When engineering how your ADR system will work, your planning committee will first need to decide what the relationship of the ADR program to the court will be. Once that is set, you will determine the steps that happen before cases go to ADR, while they are in the ADR process and after ADR is completed. Most of these logistics related to sending cases from the litigation path to the ADR path and back (as needed) will be addressed in your local rules. Some may be addressed in internal operating procedures.
Everything must be made as simple as possible but not simpler.
- Albert Einstein
Although courts are responsible for the quality of any ADR program to which they refer cases, the actual relationship between court and program can take many forms. The decision about this relationship will be affected in large part by your budget and available resources, which ADR process you have selected, and who will pay the neutrals (or if they will be volunteers). Program size alone is not necessarily a determining factor. Note: A judge could suggest use of an ADR process in select cases without referring to any particular program or neutrals, but this would fall short of being considered a court ADR program.
The more closely the court holds the program, the more control the court will have over it. But that closeness demands that time be spent by judges and court personnel managing the program on a day-to-day basis.
Very generally speaking, most arrangements fall into one of the following broad categories. There are costs and benefits associated with each.
Court establishes a program within the court structure, with court staff providing ADR services
- Benefits: Court has maximum control. Court can adapt program services as needed. Courts can collect questionnaires from parties to monitor for strengths and problems.
- Costs: The cost of paying staff neutrals can be high, as can the cost of removing staff if there are changes later on. Court must dedicate staff time to managing and administering the program.
- Example: Appeals court offers mediation through staff mediators.
Court develops and maintains a roster of neutrals from outside the court who are either appointed by the court or selected by the parties for particular cases
- Benefits: Court can respond flexibly to the number of cases needing ADR. Court can appoint qualified neutrals or parties can select from among qualified neutrals. In the latter situation, if parties are unable to agree on a neutral, the court can appoint a qualified neutral.
- Costs: Some court staff time is needed to maintain the roster of neutrals, and that time may be greater if the neutrals are volunteers. It is more difficult to monitor and to change the way services are provided when the ADR providers are independent contractors instead of staff.
- Example: A civil court offers a roster of approved mediators from which judges or parties may select a qualified mediator for large civil litigation.
Court Contracts with an entity to administer a program and provide services on the court's behalf
- Benefits: Court has limited responsibility for day-to-day administration of the program. Court is insulated from inadvertently obtaining confidential information.
- Costs: Court has the least ability to supervise program quality. It may be difficult for the court to adjust the program during the course of a contract.
- Example: A small claims court contracts with a community mediation program to provide volunteer mediators.
The Nitty-Gritty: What Happens Before, During, and After ADR
This is the nuts-and-bolts phase of program design. Often the planning committee will use the writing of the court rules as a tool for identifying and making decisions about how cases are identified for ADR and move through the ADR process, then either back to the litigation path or out of the court system.
Your planning committee will need to tackle a number of questions about what happens before ADR. Some are about case referral, such as which cases are referred, when and how. Some are about neutrals, such as how neutrals are selected for each case. And then some are about what preparation takes place before the ADR process.
Case referral is the process by which cases move from the traditional court process to the ADR program. Chapter 7: Decide Which ADR Process to Use discussed mandatory, opt-out and opt-in programs. In mandatory programs, parties are required to participate in some type of ADR – typically mediation – before their case can move forward in litigation. In opt-out programs, all cases are expected to go to ADR unless a party takes an action. In opt-in programs, cases are only referred to ADR if someone (e.g., judge, lawyer, party or court staff) takes an action. Sometimes ADR becomes so ingrained in a jurisdiction’s legal culture that, while it is still voluntary, in practice, it is opt-out.
A threshold question to answer is whether all cases of a particular type will be referred or if decisions about referral to ADR will be made on a case-by-case basis. There are times to use each of these approaches. Another question is whether cases will move through a series of processes or if cases will be screened for the most appropriate process. For example, some commentators looking at family cases suggest that there should be triage with a decision about what form of ADR to use in each case, not the linear system of parent education followed by referral to mediation, and if that does not resolve the case, referral to evaluation, etc.
Apply This Advice To Referring Cases
Your planning committee might decide that all divorces with contested, non-monetary child-related issues will go to mediation (following screening) because it is likely to be useful in the vast majority of cases – either reaching resolution or significantly narrowing the issues. But if you are designing a parenting coordination program, you will want to be more selective in choosing which cases are referred because parenting coordination is not needed in most cases and requires significant expertise and expenditure.
Here are some examples of ways to think about which cases will be referred and examples of how those decisions play out in particular types of cases.
Are certain types of cases within a larger category referred and others not?
- In divorce matters, all cases in which parenting time and decision-making responsibility are in dispute, excluding those with allegations of intimate partner violence
- Within appellate ADR, all civil litigation, but not government benefit cases
Are certain parts of cases referred and others not?
- In parentage cases, all parenting time and decision-making matters, but no financial issues
- In large litigation, all e-discovery matters, but not the substance of the case
Are cases referred if only one party requests the referral?
- In foreclosure cases, if the homeowner requests ADR, usually the lender must participate
- In civil litigation – whether small claims or large litigation – the referral to mediation may depend on both parties agreeing to mediate
Deciding when the case will move to the ADR process is a critical decision. Some processes, e.g., Early Neutral Evaluation, are designed to be used when the case is still relatively new. For mediation, the key is to refer the case at a time that is not too early and not too late; when enough information is available to the parties to assess their case, but resources have not been used up collecting and digesting information; and when the parties have had enough experience in litigation to comprehend its difficulties, but not so long that their mindsets have become set in stone. Some mediation programs send all cases at a particular point in the case, (e.g., the first time both parties appear in small claims court) while others rely on judges, lawyers and parties to determine when each case should be referred (e.g., large civil litigation.)
The timing of referral depends on the type of case involved. In family mediation, the common practice is to refer the parties to mediation after the first hearing. This gets the parents talking early with the hope that they will resolve issues without judicial intervention. Multiple evaluations have shown this model is effective. In one study, in particular, referral at filing led to quicker resolution, fewer court hearings and greater likelihood of settlement than referral after the first hearing.
Civil cases are a little more complex. In surveys, most attorneys want to wait to mediate until they have conducted sufficient discovery to be able to negotiate knowledgeably. Nonetheless, research (examples here, here, and here) shows that, in general, early referral is more likely to lead to settlement in mediation. Further, it results in shorter time to resolution and fewer motions before the court whether or not the case settles in mediation. While early referral has those benefits, you might want to consider waiting to refer a case to mediation when a motion to dismiss or for summary judgment is pending. Examinations of cases in Ohio, Mighian, and Georgia point to the possibility that civil cases that are mediated when a motion to dismiss or for summary judgment is pending are significantly less likely to settle in mediation.
In child protection mediation, the timing of referral is a particularly important factor in system design. The point at which a case is referred to mediation depends on what goals the court has for the program. Some programs focus on issues that are present at the beginning of a case, such as identifying family members who can take temporary custody of the children or determining what services the parents and children need. Some focus on issues surrounding the termination of parental rights. Others encourage referral at every stage of the case, with the mediation fitting the situation. Research has shown that each of these can successfully meet program goals. What you decide to do will depend on what issues you want to address and the available resources. Early referral, for example, is meant to jumpstart the process of moving the parents through the steps they need to take before they can regain custody of their children, thus reducing time to permanency.
Case referral involves two concepts. The first is what triggers referral (e.g., a party opting in) and the second is what mechanism effectuates the referral (e.g., filing a motion.)
Triggers range from automatic to case-by-case. If they are not automatic, someone will need to intervene to make or recommend the referral. Here are some examples of how triggers might play out in particular types of programs.
All cases of a particular type that meet eligibility criteria
- Example: Foreclosure cases involving residential properties of four units or less — automatically referred
All cases of a particular type that are not screened out
- Example: Divorce cases involving parenting time and decision-making issues where there is no history of domestic violence — automatically referred, and then screened by the neutral
Cases of a particular type that meet additional criteria for referral
- Example: Misdemeanor cases involving friends or family members with an ongoing relationship — screened by the judge or pre-screened by a court clerk, police warrant officer or program staff person
Cases of a particular type in which one party desires ADR
- Example: Foreclosure cases in which the homeowner desires ADR — automatically enter the program
Cases of a particular type in which both parties desire ADR
- Example: Personal injury cases in which plaintiff and defendant desire ADR, though they may be urged by a judge or by the lawyers for one or both parties — by a motion referring the case to mediation
Pitfalls to Avoid With Judicial Referrals
Be sure to establish a method to maintain judicial referrals.
In ADR programs that leave the referral to the judge, referral rates tend to be uneven among judges. Different judges may encourage participation in the program to different degrees, ranging from no mention of the option to strong-arm tactics. This means that the retirement or transfer of one judge who is a strong proponent of ADR can have a damaging effect on the flow of cases into your program. If you decide on a voluntary program, it will be essential to develop judicial buy-in, report to judges frequently about program successes, and educate new judges as they join the court. Actions by individual judges may determine if the program thrives or dies.
Your planning committee may decide that moving a case from the traditional litigation/settlement track to the ADR track and back to litigation/settlement will be accomplished informally, administratively or through a court order. Informal referrals typically only work for cases such as small claims where the parties are referred to mediation on the date they appear in court. The court will note in the case file that mediation occurred. For programs where most cases go to ADR, such as custody and parenting time, an administrative process will simplify matters by having the court indicate in the court file when a case is in the ADR program without needing a court order. For programs in which some cases go to ADR and others do not, you may want to require a motion that results in a court order. That motion may be brought by one or both of the parties or by the judge sua sponte.
Whatever mechanism you choose, if your program will require additional steps in order to enter ADR, you will need to include a way to track whether those steps have been accomplished. For example, a homeowner may have to file an appearance to participate in a foreclosure dispute resolution process or divorcing parents may have to attend parent education in order to participate in custody and parenting time mediation. If you have these requirements, you will need to track them as part of your referral process.
Pitfalls to Avoid When Defining A Court ADR Program
Don’t confuse non-court and court ADR.
Sometimes there is no official referral to mediation. Instead, parties will ask for a continuance to attempt mediation through their own means. This practice is quick for the parties and judge, and may accomplish resolution if your jurisdiction has embraced ADR. However, with this approach to mediation it is almost impossible for you to track how mediation is functioning in your court. This would not be considered a court ADR program.
Designing a process for identifying which neutral will handle each individual ADR case involves deciding who will do the picking, from what group of neutrals they will pick and whether the selection will be random or based on some criteria. As your planning committee writes the rules regarding neutrals, decisions will be made about this selection process. (For information on deciding who will be approved to act as a neutral in your program, see Chapter 9: Select and Manage Your Neutrals.
The first question to answer is whether the parties will select their neutral or whether the court (or its designee) will select. Your answer to this question will depend on various factors.
- Some parties are knowledgeable enough to pick a neutral and other parties are not. Unrepresented parties who have never participated in an ADR process, for example, are unlikely to have a good foundation for selecting a neutral.
- Whoever pays the mediator is likely to want to pick the mediator. If the parties are paying the neutral, they are more likely to want to select their own. Similarly, if the court is providing the ADR service, the court will probably want to identify who will serve as neutral.
If you decide you want the parties to pick the neutral, your next question is whether they may pick anyone, must get approval for a neutral they pick, or must pick from a court-approved roster of neutrals. As a way to build confidence in the ADR process, you may want the parties to select a neutral from a court-approved roster of neutrals when your program is just getting started or is expanding. Similarly, the court may want to maintain control over who is providing neutral services, so the court may want to require that neutrals be selected from a roster.
If you leave the decision to the parties, you will have to decide what to do if they can’t agree. Typically, this means that the court or program will have to make a selection, and that means that the court will have to develop and maintain an approved list of neutrals.
There are also hybrid processes where the court provides the parties with a short list of neutrals, and the parties take turns striking names until the remaining neutral is selected. This process can be used as a fallback if the parties cannot agree on a neutral.
Court or Program Selects
There are many good reasons to decide to have the court, or the ADR program, select the neutrals. These include relative similarity in ability among neutrals, similarity among cases, lack of time, and desire for an impartial decision about who the neutral will be.
Apply This Advice to Small Claims Mediation
Typically in a small claims mediation program, mediators (often volunteers or paid a small stipend) will be available at a courthouse and assigned randomly to cases. Mediations go forward without input from the parties. There is neither time nor information available to match mediators and cases. If a conflict of interest crops up, the mediator will identify it and respond appropriately.
If the court or the court’s ADR program picks the neutrals, an important decision is whether they assign cases on a random basis or based on qualification. Random assignment has the advantage of being very fair to all the neutrals and impartial to the parties. One possible downside of random assignment is that neutrals are not used more if they are more skilled and less if they are less skilled. Assignment based on qualifications has the advantage of matching the neutral’s knowledge, skills and experience to a given case. A downside of matching neutrals to cases is the potential appearance of bias. Judges and court programs must remain above suspicion of cronyism when assigning cases to individual neutrals. Even in situations that do not involve possible bias, sometimes the parties will disagree with the assignment of a particular neutral. Because of this, the court or the court’s program must also offer a process for parties to object to that assignment.
Pitfalls to Avoid When referring to Outside Neutrals
Don’t risk compromising a judge’s impartiality.
If the court is going to refer cases to outside neutrals, do not ask individual judges to decide who will handle each case because this can put them in the position of appearing to refer cases to their friends who are neutrals. Some programs do have court staff members who match up neutrals with particular cases based on qualifications. This requires a fair, transparent process.
Preparation for ADR typically involves communication between parties and the neutral to exchange information and discuss how the ADR process will function. Depending on which ADR process is used and the type of case, this can range from no communication at all before ADR to extensive discussions and exchange of documents.
Processes in which the neutral will make a decision or recommendation, such as arbitration and early neutral evaluation, tend to focus pre-ADR preparation on submission of documents. Neutrals may have conference calls with all parties on the line to address process issues, but they do not have individual conversations like mediators often do.
In a process such as mediation, where the neutral is not a decision-maker, the use of pre-mediation communications depends more on the type of case than on the process.
Mediators working with large litigation matters often use pre-mediation meetings (which may be by telephone) to identify potential hurdles and understand underlying issues. It is also a time for the mediator to let the attorneys understand the process and the mediator’s expectations. These conversations may be with both sides at once, with each side separately or some combination.
In preparation for mediation, mediators often request a summary of each side’s assessment of the strengths of its case, the history of negotiations and the party’s latest negotiation position. Depending on the complexity of the case, there may be quite a bit of legal research in support of the party’s position. As with oral communications, these written communications may be shared with the other side, only presented to the mediator or some combination.
Preparation to mediate a family case is different from other types of mediation because it involves a screening step, and may or may not involve other communication among the parties and mediator. A structure and protocol for individual pre-mediation meetings between the mediator and each parent will allow the mediator to screen for intimate partner violence and other impediments to mediation, then make the necessary arrangements should they exist. See Model Court Protocol for Domestic Violence and Child Abuse Screening in Matters Referred to Domestic Relations Mediation for a good sample protocol and The Mediator’s Assessment of Safety Issues And Concerns (MASIC): A Screening Interview for Intimate Partner Violence and Abuse Available in the Public Domain for a tested model questionnaire.) The pre-mediation meeting with each parent is also used by mediators to help parents start thinking about their situation and what is best for the children.
In their research on the efficacy of these individual pre-mediation meetings in labor and family disputes, Roderick Swaab and Jeanne Brett found that when they were used to establish trust and not to push the parties toward settlement, they reduced interpersonal conflict between the parties and enhanced the quality of the settlements.
Court mediation programs are unlikely to request pre-mediation submission of documents, in part because parents increasingly are not represented. Also the subject of these programs is usually parenting time and decision-making responsibilities, so filling in court forms during the mediation may be most efficient. In programs that deal with financial aspects of divorce, submission of documents is much more likely to be needed.
Exchange of documents between homeowner and lender prior to the ADR process is absolutely essential to foreclosure mediation. Depending on how you design your program, this may or may not be facilitated by the mediator. Often homeowners work with housing counselors prior to engaging in mediation. Housing counselors are experts at advising borrowers on what information is needed and guiding them through the process of gathering and submitting documentation for consideration by the lender of a loan modification or other option. Sometimes this document exchange is assisted by ADR program staff or legal aid attorneys. In some programs, staff mediators assist homeowners from the beginning of the submission process. Bottom line: if you are designing a foreclosure ADR process, you will need to determine who will assist homeowners with the process of submitting documentation for consideration.
Pre-mediation exchanges of documentation or mediator discussions with individual parties typically aren’t practical or particularly useful for small claims cases. In these cases, the legal issues are generally not complex, mediators are often appointed on the day of the mediation, and some portion of the dispute may center on personal relationships.
There are three critical areas to address in your court rules regarding what happens while a case is in ADR: process, paperwork and timeframes. Your planning committee will have decided which ADR process to use at Chapter 7: Decide Which ADR Process to Use. You will design the forms and other paperwork you will need for your program. This current step is the point in the design process when you determine the timeframes for ADR, as well as whether the underlying litigation is stayed while a case is in ADR.
The fundamental principle when designing timeframes for ADR is to make them short enough that they do not unnecessarily extend the time a case is in court, but long enough to allow the ADR process to function effectively. To do this, you will decide what amount of time to allow from ADR referral to return to the traditional court path, how long each ADR session will last, and the number of ADR sessions.
Amount of time allotted for ADR
Cases may be referred to ADR processes for time periods ranging from minutes to months. Your planning committee will need to consider the typical amount of time for a case to proceed through the traditional litigation process and then decide what the appropriate amount of time is for ADR. The time allotted for complex civil litigation may vary depending on the case, or you may set a minimum amount of time in your rules, for example 60 days, with the option of the court extending the time if progress is being made. A small claims mediation program may provide mediation services on the spot while parenting coordination may go on for many months, even years.
A related question is whether the case, or only discovery, is stayed while the case is in ADR. There are arguments for both approaches. Staying the case or staying discovery reduces the costs that are accumulating while the case goes through ADR. On the other hand, if the case is stayed while the case is in ADR and ADR does not result in a binding outcome, time spent in ADR could be seen as simply adding delay.
Time in ADR sessions
It is common for courts to limit the amount of time parties spend in ADR, but as with many issues in system design, this depends on what type of case and who is paying the neutral. Some cases are more complex and need more time. Courts are especially likely to limit the number of hours spent in ADR if the court is paying the neutrals.
For example, day-of-trial small claims programs where mediation is provided by volunteers might need to limit the time in mediation in order to process all eligible cases during the court call. These cases may be allotted 60-90 minutes for mediation. While some courts may provide only 30-45 minutes, this is likely to reduce the resolution rate and push mediators to cut corners when it comes to party self-determination. Similarly, a non-binding arbitration program, in which the arbitrators are paid by the court on a per arbitration basis, may provide a limit of two hours for each arbitration hearing of cases where the demand is between $10,000 and $30,000.
On the other hand, in large civil litigation mediation, the parties may be left to agree with one another and the mediator on how long they will spend in mediation sessions. There is some evidence that longer sessions lead to better outcomes. Research on civil cases in Denmark including contract disputes, probate and divorce found that agreements were more creative and of higher quality when mediation lasted more than three hours.
Number of sessions
As you write your court rules, you will need to decide how many ADR sessions will be made available. The guidance about duration of mediation as it relates to case type and process type applies to the number of sessions. Most mediation programs for civil and family cases allow for more than one session. Small claims are typically only one session.
Apply This Advice to Foreclosure Rules
In foreclosure ADR, your planning committee will need to balance the expressed interests of lenders and borrowers. Typically, when rules are being drafted, lenders are interested in shorter timeframes and borrower representatives are interested in longer timeframes. In practice, lenders sometimes need more time to review packets that have been submitted by borrowers and borrowers are well-served by resolving their cases before arrears pile too high.
Your rules should provide for what happens at the end of ADR. The first question is whether the case reached resolution in ADR. Based on the answer to that question, you will need to decide what happens next in the case.
Whether resolution is reached or not, it is good practice to have neutrals submit a report to the court when a case completes ADR.
Cases that reach resolution
When a case is resolved in ADR, one of three things may happen: a judgment is entered, the case is dismissed or the case is left open. Not all of these options will be appropriate for every type of case, but the following example of how this would play out in landlord-tenant court illustrates the options.
The agreement is entered as an order of the court. An agreement for the tenant to leave a rented apartment on a certain date and for the landlord to return a security deposit on a certain date may be entered as a judgment of the court.
The case is dismissed. A case may be dismissed when the parties agree that the tenant will leave a rented apartment on a certain date and the landlord will return the security deposit on a certain date.
The case is held open pending the completion of actions determined by ADR. A case may be held open until the dates by which the tenant will leave a rented apartment and the landlord will return the security deposit. Some period after that date, the case will be closed automatically if neither party had returned to court alleging the other party did not complete his or her responsibilities.
Depending on which option you select, you will need to have a process in place to report the results of ADR to the court. The last two options are easiest to report. Either the case goes back to the litigation path or it is dismissed. If you select the first option and the result of ADR is going to be entered as a court order, you may face issues about who may draft a legal document. One way to address this issue is to create a detailed form, approved by the court, on which the neutral simply checks off or fills in the decisions made by the parties. This approach has been used successfully, for example, in joint parenting, foreclosure and smaller civil cases.
Cases that don't reach resolution
If a case is not resolved as a result of ADR, there are two possibilities. One is return to the litigation path and the other is to engage in more ADR. The latter is rare, but if you want it to be an option, you will need to write into your rules the criteria by which cases will continue on in ADR. This is a smaller subset of the opt-in, opt-out and mandatory approaches used to determine whether a case will enter ADR in the first place. You may decide that if both parties agree, the case may undergo more ADR; if one party requests more ADR, the case will continue in ADR; the judge may order more ADR regardless of the wishes of the parties; or the judge will decide on a case-by-case basis if more ADR is appropriate.
If a case is not resolved through ADR and there is no additional ADR planned, cases will return to the traditional litigation path.
Pitfalls to Avoid When Dealing With Confidentiality
The court should not direct questions about a mediation to the mediator.
In confidential processes, such as mediation, it is best to rely on a written report to the court on the outcome of mediation, instead of the mediator reporting to the judge in person. If there are any questions about the agreement or what happened in mediation, using a written report avoids the awkward situation of the judge directly asking the mediator, which can quickly lead to violation of confidentiality. Along those same lines, mediators and program staff need to be careful about informally discussing their mediations with judges and others outside the courtroom.
Involving representatives from all stakeholder groups in your planning committee will help ensure the program functions smoothly. Thinking through the mechanics of your ADR program with all stakeholders will help you design systems for moving cases from the traditional litigation path to ADR and back again, with the fewest bumps along the way.