Before you can move forward with designing your program, you need to know the context established by the legal and ADR environments. These environments have an enormous impact on whether – and how – a court ADR program will be instituted (or changed) and what form it will take. An understanding of your legal and ADR culture will inform your planning committee about how much effort they will need to put into tasks such as identifying, selecting and training neutrals; educating the bar and bench; and reaching out to the community.
The acceptance of ADR varies greatly across and within jurisdictions. For example, some states have highly developed statewide support for court ADR while others leave it to local jurisdictions to develop and maintain their ADR systems if they choose. This variation in ADR structures will have an impact on what rules are in place, too. Despite operating under one set of laws, the federal courts vary greatly in their adoption of ADR, too.
The Legal Environment
Research is formalized curiosity. It is poking and prying with a purpose.
- Zora Neale Hurston
There are two legal environments your planning committee will need to understand. One is the substantive law related to the types of cases your ADR program will handle and the other is the law related to ADR.
The lawyers and judges on your planning committee who work in the area of law that your ADR program will serve are your first source for understanding the substantive law. They know how a case proceeds through litigation, key points in the progress of the case, and who is involved in the case. Lawyers and judges will have different perspectives on the litigation process, so you will want to hear from both groups. Plus, if you are developing a program in an area where lawyers tend to represent only one side or the other, such as plaintiffs or defendants in large civil litigation, you will need to get input from both sides.
ADR-related Laws and Court Rules
The laws and rules that address court ADR and neutrals form the legal structure for your court ADR program. You may have statewide or jurisdiction-specific rules to consider. (For example, there are particular rules and statutes if you are working with a federal court.) Examples of what these laws and rules may include are:
- Directions about how court ADR programs will operate
- Discovery rules as related to ADR
- Confidentiality or privilege for court ADR communications
- Other ethical guidance for neutrals, such as conflict of interest
- Immunity for court neutrals
- Requirements for reporting on the program
- Available sources of financial support for court ADR programs, such as filing fees
- Flexibility for local jurisdictions to form their own programs
- Approval processes for new or changed programs
Apply This Advice to Confidentiality
If your jurisdiction is in a state that has adopted the Uniform Mediation Act (UMA), you will have a privilege for mediation communications. Your jurisdiction may have a different statute or rule that describes how confidentiality operates. Whatever that framework is, it will directly affect how you design your mediation program.
The ADR Culture
When exploring your ADR culture, you will want to start with the use of ADR within your legal community and then the opinions, experiences and beliefs about ADR among judges, attorneys and neutrals. Is ADR accepted or frowned upon? Do the leaders in the legal community show interest in and commitment to ADR or do they actively discourage it? Is ADR used in some defined areas, such as divorce, but not in others? You will also want to know the perception of ADR in your community. For example, has ADR become so ingrained in an area of the law that it has lost its “alternative” nature? Is it seen as creating problems for parties? Has it become a barrier instead of a boon?
Don’t stop with the particular area of law in which you plan to develop or improve ADR. Think about cross-pollination. Small claims programs can learn from parentage programs and vice versa. Neutrals handling large civil litigation may have something useful to contribute to ADR in small claims cases.
Look beyond the legal community, too. You may find that your local community embraces ADR in other ways, perhaps using peer mediation in the public schools or restorative justice through social services. Local government may provide mediation for neighborhood noise issues or to handle complaints about police. Additionally, there may be statewide ADR services playing an important role in your community, such as mediation of conflicts involving special education services for students.
This exploration will enable you to identify the ADR leaders in your community. You probably will find that certain names come up again and again. Those leaders will be able to help you get a handle on the number of neutrals and their ability.
How the Legal Environment and ADR Culture Relate
Members of the planning committee may have varying perspectives on how ADR and the practice of law relate. Understanding these differences will enrich the development of the program and enable your committee to design a program to meet needs that may be in conflict.
Planning committee members need to explore:
- How do court and private ADR work together, if at all?
- What is the attitude toward ADR in the bar? Among the bench?
- How long ago were the first ADR programs established?
- How are longstanding programs operating now?
- Who are the leaders in the legal and ADR communities?
- How do the legal and ADR communities get along?
- Who and what are the bridges between the two?
Apply This Advice to Gathering Input
If you were considering an ADR program to address child support issues among parents who were never married, groups of lawyers practicing in this area might have radically different ADR experiences. Private lawyers who represent parents with substantial assets may be accustomed to using mediation to resolve parenting time and decision-making issues. Those lawyers who represent the state’s interest in moving custodial parents off public aid by increasing non-custodial parents’ child support payments may have had limited experience with mediation. Designing and implementing an ADR program in this setting would require a good understanding of both types of legal and ADR processes.
Once your planning committee has articulated their understanding of the ADR and legal environments and filled in the gaps of what is unknown, you will be able to develop a clear foundation on which to build your court ADR program. You will know the legal parameters that limit and support your program design. You will know what process is most likely to be accepted and have a grasp on what resources are available to support it. Perhaps most important, you will know the barriers that you must overcome in implementing an effective program.