes for the court to process them, typical characteristics of the cases, demographics of parties involved in those cases, how many parties are self-represented, and how the cases are currently being processed through the court system. If you have an existing program, you need to collect information about how it is operating, the rules that govern it, what it costs, any evaluations of the program, how many neutrals participate, neutrals’ training, etc.
What keeps me going is goals.
- Muhammad Ali
On the resources side, you will want to know how many trained, experienced neutrals practice in your jurisdiction; what legal services are available for the unrepresented; and what other related services are available that might assist with the program. You also will begin to identify potential funding sources. Are there any state-level funds or other support from the judiciary available? Is a filing fee increase an option? Are there grants that might help? How might existing staff be utilized? Are there partners, such as local community mediation programs, that can help?
This information will allow you to determine what the need is, possible resources, and what a program might be able to accomplish.
At their core, goals for court ADR typically address increasing participant satisfaction, reducing time to resolution, and saving money for parties and courts.
Increasing Party Satisfaction
Improving the experience that participants have while resolving their disputes is an important motivator for many court ADR programs. Some program designers, judges and academics frame this question in terms of procedural justice – did the litigants feel that they were heard and that justice was served, even if they did not prevail? Others look at it in terms of customer satisfaction – when the litigants came to court, did they feel that they received good service? Either way, participant satisfaction is central to this motivation.
Money and Time Savings
Saving time and money are not just about less cash and fewer hours, but encompass the amount of resources used by courts and parties.
There are two goals here: saving parties money and saving courts money. Courts see ADR as potentially saving parties money by reducing the number of attorney hours spent on the case, by decreasing the amount of discovery, and/or settling the case sooner and with fewer court appearances. The goal of saving courts money comes from a lower number of court hearings and trials, and other time that would be spent on the case by the judge and other court personnel.
Reducing time can be thought of in various ways. Do you want to reduce the amount of time it takes for a case to move from filing to closure? Do you want to reduce the amount of time judges spend on each case prior to disposition by reducing the number of court appearances? Do you want to reduce the amount of post-disposition time judges spend by increasing compliance with case determinations?
Find Common Ground Through Goals
The process of goal setting can be helpful in getting all the stakeholders on the same page. ADR programs can sometimes assist competing parties in meeting their own conflicting goals. For example, in some situations, stakeholders coming from plaintiff and defense perspectives may have different desires and approaches when it comes to ADR. Nonetheless, it is possible to meld their interests in program design.
Apply This Advice to Foreclosure Case
When developing a foreclosure mediation program, some stakeholders may have a goal of keeping people in their homes while others may want to reduce the time required to reach a final court decision. While these interests may appear to be opposed, there could be ways to address these goals in program design. For example, housing counseling could be the first step in the mediation process. It would identify which homeowners are likely to be able to retain their homes and assist them in pursuing retention. Homeowners who are not in a financial position to retain their homes might be assisted with a graceful exit at a time that is agreeable to the lender and the borrower. At the same time, unoccupied homes could be made ineligible for mediation and placed onto a docket that moves them through the foreclosure process more quickly. The goal in this situation could be something like, “to assess each case and determine which services will help resolve the case most expeditiously and with the highest rate of home retention, and provide those services.”
Apply This Advice in Juvenile Court
In juvenile court, goals for a restorative justice program may be reducing recidivism, repairing harm to the community, increasing victim satisfaction with the process and outcome, or putting the offender on a better path. These goals may all overlap, but decisions about which ones take priority will affect which restorative justice processes will be used. For example, if repairing harm to the community is important, you would select a process that includes community members. If increasing victim satisfaction is important, you may want to provide a forum in which the victim can talk directly to the offender.
Try Pilot Programs
If your initial investigation suggests to your planning committee that a particular program is most likely to address the court’s needs, but you expect it might be difficult to gain stakeholder acceptance, the planning committee may decide to start with a pilot program. The pilot program may be limited in time or scope. Many court ADR programs are started or expanded this way. Pilot programs might involve new approaches or new types of cases, and proof of the effectiveness of these new approaches might not be in place yet. If evaluation and sunset provisions are included in a pilot program, you can test the approach. If it does not work, you can gracefully end the program. If it works, you can extend it.
Maintaining Focus on Goals Is an Ongoing Task
You can help keep everyone who is involved with the program informed about the goals by consistently communicating with stakeholders during the development process and after the program is in place. Communication is particularly important if the goals change as the program grows and evolves. If participants know what the program’s goals are, they are more likely to understand how best to use the program and what to expect from it.
Likewise, it is important to revisit goals on a regular basis to see if the program is still working to achieve the same goals, or if the goals are still appropriate for the program. While a program might have one goal or set of goals when it is first established, those goals may change over the life of the program. For example, if your program was established to address a backlog in large civil cases and during the life of the program the caseload is brought up to date, you will want to decide whether to change the program to address new goals or to consider reducing the number of cases referred to the program because it has accomplished its goal.
If your planning committee maintains a clear line of sight to what the goal is, the program can stay focused on accomplishing that goal. Each program design decision can be made with the goal in mind.
Pitfalls to Avoid When Setting Goals
Don’t set a goal that is ill-defined.
The challenge at this stage is to set a goal that is not too vague, e.g., “make the small claims court run more smoothly.” Instead, you might frame the goal as: “reduce the amount of time it takes for a small claims case to reach disposition.”
Don’t leave out key elements of your goals.
If, for example, a major issue the court faces is how to serve unrepresented litigants and that goal is not included in the program design, the ADR program is unlikely to address that need. But if service to unrepresented litigants is one of the key goals, it will be included in program design, monitoring and evaluation.
What Does the Research Say?
Research can help guide you in deciding what goals to pursue. For example, if your goal is to improve participant experience, there is plenty of evidence that this can be achieved. RSI has studied the research on this topic and has found that it consistently shows that participant satisfaction with mediation is at least as high as it is for traditional court processes, and often is higher. This is particularly true in family cases.
On the other hand, if you want to reduce time to resolution or cost of litigation, the research is less clear. Some programs achieve the goals of reducing time and money costs, and others do not. With the exception of early referral, the research does not yet distinguish the characteristics of programs that will achieve these particular benefits.
To quote Yogi Berra, “If you don’t know where you are going, you might end up someplace else.” There is wisdom underlying the humor here. If you don’t articulate what you want to accomplish through your court ADR program, you will not know if you have accomplished your goals and you might end up with a program that does not accomplish what you intended.