How Do Courts Use ADR?
Court ADR programs address conflicts that run the gamut from neighborhood disputes to multimillion dollar commercial deals gone sour, family conflicts to personal injury, small claims to probate disputes, employment discrimination to competing trademark claims, landlord-tenant troubles to consumer complaints. Some provide services to victims and offenders who want to come to an understanding. ADR is even sometimes available to resolve cases on appeal after they have been decided by a trial court. By offering alternatives to resolve many different types of cases, courts use dispute resolution methods that best suit the needs of the litigants and the effective administration of justice.
The way in which a particular court case will make its way into and through a court-related ADR process will depend on the decisions the court has made when creating the opportunity for cases to move through alternative processes. These decisions can be seen in terms of continua that establish how close a program is to the court, how mandatory or voluntary a process is, who the neutrals are and whether and how they are compensated, how confidential the process is, and how binding the process is.
How do ADR processes fit into court processes?
Court ADR programs work in conjunction with the traditional case flow, typically providing access to ADR services for entire sectors of a court (e.g., civil or housing) or for particular types of cases within a sector of a court (e.g., landlord-tenant cases). In either case, the programs can be placed in a continuum based on how close they are to the court.
On one end of this continuum, some courts will establish programs within the court structure with court staff providing ADR services. Somewhere in the middle, the court will develop and maintain a roster of neutrals from which neutrals are appointed. On the other end of the continuum, further removed from the court, the court will contract with an entity to administer the program and provide services on the court's behalf. Note that this all assumes there is an actual program with which the court is working. The court could also informally suggest participation in an ADR process without referring to any particular program or neutrals, but this discussion assumes there is some entity involved.
Is participation in ADR processes required?
An important continuum in court ADR is whether participation in the program is mandatory or voluntary. While these may seem like two exclusive options, rather than a continuum, there are multiple ways to define these poles on the continuum. In terms of the concept of "mandatory" mediation, programs typically have some types of cases that are excluded, e.g., criminal cases that are excluded from appellate mediation or cases alleging abuse that are excluded from divorce mediation. This means that "mandatory" is not truly defined as total participation as it would seem to imply. When it comes to "voluntary" mediation, the term also may be somewhat of a misnomer. There may be varying levels of encouragement from judges to participate in voluntary mediation ranging from ignoring the opportunity altogether to strong-arming tactics. Sometimes mediation becomes so ingrained in the way that law is practiced in a particular area that it loses its voluntary nature. With this multiplicity of ways that the concepts of mandatory and voluntary participation play out in reality, they are certainly not simply two distinct concepts.
Who provides ADR services and who pays for them?
Another continuum in court ADR is who is going to provide the ADR services and that relates to who is going to pay the neutrals. In some programs the court has paid staff members who provide ADR services. Moving along the continuum, the next step would be for the court to maintain a roster of neutrals - independent contractors - who are paid by the court and selected by the court for each case. The court could also maintain a roster of independent contractor neutrals who are chosen by the parties. To move along the continuum, rosters can be maintained by the court and utilized in other ways: the parties can pay; the neutrals can volunteer; or some combination. Even further along the continuum, the court can contract with other entities to maintain rosters of mediators, and those mediators might be paid through a contract with the court, paid by the parties or volunteers. In addition, there are some combination plans where the mediators volunteers for an initial block of time and then work out a payment plan with the parties for any service following that initial time.
Are ADR processes confidential?
Another continuum to consider is confidentiality. In general, there can be confidentiality regarding an ADR process, the outcome of an ADR process (e.g., mediation agreement or arbitration award), both, or neither. Also, some participants may be bound by confidentiality while others may not. Certain participants may be able to assert a privilege so that testimony or evidence regarding what occurred in the ADR process cannot be presented in court.
The role confidentiality plays in ADR varies greatly from process to process. In mediation, for example, confidentiality is central, while it is not in arbitration. The outcomes of mediation may or may not be confidential, however. In commercial litigation, the parties may elect to have their settlement be confidential, although by doing so, they lose the power of the court in future enforcement of a judgment, or they may also request that their agreement become the order of the court. On the other hand, some other agreements, such as those regarding child custody and visitation, may have to be approved by the court as being in the best interests of the children, even though they were mediated in a confidential setting.
Are the outcomes of ADR processes binding?
The final continuum to consider is whether the result of an ADR process is binding or nonbinding, i.e., whether the parties are required to adhere to it or not. While this may seem like simply two options, there are additional possibilities. For example, rules for court arbitration programs can place pressure on parties to accept awards by assessing costs for rejecting an arbitration award or for rejecting an award and not achieving a better outcome at trial. Such costs can serve to make the award less likely to be challenged by placing obstacles in the way of moving the case back to court. On the other hand, mediation is generally considered to be a non-binding process because reaching agreement is completely voluntary. However, agreements reached in mediation typically contain the elements of a contract, so that mediations that reach agreement are most likely to be binding to the same extent as a contract.
There is no single way in which parties experience court ADR programs. Each court can make a series of decisions about how ADR will work for particular case types. These decisions dictate where a program falls on the continua above.
Selected Resources turn annotation off
The Arguments For and Against Mandatory ArbitrationBrazil, Wayne D.; Wilson, Jr., William R.. FJC Directions, 7: 14-17, Dec. 1994
Abstract: This article is a debate about the value of mandatory arbitration programs. Judge Brazil argues that only a mandatory arbitration program can meet significant needs of smaller-case litigants. Judge Wilson argues that mandatory arbitration is a violation of the Seventh Amendment.
Publisher or Resource Origin
Federal Judicial Center
Comparing Structures for the Delivery of ADR Services by Courts: Critical Values and ConcernsBrazil, Wayne D.. Ohio State Journal on Dispute Resolution, 14(3): 715-811, 1999
Abstract: The author conducts a comparison of the five most common ways of structuring court-connected mediation programs by looking at the values that are important in the court system: justice and public respect for the judicial system as a whole. These goals are best met when the court funds ADR services and neutrals are on staff.
Publisher or Resource Origin
Ohio State Journal on Dispute Resolution