The planning committee needs to determine how much your ADR program will cost and where the support will come from, even if some of the initial answers are “nothing” and “nowhere.”
The following are possible costs associated with conducting a court ADR program. They will vary depending on your program and available resources. Some of these decisions, such as filing fees and payments to mediators may be determined in your local or state court rules.
To keep a lamp burning, we have to keep putting oil in it.
- Mother Teresa
At the very least, someone must be responsible for ensuring cases move smoothly from the traditional court process into the ADR process and back again to the court process; tracking the progress of ADR cases; ensuring neutrals conduct quality ADR services, and conducting monitoring activities. The question is how much that will cost.
If your program is going to be small, you may not need a budget item for staff if administrative tasks will be undertaken by the judge presiding over the court call, a volunteer who is committed to mediation, or a court employee who adds the ADR program to their other responsibilities. If your program is larger or more complicated, you will need staff dedicated to program administration. This might range from a part of a staff person’s salary to a contract that supports an entire organization providing administration and ADR services.
Neutrals, judges, lawyers and staff need initial and continuing training. This training may be provided by the court or an outside trainer. Whether you or the neutrals will pay for the neutrals’ training often depends on whether the neutrals will be paid for their services. If your neutrals will volunteer their time, you will want to provide free or low-cost training. If your neutrals will be paid staff members, you will provide the training or hire neutrals who already have the requisite training. If the parties will pay the neutrals for their services, the neutrals usually pay for training.
You will have the responsibility of training judges and program staff, but such training may be inexpensive. For example, they can and should attend trainings that the program is conducting for neutrals. Initial training for lawyers who will represent parties in ADR processes can be conducted by the neutrals, staff and judges.
Ongoing training is often free brown bag lunches or half-day sessions. Speakers may be judges and program staff or outside speakers who have expertise that relates to the area.
Payment for Neutrals
As you design your program, you will need to answer a number of questions about payment of neutrals.
Will neutrals be paid or volunteer?
ADR has a long history of volunteerism. The use of volunteers as court neutrals also has a long history of controversy. Some see it as a way for new entrants into the ADR field to gain experience while providing a needed service – often to those who cannot afford ADR. Others believe the court is undercutting the development of ADR as a profession and taking advantage of individual neutrals. In terms of program management, there are costs involved with managing a roster of neutrals no matter their compensation.
If the neutrals are paid, who will pay the neutrals?
Deciding who pays the neutrals often comes down to balancing fairness (the court pays all neutrals for all services) and practicality (the court doesn’t have funds to pay for everything). If you decide that the parties will pay the neutrals, it is essential that the court provide access to ADR services to those who cannot afford to pay for them. This is especially true in situations such as divorce mediation where the court has a public policy interest in good outcomes for children.
How does the court provide services to those who cannot afford them?
You have a variety of options to ensure those who can’t afford services have access to them. One approach requires all neutrals who are on the court roster, and therefore receiving referrals of paid clients, to provide some number or proportion of pro bono services. This can be accomplished by assigning cases to these mediators on a revolving basis or by setting up a court call where the parties and the neutrals are matched. Another approach is for the court to pay neutrals to provide services to those who cannot afford them.
How much will neutrals be paid?
Deciding how much to pay neutrals will depend on what experience and training are required to become a neutral, how long the ADR sessions are expected to last, how often ADR services will be conducted and whether the neutrals will be staff or on rosters. If most of the neutrals are from a particular profession, such as law or social work, the planning committee often looks to the market rates for these services as guideposts.
Will neutrals be paid per case, per session or per hour?
It is more predictable and controllable for the court to pay neutrals on a case-by-case basis. With this approach, neutrals are paid the same no matter how many sessions are required. This works especially well in a program with a set number of ADR sessions per case. In an ADR program with an unpredictable number of needed sessions, paying on a case basis can provide a disincentive to schedule the additional sessions that might be needed for a particular case. On the other hand, paying on a case basis provides some incentives to move the case along.
Pitfalls to Avoid When Managing Volunteers
Don’t assume that ADR services provided by volunteers will be free of cost.
Someone must select, supervise, motivate and maintain a pool of volunteers.
Space and Furniture
You may need furnished space for administration and for conducting ADR sessions. A rule of thumb for many programs is that the court will provide space to conduct ADR services if the court is paying the neutrals, but the neutrals must provide their own space if they are being paid by the parties.
Travel, Conferences and Registration
Judges and program staff may need to attend conferences to present information on the project or learn about other approaches. Or they may need to conduct outreach to garner participation in the program.
Monitoring the System
You will need to set up a system to monitor how well your program is working. This can range from an Excel spreadsheet on a court computer to a specially-designed database to track all stages of the ADR program.
An evaluation of your program can prove its effectiveness to current or potential funders, such as the legislature, help you to determine what needs to be done to improve it, and give the public and other stakeholders information on the program. (See Research & Evaluation for information on RSI's services.) A comprehensive, thorough evaluation of your court ADR program can be costly. Working with a local university can reduce those costs, but that will also increase the amount of time it will take to educate the evaluators about the program.
Computer, Phone, Fax, Scanner, Supplies, Postage and Printing
The program administration office will need access to the usual array of office technology and supplies.
Outreach and Promotion
If parties from the general public need to be made aware of the program so that they opt into it, as is the case in many mediation programs, the planning committee will need to budget for brochures, ads, travel to make community presentations, etc.
Income and In-Kind Support
The following are possible sources of support for a court ADR program. Their availability will depend on your jurisdiction and your program.
Even with the tight financial times for courts, they sometimes budget funds to adopt new ADR programs or expand existing programs. In the past, some state judiciaries have provided seed money to local jurisdictions to establish ADR programs, with the understanding that the jurisdictions must replace the funding as the program continues.
County or State
Funds may be available for court programs from the state – either through legislative appropriations or allocations of executive branch funds. Depending on how your judiciary is organized, you may be able to obtain local funding from your county or municipality.
Your planning committee may be able to get an additional filing fee added onto civil or family court filings to pay for an ADR program.
State and local bar associations and their foundations, if applicable, may be interested in funding part of your program. The start-up costs, such as training, may be especially attractive funding targets for them.
Many of the needs of an ADR program could be contributed on an in-kind basis. Examples include space for training, administration or ADR services; trainers; food; office technology and supplies.
Local businesses and corporations may be interested in supporting a court ADR program. For example, a company with an interest in families may want to help support a child protection mediation program.
Volunteers are the lifeblood of many court ADR programs, especially mediation programs for small civil, housing, family and minor criminal matters. Their services can be a significant source of in-kind support for your program. Even so, they require supervision, scheduling, support and continuing training. So, if your planning committee settles on a program with volunteer neutrals, be sure to include those support expenses in your budget.
If the court is waiting for funding such as the filing fees to accumulate before it can start its program, it may be able to get a loan from the local government or bar association. Borrowing money with the expectation that private funding will repay the loan is rarely a good idea.
Existing Court Resources
The court may have many of the resources needed by the program. Examples may include room to conduct ADR services, staff to assign to ADR responsibilities, or technology and supplies for the program to use.
The court may partner with other entities to provide ADR services. One example seen across the country is partnerships between community mediation programs and courts. While these organizations can provide highly skilled volunteer neutrals, the court must be careful not to ask too much for too little. Community mediation programs have expenses, too. Other court partners include law school clinics and professional organizations, such as those serving lawyers and ADR professionals. Again, while these may be able to provide skilled neutrals, they may have their downsides. Law school clinics are seasonal and may not be able to provide a consistent level of service unless paired with another source of neutrals. Those involved with professional organizations may have some mixed loyalty in terms of trying to establish themselves as ADR professionals and providing services through the courts.
While “common sense” says that ADR saves money, the research doesn’t necessarily back that up. The only way to know what your program is going to cost and the best way to fund it is to develop a budget, keep refining it during your planning process, and find the support the budget requires.