As you design or refine your court ADR program, your planning committee will need to determine what forms you need to manage cases and track program statistics. Forms complement court rules by providing tools to implement your ADR program, as described in your rules. Court ADR forms have another important purpose: to provide you with the information needed to manage your ADR program and to understand how well it is working. This section provides guidance for creating forms, pointers for creating forms, and samples from around the United States that were selected as exemplary by a national committee.
The Basics of Form Creation
No matter what forms you create, there are certain rules that you should follow to ensure that the forms are understood, are filled out correctly and provide you the information you need to manage cases and the program.
Keep It Simple
Make forms that are easy to understand and easy to complete. Format the forms so that they can be followed easily. Use checkboxes when possible to shorten the length of time needed to complete the forms. Checkboxes also mean that those completing the forms will respond uniformly, which will allow the court to analyze the data more easily from those responses.
Use Plain Language
In many cases, those filling out the forms will be self-represented litigants. The language of the forms should reflect this. Use direct, everyday language as often as possible. Keep sentences short. Use definitions when necessary to explain what a legal term is. Whenever possible, translate the forms into languages that reflect the population served by the court.
A number of tools are available to help you to create plain language forms, including the following:
Use Precise Language
Leave nothing open to interpretation in your forms. Lawyers and parties find it easier to follow and understand orders that are written precisely. It also helps ensure they and the neutrals complete the forms correctly.
If you are asking those filling out a form to choose among a number of options for a particular question, make sure those options cover all the possibilities. For example, in a mediation report, mediators must have a way to report not just if the mediation session ended in settlement or not, but also if it was continued, or not even held. Also be sure that no two options overlap, such as asking mediators if the mediation took 1-2 hours, 2-3 hours or 3-4 hours. The mediator would have to decide whether their two-hour mediation belonged in the 1-2 hour or 2-3 hour option. And anyone analyzing the response would have to guess at what the mediator was thinking.
Provide Good Direction
Use forms for more than just collecting information for the court. Use them, as well, to inform lawyers, parties, and neutrals about the ADR process and what is expected of them as they move through it. This includes everything from what to do upon referral to ADR to how to inform the court of the outcome.
A good example of a form that uses referral to mediation to provide direction to parties and lawyers is Colorado’s Mediation Order.
Make Forms Uniform and Accessible
As much as possible, use standard forms across jurisdictions. This will help lawyers and mediators who work in multiple jurisdictions to more easily keep track of what forms they need to complete and how to do that. It will also be useful for monitoring and evaluation of programs. With uniform data, programs can be compared across jurisdictions.
For the greatest accessibility, post the forms online and make them available at physical locations such as help desks, the clerk’s office and in courtrooms where they are used regularly. For self-represented litigants, provide explicit instructions on how to complete the forms. If posted online, forms can be filled out on the court’s website, or be made fillable so that they can be downloaded, completed by computer and sent via email. When forms are provided in additional languages, the instructions should be provided in those languages, as well.
Create Forms to Collect Data that Helps Manage Cases and Track Programs
Think about what information you will need in order to know how well the program is functioning. For example, if you want to know whether mediation works with self-represented litigants in your program, you will need to capture information on which parties had lawyers with them at the mediation.
Apply This Advice When Survey Parties and Mediators
For in-depth guidance about how to survey parties and mediators after mediation, see Model Surveys. RSI worked with the American Bar Association to develop these model surveys, which you can adapt for your situation. We also wrote expert advice on how to write surveys to collect information from parties about their views of the ADR process and what they might have gained from it.
List of Forms
The following is a list of forms you may need for your ADR program.
Any ADR Program
Applications to be court-approved neutrals are generally used to collect information about the applicants in order to determine if they meet the criteria for approval or certification. They may also be used to provide information to parties about the neutral’s expertise, knowledge, and approach to mediation so that they can make an informed decision about what neutral to select. Relevant portions of the forms are often made available to parties and judges to facilitate this decision.
Request for Referral Form
This form provides a method for parties to indicate their interest in using ADR to resolve their case. These can be designed for a simple motion, or can be used to certify that the lawyers have discussed the ADR options and have decided to use a particular ADR process.
Order of Referral
Orders of referral are used to define the parameters a court has set for a particular case that is going to ADR and to inform parties about the process and their responsibilities in it.
Exemption from ADR
For courts that require ADR, there must be a way for parties to request that they be exempted from participating in ADR. This might be through an objection to a referral order or an objection to mandatory participation.
All courts should gather information about participant experience with the ADR program. See Model Surveys for more information on how to do this.
Any Mediation Program
Agreement to Mediate Form
An agreement to mediate is the form that the parties and the mediator sign to put everyone on the same page as to the process that will be followed in the mediation, what is to be considered confidential and the parameters of the process. The agreements, therefore, should be precise in their language, and they should be written in easily-understood language so as to avoid any future misunderstandings.
Mediation Report Form
Mediation report forms are used by courts to track the results of mediation. Courts need to know whether and when the mediation occurred, what the outcome was and who will be presenting any agreement to the court. It is also necessary for the court’s tracking of the of the program.
Mediators can also be asked to contribute information about the mediation that judges presiding over the case should not see. These confidential surveys can include information on why the case didn’t settle, characteristics of the dispute and who attended the mediation. The responses to these survey are generally aggregated by program staff or an outside evaluator and reported to the court so that responses regarding individual cases cannot be identified.
Mediation Programs Involving Intimate Partners
Intimate Partner Violence (IPV) Interview Protocol
For parties to participate meaningfully in mediation, they must be able to participate safely and exercise self-determination. To ensure that is the case when parties are, or have been, involved in an intimate relationship, they must be screened for intimate partner violence (also known as domestic violence) prior to mediation. To increase the probability that screening is done correctly for all cases, you should approve a screening protocol. This protocol would include a set of questions to ask each parent before mediation, as well as direction about how and when to screen. This will help toscreen out inappropriate cases or indicate whether the mediation needs to be adapted in a way to ensure the safety and self-determination of the parties.
Apply This Advice When Screening Parties
A good IPV screening protocol is more than just a set of questions. It includes instruction on when and how to conduct the screening and clear guidance for what should be done if IPV is found to be involved. Whoever screens parties in your program – mediators or staff – needs to be trained in recognizing and handling IPV.
Foreclosure ADR Programs
Notice to Homeowner
All foreclosure ADR programs need to notify the homeowner of the ADR program. The notice should provide information about what the program does, what the homeowner needs to do in order to participate in it and contact information for the program.
Foreclosure ADR agreements can contain multiple detailed and complicated elements. For that reason, you may want to develop a standard form in which the neutrals can check boxes or fill in blanks.
Good Faith Reporting Form
In developing foreclosure ADR programs, stakeholders may be particularly interested in “holding the other party’s feet to the fire” in an effort move cases along. This desire can pose a problem in mediation programs because of the confidentiality and mediator neutrality inherent in mediation. Forms to report on good faith in foreclosure mediation programs should be limited to reporting whether parties met objective standards such as appearance at the mediation.
Arbitration Award Form
Arbitration award forms provide a template for arbitrators to complete at the end of a hearing. The form standardizes the information the court receives and the format in which the information is presented. This reduces misunderstanding and miscommunication.
Rejection of Award Form
With non-binding arbitration, parties need a method for requesting a trial de novo. The form should include deadlines and any other requirements for filing the request.
Designing quality forms is only half the battle. Getting the forms completed and returned on a regular basis also can be difficult. If the court refers cases out to roster neutrals who are not on-site, you will need to supply the neutrals with the necessary forms for individual cases and a way to return the completed forms.
On-site court ADR programs typically compile a physical or electronic file for each ADR case that includes the forms. These usually include:
- Agreement to mediate, including confidentiality provisions
- Mediator report/arbitration award report
- Mediator survey
- Participant surveys
If mediating, the mediators should ensure that the participants understand the mediation process and confidentiality before asking them to sign the agreement to mediate. After mediation, the mediators are required to complete their reports and submit them to the court. They also may distribute surveys to the parties. See Chapter 11: Design a System to Track Your Program for advice on how to increase the likelihood that mediators complete their reports and return surveys (if mediating off-site).
Pitfall to Avoid When Collecting Mediator and Party Surveys
Don’t forget that information in the mediation and party surveys is confidential and should never be submitted to the court.
Since mediation and party surveys contain confidential information, the staff and judges should be trained on what information is confidential and what is permitted to be communicated to the judge so that both are shielded from improperly learning of or divulging confidential information.
Good court forms are essential to good case management and program administration. The more closely they align with the needs of your program, the more efficient and effective these activities will be.