The first question to answer when considering a new, improved or expanded court ADR program is: What is the need that court ADR will address? (Note that goal-setting is covered in Chapter 4). Often the need is first experienced as something that you want to improve in the court system.
Courts may see a need for a new ADR program when there is:
- A backlog in cases
- A need for judicial resources in other areas that might be addressed by reducing the demand in the area to be served by ADR
- Frustration with the narrow range of outcomes available through litigation
- A concern about a slow or contentious litigation process
If you don’t know where you are going, you might end up someplace else.
- Yogi Berra
Courts may see a need to improve their ADR program when:
- Use of the program is lower than desired – maybe use declined or maybe it never was as high as desired
- Participant surveys indicate dissatisfaction about particular aspects of the program
- The court is receiving complaints about the program
Courts may see a need to expand an ADR program when use is limited to:
- A particular part of a jurisdiction, e.g., counties in a court district, and the program could be available to all counties
- A particular type of case, and the program could be expanded to similar case types, e.g., programs for married parents could be expanded to parents who were never married
- Represented parties, and it could be expanded to unrepresented parties, or vice versa
Sometimes the motivation for court ADR comes from somewhere other than a specific court need. For example, ADR programs may be mandated higher up in the court system or by the legislature. There may be a desire on the part of judicial or other leadership to accomplish a political goal, such as appeasing a county board, or following through on a public promise to address a particular societal issue such as juvenile misconduct or home foreclosure. In all these cases, it is still important to consider how the mandate should play out in your jurisdiction.
Pitfalls to Avoid When Identifying the Need for an ADR Program
Don’t create your program solely as a means to reduce your budget. Sometimes courts facing financial pressures look to ADR programs as a way to save money. Unfortunately, research does not consistently show that ADR has that effect.
Why the Court?
Courts need to consider and communicate to stakeholders why the court is taking on responsibility for ADR, rather than leaving it to the private sector. After all, the court does not need to take a role in ADR for parties to be able to mediate or to agree on any particular process for reaching resolution. Parties are free to contract with independent neutrals to assist them in resolving their case. In addition, today judges often view settling cases to be as important to their jobs as trying cases. Why, then, would a court take on the added responsibility of operating an ADR program?
The reason the court should take an active role in ADR – according to many judges, court administrators and other stakeholders – is to increase use of ADR and improve control, efficiency and effectiveness. For example, when a court ADR program is in place, the use of ADR is more likely than if individual litigants are left to decide on whether to use ADR. Also, a court ADR program usually has a list of approved mediators to whom judges can refer cases – giving the court some input into the quality of ADR services. Court rules regarding issues such as confidentiality and voluntariness also provide predictability to those who use ADR services. In terms of efficiency, even judges who see themselves as active settlement agents may find that some number of standard cases may be mediated efficiently through a court ADR program or that cases in which time-consuming, detailed settlement discussions are needed could benefit from a mediator with time and expertise. Referring cases to ADR can free judges to pay more attention to cases that are not going through ADR, especially if the ADR program is able to resolve the preponderance of the referred cases.
No matter what the motivating factors, the court must always be focused on providing a just process through ADR. While the outcomes may not be exactly the same as those reached through litigation or other settlement methods, the process and the outcomes must be fair and be perceived as fair by the parties.