Not only are the court rules for an ADR program critical to the functioning of your program, but the process of drafting them also educates your planning committee about the program, involves them in deciding how it will actually function, and gets all the stakeholders on the same page. Unless your jurisdiction has rules set by a higher authority, it may take a bit of time and effort to write the rules for your program. But taking the time to engage in this process will result in a program that is well thought out for the community and a group of leaders who are committed to the program. It can also reduce the likelihood of problems arising after the program is launched.
You Don't Have to Start From Scratch
Writing your rules may seem daunting to your planning committee at first. Fortunately, you will not have to reinvent the wheel when writing your rules. RSI has selected a number of exemplary rules with guidance on how to adapt them for your own use. All of this is found in RSI’s Guide to Exemplary Rules. You may want to skim over some of those samples before digging into this chapter.
Necessary Characteristics of Rules
To be understood and to avoid future problems, rules need to be clear, precise and thorough.
Write rules in easily understood language that is well-organized in intuitive chunks of information. It’s second nature to write the rule in “legalese,” especially because you may be adapting your rules from an existing set of rules, but this type of language can be unclear and confusing. Adopting clearer, less formal language, is helpful for everyone participating in the program, and with an increase in self-represented litigants, it’s even more important to write rules in plain terms.
A good rule of thumb is to write your rules so that a seventh or eighth grader can understand them. The Readability Test Tool gives you the results of multiple readability tests. Use these as guidance on how well lower literacy disputants will understand your rules.
The federal court’s Guidelines for Drafting and Editing Court Rules is an excellent resource for writing rules. Its focus on clarity, brevity and readability is just as applicable to state courts as federal.
Write rules that are precise and internally consistent. This reduces the possibility that conflict will arise in how they are interpreted and lead to unnecessary hearings on issues arising from the ADR process. Similarly, rules must not conflict with one another or with laws.
For example, if your state has adopted the Uniform Mediation Act or a similar law or rule regarding confidentiality, you will need to be especially careful about what you say in your rule about confidentiality.
Apply This Advice to Mediation Confidentiality
When a rule states that communication in mediation is confidential, what does this mean? What constitutes a communication in this context? Does it include spoken communication as well as written communication? Is it limited to what is talked about in the mediation session, or does it include information provided to the mediator before the session begins? Leaving this open to interpretation creates the possibility that conflicts will arise between the parties, between a party and the court, or between the mediator and the court about what is confidential and what is not.
To be thorough, write rules that cover all areas of the process, from eligibility and referral to termination and reporting. The more thorough a rule is, the more control the court has over the quality of the ADR process.
Pitfall to Avoid When Writing Rules
Don’t expect your rules to cover every eventuality.
While you want to be comprehensive, trying to imagine every possible situation and write rules to cover them would lead to overly complex rules. Your planning committee will need to find the right balance between being thorough and being too detailed. Along those same lines, you may see the need for flexibility in some parts of the rule. For example, when writing the portion of a mediation rule that relates to referral to mediation, a court may define when and how a case is referred, but leave open the option for a judge to refer on a case-by-case basis at any time.
Four Tips for Writing Rules
Identify a Single Individual Who Will Draft the Rules
Drafting rules is hard enough without having the entire planning committee tackling the task as a group. It will be more efficient to select a member of the committee to draft the rules. Be sure the drafter is able to draft rules that serve all parties, not the interests of one particular group. When changes are needed during the drafting process, the planning committee should tell the drafter what the group’s decision is and then leave it to the drafter to come up with the wording.
- Develop a flowchart: A visual tool like a flowchart, which indicates the timeframe for each step in the ADR process and who has responsibilities within those steps, will help stakeholder visualize the program and clarify how it will work.
- Start drafting the rules early: Once you have a good idea of what the parameters of the program will be, start drafting. Don’t wait until the program is completely set to start drafting because there will be several rounds of edits based on stakeholder input. Plus, the drafting process will raise issues the planning committee will need to address.
- Be sure you know what your court’s rule approval process is: For example, if the presiding judges must approve all rules and they only meet twice a year, you may need to adjust your process and timeframe for completing the rules.
Pitfall to Avoid When Writing Rules
Don’t try to speed through rule-writing.
It is important to take the time to write the rules thoroughly the first time so that they do not need to be amended soon. Eventually, the program's monitoring group may make suggested changes to the rules, but those changes should be based on experience with the program, not because work was left undone. For example, if your planning committee writes rules for how neutrals are added to the roster, but not how they may be removed, your program may find itself in a bind when faced with a problematic neutral.
What to Include in all Rules
While each set of rules will be different, based on a program’s design and the particular needs of the court, all rules need to be clear on a number of topics. All rules should cover the topics discussed below.
Include definitions of key terms and concepts. Clear definitions set the stage for the entire rule. They outline the court’s own understanding of what the program is doing and what services it is providing.
A rule with a good definitions section is Maryland’s Title 17: Alternative Dispute Resolution.
Always state clearly which cases must be, can be, or cannot be sent to ADR.
ACCESS TO ADR
If your rules call for the parties to pay the neutrals, you should include a provision for those who cannot afford to pay for services. Options include requiring the neutrals to provide pro bono services each year, having the court pay for the services, or giving parties the option to use a volunteer-based service. In any case, you should be sure that the quality of services is the same as for those who pay.
The referral process should include whether cases are automatically assigned to ADR, whether the court orders cases to ADR on its own discretion and/or at the request of one or more parties, and whether and how parties may opt into or out of the process. See Chapter 7: Decide Which ADR Process to Use for a discussion of mandatory, opt-out and opt-in processes and Chapter 8: Design the Mechanics of your Program for mechanics of the referral process.
STAY OR NOT
Your rule should indicate whether discovery or other proceedings are stayed or not stayed while the case is in the ADR process. Chapter 8: Design the Mechanics of your Program has more information about this.
ADR should help cases to move expeditiously through the judicial system. Therefore, your rules should set strong and reasonable deadlines for moving cases through the ADR process. Strong deadlines assure that ADR will not lengthen the amount of time a case spends on the docket. Reasonable deadlines provide for enough time to accomplish the task at hand without necessitating a motion to extend the deadline. The deadlines should include when in the life of a case it is referred to ADR, selection of the neutral, date of the first session, completion of ADR, and reporting of the results.
Pitfall to Avoid When Creating Deadlines
Beware of being unrealistic when writing deadlines into your rules.
Your planning committee will do well to follow the Goldilocks principle. Deadlines should be neither too short nor too long. If they are too short, there is insufficient time to conclude ADR. If they are too long, ADR delays time to case completion rather than shortening it. Either way, the benefits of ADR can be lost. Judges, stakeholder attorneys and neutrals should have a sense of how long each step of the ADR process should take, from scheduling the ADR session to providing preparation documents. Use their insights, but be sure to get feedback after the program begins to determine if the deadlines are need to be adjusted.
Your rules must address the parties’ privacy expectations. Confidentiality in party-centered processes, such as mediation, helps the parties to discuss issues openly and candidly without fear that what they say or do will be used in any later proceedings. This, in turn, makes such processes successful. In more adjudicative processes, confidentiality may be very limited or simply not be part of the process.
Your confidentiality rule must be explicit about what parties and neutrals can and cannot communicate about what occurred during the ADR process and whether the scope of permitted communications changes based on with whom they are communicating. It should also detail any exceptions to confidentiality.
Your rule should be precise about what the scope of ADR is. For example, if your rule says that all communications in a mediation are confidential, you must state what is considered to be a communication in a mediation. Does a mediation communication include the pre-mediation phone call and the materials provided to the mediator prior to the first mediation session? Does it include the settlement itself? Be especially careful to ensure your rule does not contradict other confidentiality rules or laws that apply in your jurisdiction.
The U.S. District Court for the Northern District of California has written a good confidentiality rule for its ADR program.
REMOVAL OF NEUTRAL
Since courts have oversight of neutrals, you need to include a process for parties to ask for the removal of an assigned neutral in the case of conflict of interest or perceived ethical lapse.
ATTORNEY AND PARTY RESPONSIBILITIES BEFORE, DURING AND AFTER THE ADR SESSION
Your rules should include attorney and party responsibilities. This helps them to understand what they need to do and should make the process run more smoothly. How complex the description of responsibilities is will depend on the complexity of the cases being handled through ADR. A small claims mediation program will require much less complicated rules than an arbitration program for intellectual property disputes.
Rules typically discuss attendance requirements, including the responsibility to have someone with authority attend the ADR session, and the parties’ responsibility for compensating the neutrals. They often require attorneys to explain the ADR process to their clients and to discuss the option of using it with them. They may also detail what materials attorneys should provide the neutrals and state what information the attorneys should provide to the court.
SELF-REPRESENTED LITIGANT RESPONSIBILITIES BEFORE, DURING AND AFTER THE ADR SESSION
Clear and explicit party responsibilities are especially important if your program will serve parties who are not represented by attorneys. While these parties may not read the rules, describing their responsibilities in your rules will enable judges and program staff to provide clear direction about how to participate in the program.
The North Carolina Rules Implementing Mediation in Matters before the Clerk of Superior Court does a good job of outlining these responsibilities.
NEUTRAL RESPONSIBILITIES BEFORE, DURING AND AFTER THE ADR SESSION
You should also describe the responsibilities of the neutrals, such as disclosing conflicts of interest and informing the parties of the scope of confidentiality. This helps to control quality and gives attorneys and parties an idea of what to expect from the process. This can help to (1) reduce complaints either because the neutrals better understand their responsibilities or because they are better understood by the parties, and (2) determine if neutrals have not acted according to their responsibilities once complaints have been filed.
Two rules that have done a good job outlining these responsibilities are the South Carolina Circuit Court Alternative Dispute Resolution Rules and the Rules of the North Carolina Supreme Court Implementing Settlement Procedures in Equitable Distribution and Other Family Financial Cases.
NEUTRAL TRAINING, QUALIFICATIONS AND SELECTION
In order to maintain control over the quality of the neutrals providing ADR for your program, you will need to include rules regarding neutral qualifications and selection. This will reduce conflicts about the selection or appointment of neutrals. Your rules should include:
- How a list or roster of qualified neutrals to conduct ADR processes is maintained (if you have decided to use a roster). This should include how neutrals apply to be put on the roster, what they need to do to stay on the roster and how they are removed from the roster.
- Training and qualifications of neutrals. Quality begins with the neutrals; therefore, it is essential to include training and qualifications that the neutrals will need to effectively conduct the sessions/hearings. Your planning committee will decide how neutrals get on the roster, what they have to do to stay on it and how they are removed from it. More information on this topic can be found in Chapter 9: Select and Manage Your Neutrals.
- How an individual neutral is selected for each case. Your rule should address who selects the neutral -- the parties or the court. It should also describe the selection process. For example, if the parties select the neutral, what happens if they can’t agree on a particular neutral? What if a party objects to a court-appointed neutral? See Chapter 8: Design the Mechanics of your Program for more information on this topic.
- How neutrals are paid. If your neutrals will be volunteers, your rules should say so. Otherwise, the rule should explain how neutrals are paid, e.g., per case, per hour, how much and by whom. Learn more at Chapter 8: Design the Mechanics of your Program.
STANDARDS OF CONDUCT FOR NEUTRALS
Include standards of conduct for neutrals. This helps to hold them to certain ethical and competency standards, increasing quality and providing potential grounds for removal from the court roster. The standards don’t have to be written by the court. They can be adopted from model documents, such as the Model Standards of Conduct for Mediators or the Model Standards of Practice for Family and Divorce Mediation. See Chapter 6: Apply Standards for Court ADR for more information.
Many courts protect their neutrals from liability by providing them with quasi-judicial immunity. Others state that they are immune from lawsuit for any action with the exception of gross misconduct or negligence. In any case, you should grant neutrals some form of protection -- either due process or immunity -- so that they can perform their duties without fear of reprisal for such things as unfounded allegations of bias. Even with immunity, you may want to require neutrals to carry malpractice insurance to cover their costs of defense if they are sued.
You also should design a complaint process that allows parties to make complaints against neutrals who do not fulfill their duties. The design should include due process protection for the neutrals during the complaint process, understanding that some complaints may lack foundation.
Georgia’s Ethics Procedures contain a well-constructed complaint process.
MONITORING AND EVALUATION
You should include a process to monitor the health of your ADR program. This is true even if you are simply referring cases to another organization to conduct ADR. If another organization is providing the service, you can require the organization to provide statistical reports about the program. You can find detailed information on this topic in Chapter 11: Design a System to Monitor Your Program, and Chapter 15, Evaluate Your Program (coming soon).
A particularly good example of an evaluation requirement is the U.S. District Court for the Northern District of California Local ADR Rules.
A Note on Good Faith Requirements
If your planning committee is writing rules for a mediation program, you will need to decide whether to include a good faith requirement. Your planning committee may find that including a requirement that parties mediate in good faith is a very appealing idea. Stakeholders, naturally, would want parties to mediate in good faith. In practice, the realities of enforcement of these requirements make most good faith provisions pointless.
Subjective good faith clauses are open to interpretation and antithetical to the tenets of confidentiality and mediator neutrality on which mediation is based. Imagine one party accuses the other of not acting in good faith in a mediation. How would a court resolve the matter? The court would need to hold a hearing, the parties would call witnesses (likely including the mediator), and the judge would hear testimony. This would necessarily violate confidentiality and mediator neutrality. Even a simple requirement that the mediator report whether parties acted in good faith violates these same foundational principles of mediation.
Understanding that a subjective measure of good faith is not workable, your planning committee may consider an objective requirement. This is intended to approximate good faith and does not run counter to confidentiality, but it will fall short of engendering the kind of candid exchange envisioned by those seeking good faith participation. The typical objective standard is to require a party with full settlement authority to attend the mediation. Whether a person is in attendance or not is an objective standard that makes it easy to determine whether a party is in compliance, but even this standard may require some finessing. Be sure to define what “attendance” and “authority” mean. If attendance must be in person then you should state this explicitly in the rule. And if the attending party may call someone who is not in attendance for approval of terms, your rules should state that clearly.
But how much is enough authority? Sometimes a court will require that an individual with authority up to the most recent demand be present from the defense. That doesn’t work all the time. For example, in situations involving public entities that must obtain settlement approval from a governing body, e.g. a city council, there is no individual who has the authority to bind the public entity. Bottom line: we do not recommend including a good faith requirement in your rules.
Rules for Particular Case Types
Below are issues that you should address when writing rules for the most common types of cases in ADR programs.
Intimate Partner Violence
Intimate partner violence (IPV), sometimes referred to as domestic violence, is one of the most important issues you need to address in rules for family cases. When there has been IPV, the party who has experienced violence may or may not be able to negotiate on her or his own behalf as would happen in a typical mediation. Additionally, there may be the risk of violence before, during or after the mediation. The first decision you need to make in your rules is how to determine whether there has been IPV. Who will conduct screening? How will they screen? How will screening for IPV relate to orders of protection? What are the options based on results of screening? Will your program allow cases involving IPV to be mediated, and if so, how will this be done safely and effectively?
There are strong arguments for permitting such cases to be mediated, just as there are strong arguments against it. One thing is clear: do not permit mediation unless you have a proven protocol in place for identifying cases and ensuring both parties’ safety and ability to negotiate on their own behalf. (See Mediating Family Disputes in a World with Domestic Violence: How to Devise a Safe and Effective Court-Connected Mediation Program for a discussion of these arguments.) If you decide that such cases should be mediated, the rules should call for the mediators to be specially trained in IPV issues and how to adapt mediation appropriately. The protocol you design must safeguard the physical and emotional well-being of the abused party, as well as that party’s legal rights.
Role of Attorneys
Custody and visitation cases often involve self-represented parties, and mediations are sometimes attended solely by the parents without counsel. As such, your rules should address whether the parents have the opportunity to have any agreement be reviewed by an attorney.
Discovery is a particularly important issue in civil mediation. You generally have three options about how to handle discovery during mediation: stay any discovery until mediation is completed; allow discovery to continue while mediation is in progress or have the judges decide what to do on a case by case basis. There are good arguments for all three. The argument to stay discovery is that this will save litigants money, which could be used in the settlement. Alternatively, the argument to allow discovery to continue is to allow the case to progress so that mediation does not delay resolution. Having the judge decide on a case-by-case basis, it is argued, will allow judges the flexibility to decide when it is more important to stay discovery or let it continue based on the circumstances of individual cases. What’s most important is that you give the attorneys the opportunity to conduct enough discovery so that they and their clients have sufficient information to participate meaningfully in mediation.
Some programs don’t allow cases to be mediated unless both parties are represented. This is done with the belief that this keeps power balanced between the parties. If you decide to adopt this model, be aware of the loss of access to mediation for unrepresented parties. You may want to consider including a provision for pro bono representation in mediation in your rules or provide training to your mediators on how to mediate disputes involving self-represented litigants so that self-represented litigants have the option to mediate.
All civil non-binding arbitration rules need to address whether sanctions should be imposed on a party who rejects an award. Courts have imposed high fees for rejecting the award. Some courts impose the fee on the party who rejects an award no matter what the outcome of the case is at trial. Others only impose a fee if the verdict at trial is not more favorable than the award or more favorable by a relative amount. Many others impose no fees. Arguments against imposition of fees focus on arbitration as a non-binding process in which parties may pursue a trial de novo if they are dissatisfied with the result in arbitration. In these arguments, imposing a steep penalty for rejection of the arbitration award is seen as building too great a barrier to the traditional courtroom. Arguments in favor of fees focus on the desire to reach a resolution at the arbitration stage. Those who take this position argue that without disincentives, arbitration can become a costly, ineffective step on the way to trial.
Proof of summons is very important in ADR programs that handle foreclosure cases. The date of service of process is often used to calculate deadlines for homeowners to contact the program. Courts also often require that specific information about the dispute resolution program be included with the summons.
Some courts require the homeowners to attend housing counseling in order to better understand their options and responsibilities, and for help in completing their loan modification packet. If you decide to have such a requirement, you will need to address deadlines to complete housing counseling and any possible exceptions, such as for those who have legal representation.
Appropriate deadlines are essential for foreclosure dispute resolution programs in order for the case to move quickly through the process without the timing being too short for the parties to complete the steps prior to the deadline. You should include deadlines for the homeowners to contact the program, to submit their packets, and to submit any additional documents required by the lender. You should also include deadlines for the lender to review the packet and request any further documents. Additional deadlines include completion of housing counseling and scheduling of the first mediation session.
Your rules should include sanctions for either party not complying with the court rules. For homeowners, that sanction generally is for the case to be removed from the program. For the lenders, sanctions generally involve adding extra time for the homeowners to work their way through the program.
CHILD PROTECTION AND DEPENDENCY
Timing of Referral
Child protection mediation rules should always address the point at which a case can be referred to the program. The options range from only at the beginning of the case, only at the end, only after disposition, or at all stages of the case. Use the goals of the program to inform this decision. For example, if a goal of your program is to find appropriate foster home placement for children as soon as possible, you’ll want to make sure that referral is early in the case. If the goal is to help the natural parents adjust to the termination of their parental rights, referral should be at the end of the case. More universal goals of reducing conflict among those involved in the case, increasing parental compliance with treatment plans or increasing parental involvement in the case indicate that referral should be at all stages of the case.
Case Types and Issues to be Mediated
You also need to address what types of cases can be referred and what issues can be mediated. Some programs focus on neglect cases and leave it to the discretion of the judge as to whether a case involving physical or sexual abuse may be referred. In some programs, any issue can be mediated, while others permit mediation only of specific issues, such as services for the natural parents or foster home placement. This goes hand in hand with the timing of the referral. If your program is limited to specific issues, timing will be early or late in the case depending on the issue. For example, early referrals may be limited to services and placement, while very late referrals may be limited to case closure issues, such as guardianship arrangements or post-adoption visitation. If you decide to include a broad range of issues, referral should be allowed throughout the course of the case.
Intimate Partner Violence
Because many child protection cases involve violence between parents, and mothers and fathers often attend the same mediation, it is essential that a protocol be put in place to determine the level of abuse and the necessary steps to safeguard the health and well-being of the abused party when both mother and father will be participating in the mediation.
While juvenile justice cases are briefly covered below, you may find more detailed information from the Department of Justice’s Office of Juvenile Justice and Delinquency Prevention.
Criteria for Inclusion
Most juvenile programs limit the types of offenses that can go to ADR. Most include only misdemeanors and some include only non-violent offenses. Characteristics of the offender also often limit inclusion. Many programs only include first-time offenders. Others limit the program to those who are younger in age. Your rules should be clear about what types offenses are appropriate and who is eligible.
Your rules should also include details about who is responsible for screening cases for appropriateness for ADR and at what point in the case screening and referral can occur.
Permitted Terms of Agreement
You may want to define the scope of the terms to which the parties can agree. These terms may include restitution, community service, apology, behavioral changes on the part of the offender (such as increased school attendance or joining an after-school club) or how the parties will interact in the future.
Who Monitors Compliance and for How Long
For those programs in which offenders must complete requirements outlined in an agreement or contract, you will need to decide who will ensure that the offender has done so, and how long agreements contracts should be permitted to last.
The process for referring cases to mediation at the appellate level is largely based upon the screening of appropriate cases. The most important issue you need to address in the screening of cases at this level is who does the screening. Initial screening in voluntary programs may be done by the judge or the attorneys. Mandatory programs also need screening because not all cases go to mediation, even in mandatory programs. In this case, you may want a knowledgeable staff member to screen the cases.
Alabama’s Rules of Appellate Mediation contain a good screening process.
You may feel that you spend an inordinate amount of time writing your court rules and that you receive more input than you could possibly use, but it will be effort well spent. Just as the rules are the framework that supports the entire structure of your program, the process of developing the rules can provide your planning committee with a useful framework for reaching agreements about how the program will operate. This is one situation where getting a wide range of perspectives really is useful. Reach outside your planning committee. Stakeholders will have varying points of views about the rules and their diverse input will strengthen the eventual product.