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Judicature Alternative Dispute Resolution and the Courts

Date: Feb 1986
Length: 68 pages
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Shaman, J.M. 1
Begue, Y.
Gewerth, K.E.
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Abramson, L.
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Houston, S.
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Stanford, J.
Wilson, R.
Alfini, J.J.
Rosenberg, M.
Galanter, M.
Cooley, J.W.
Hensler, D.R.
Brazil, W.D.
Kahn, M.A.
Newman, J.P.
Gold, J.Z.
Lambros, T.D.
Goldberg, S.B.
Green, E.D.
Sander Fea
Menkel-Meadow, C.
Finkelstein, L.J.
Davis, A.M.
Martin, J.H.
Vanderbilt, A.T.
Lambros, T.
Davis, A.
Goldberg, S.
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Bankoff, J.R.
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Short, B.P.
Woolfenden, H.L.
Hetlage, R.O.
Turnage, W.E.
Jameson, W.J.
Hewitt, J.W.
Manoukian, N.E.
Batchelder, W.F.
Pollock, S.G.
Kimmelman, I.I.
Earp, A.C.
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Alfini, J.J.
Rosenberg, M.
Galanter, M.
Hensler, D.R.
Coulson, R.
Brazil, W.D.
Kahn, M.A.
Lambros, T.D.
Goldberg, S.B.
Green, E.D.
Sander Fea
Menkel-Meadow, C.
Davis, A.M.
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Orbeton, J.
Martin, J.
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Annotations

1. Shaman, J.M. Named Person
  • Affiliation:

    Ctr for Judicial Conduct Organizations

2. Robins Named Person
  • Affiliation:

    Univ Press of Hi

3. Fiss, O. Named Person
  • Affiliation:

    Yale Law School

4. Olson, R.L. Named Person
  • Affiliation:

    Special Com

5. Mcgillis, D. Named Person
  • Affiliation:

    US Dept of Justice

6. Grinswold, E.N. Named Person
  • Affiliation:

    Harvard Law School

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Page 1: kps32f00
judicature THE JOURNAL OF THE AMERICAN JUDICATURE SOCIETY FEBRUARY MARCH 1986 VOL 69/NO 5 James J. Alffni Maurice Rosenberg 252 Alternative dispute resolution and the courts: an introduction 254 Query Can court-related alternatives improve our dispute resolution system? i Marc Galanter John W. Cooley Deborah R. Hensler Wayne D. Brazil, Michael A. Kahn, Jeffrey P. Newman and Judith Z. Gold Thomas D. Lambros Stephen B. Goldberg, Eric D. Green and Frank E.A. Sander Carrie Menkel-Meadow Linda J. Finkelstein Albie M. Davi3.- Lincoln Clark and Jane Orbetom - John H. Martin 256 The emergence of the judge as a mediator in civil cases 263 Arbitration vs. mediation-explaining the differences 270 What we know and don't know about court- administered arbitration 279 Early neutral evaluation: an experimental effort to expedite dispute resolution 286 The summary jury trial-an alternative method of resolving disputes 291 ADR problems and prospects: looking to the future 300~ Review essay: Dispute resolution: the periphery becomes the core Dispute Resolution, by Stephen B. Goldberg, Eric D. Green and Frank E.A. Sander 305 Focua-. The D.C. Multi-Door Courthouse Community mediation in Massachusetts: lessons from a decade of development Mandatory mediation of divorce: Maine's experience Eighth Circuit Court of Appeals pre-argument conference program. 3I4 AJS Today COVER ILLUSTRATION BY ROBERT ROBERTSON JUDICATURE Th. Journal of th. American Judicature Society (ISSN 0022-3ltl0). Wlum. EY. Numbar 0. Fehrwry-Mareh. Published bi-montMy. Circulation 30.OO1). Individuai subacriptlona $18.00 a yaar, dsingle Nauw. 19. Views and opinions in articies ars not to be taken as official expressions of the American Judicatur.8'odNys policy unless so atatad. Copyright a19l8 by tM Amaridn Judicatur.8ocfatr. UP m25 PhotooDPWO ot Individual arflcNamay bamaM withcut permission. Thw must be usedaxclutlvMy for aducational purpofaa, with no direct or indin at commercial adranlaya, and must include a notlca of copyright Address chanpa, editorial communk.attona and noticea on Form 9679arsto ba pMto25 EatNlWhinpton. Suita 1600, Chicago. minoh 80002. TITX 0022204
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Arbitration vs. mediation- explaining the differences by John W. Cooley This article is adapted from a version that appeared in the CHICAGO BAR RECORD (January-February, 1985). 1. Robins, A CUIDe FOR LABOR MeotAroas 6 (Honolulu: University Press of Hawaii, 1976). 2. Id. 3. Elkouri and Elkouri, How ARBITRATION WoRRS 24 (Washington, D.C.: BNA, 3rd ed. 1973). 4. Id. at 25. n amazing number of lawyers and business professionals are unaware of the differences be- tween arbitration and media- tion. Their confusion is excusable. In the early development of the Eng- lish language, the two words were used interchangeably. The Oxford English Dictionary provides as one historical definition of arbitration: "to act as for- mal arbitrator or umpire, to mediate (in a dispute between contending parties)." The Statutes of Edward III (1606) refer- ring to what today obviously would be called a commercial arbitration panel, provided: ` And two Englishmen, two of Lombardie and two of Almaigne shall (be) chosen to be mediators of questions between sellers and buyers."1 Modern labor relations statutes tend to perpetuate this confusion. As one commentator has observed: Some statutes, referring to a process as "me- diation" describe formal hearings, with wit- nesses testifying under oath and transcripts made, require reports and recommenda- tions for settlement to be made by the neu- tral within fixed periods, and either state or imply the finality of the "mediator's recom- mendations." In one statute the neutral third parties are called, interchangeably, mediators, arbitrators and impasse panels.2 The Federal Mediation and Concilia- tion Service (note the absence of "arbi- tration" in its title) performs a basic arbitration function by maintaining a roster from which the Service can nomi- nate arbitrators to the parties and sug- gest "certain procedures and guides that [the Service believes] will enhance the acceptability of arbitration."3 The National Mediation Board (em- phasis added) performs important func- tions in the promotion of arbitration and the selection of arbitrators for the railroad and airline industries.'t Libraries also assist in perpetuating the arbitration/mediation definitional charade. Search under "mediation" and you will invariably be referred to "arbi- tration." In the midst of this confusion- even among congressional draftsmen- it is time to explain the differences between the processes. The most basic difference between the two is that arbitration involves a deci- sion by an intervening third party or "neutral;" mediation does not. Another way to distinguish the two is by describing the processes in terms of the neutral's mental functions. In arbitration, the neutral employs mostly "left brain" or "rational" mental processes-analytical, mathematical, logical, technical, adminis- trative; in mediation, the neutral employs mostly "right brain" or "creative" mental TITX 0022216 263 I
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It is not clear just how much Nims cre- dited these benefits to pre- trial in general and how much to active judicial attempts to induce settlement, but he seems to have had the latter in mind since he equated pre-trial with "mediation."27 The most comprehensive cross-sec- tional picture of settlement practice is found in Ryan and Wickhem's 1953 sur- vey of pre-trial in state and federal courts in Wisconsin. Responses to letters of in- quiry by the circuit judges revealed con- siderable division. A few were outspoken proponents of aggressive judicial pro- motion of settlement. For example, the presiding judge in Madison wrote: The primary purpose I seek to obtain out of such [pretrial] conferences is to effect settlement without trial. To accomplish that end at every conference I offer sugges- tions, intimate to the attorneys and clients the possibility and extent of liability, sug- gest the range of what I believe to be a fair settlement, and then also attempt to per- suade the parties and their attorneys to accept a settlement within that range. Of course, I can only do this when I am fully advised of all the facts. I realize in doing this I am out of step with many of the circuit judges of this state and the original purpose of a pre-trial conference.... 28 A j udge in Columbia County was even more blunt: I exert all the pressure I can, short of giving the impression that I am prejudiced, or that I would take it out on anybody if a trial is found necessary, and short of actually compelling any party to act against his well considered judgement.... ' Most respondents took a much more re- strained view, indicating that they avoided recommending settlement fig- ures and confined themselves to a gen- eral support of parties' efforts. In Mil- waukee, the settlement conference had been separated from the pre-trial confer- ence and established as a separate Concil- iation Branch, which was estimated to dispose of about 70 per cent of the cases noticed for trial.30 The federal courts covered a compara- ble range. The judge in the Western Dis- trict wrote that "[A] discussion of pro- posed settlement terms is not permitted in the presence of the court."31 In the Eastern District, on the other hand, the court expected attorneys in personal in- j ury cases to come to the pre-trial confer- ence "clothed with power to stipulate and settle...... 3E Active promotion of settlements is the established position in the federal judiciary. A few years later, an Ohio lawyer informally surveying pre-trial practice in Ohio reported that the use of pre-trial to effectuate settlements was its most controversial aspect'3 He concluded that ... in Ohio the majority of judges and law- yers feel that settlement is not merely a by-product, but one of the most desirable objectives, of pre-trial; and the language of the rules that have been adopted in Ohio on the subject are the best evidence that settlement is a prime purpose and per- haps-in most cases-the most motivating consideration leading to the adoption of the rule." A California trial judge reported that "[t]he settlement approach to litigation is gaining strong advocates throughout the country."'3 In this view, the court should offer its impartial services to aid the litigants in compromising dis- putes under proper circumstances, always being careful to preserve the full trial day in court should that prove necessary. This theory contemplates that the trial of a case is a last resort and should only eventuate if reasonable compromise opportunities have been exhausted.36 The pre-trial conference "admirably meets this situation" by affording oppor- tunity for informal discussion of possi- ble compromise. Judge Kincaid recom- mends that the court "diplomatically broach the subject of possible comprom- ise" to relieve the attorneys from doing so, while avoiding coercion or pressure.'7 27. Id. at 719. 28. Ryan and Wickhem, supra n. 13, at 16-17. 29. Id. at 18. 30. Id. at 24. 31. Id. at 40. 32. Id. at 42. 33. Shtunaker,Andppraisalo/Pre-7halin Ohio, 17 Ottto ST. L. J. 204 (1956). 34. Id. at 205. 35. Kincaid, Pre-Trial Comes to California, 30 CA.tF. ST. B. J. 423 (1955). 36. Id. at 448-49. The first systematic empirical study of pre-trial observed courts in New Jersey from 1960-62 and found that "... [i]n ac- tual operation the typical pre-trial con- ference in New Jersey is a mixed affair, in part concerned with shaping the case for trial, in part intended to promote a set- tlement."3s Most judges conducted "mixed or 'hybrid' sessions" in spite of the tensions between preparation for trial and the production of settlements. The rules and manuals, too, were based on "the two-in-one credo" and drew no distinction between the different pur- poses of the pre-trial conference'9 The emergence of a more single- minded system, however, is described in Judge Aldisert's account of Allegheny County: From 1939 to 1963 our Court went the full circle from pure pre-trial to settlement con- ference. In our early phases of pre-trial we meticulously followed the spirit of Federal Rule 16.40 But with a high volume of low amount cases, it does seem ridiculous to attempt to go through the mumbo-jumbo of pure pre- trial. You do not worry too much about sophisticated legal issues in this type of case. Our judge-supervised pre-trials soon degenerated into a routine where clerks supervised the coming together of junior counsel .... t After an attempt to combine the pure pre-trial session with a settlement con- ference, the court shifted to a compul- sory conciliation conference set close to the scheduled date of trial: This is not a pure pre-trial conference but essentially a compulsory settlement con- ference. The plaintiff must be personally available. The claims manager or repre- sentative of the carrier who has authority to negotiate must be present.... [A] brief opening session where both sides are pres- ent and the essential facts are discusaed.. . is followed by private sessions with each side where the lawyers may talk off the record and tell the judge what they really have in mind. This off-the-record portion is the most valuable part of the conciliation con- ference. It places the judge in a position to 37. Id. at 449. 38. Roaenbetg, Ttta PnEralat. CoNFttrtcNatt AND EFFECrtv6 Jusrtc[: A CON7ROt.LED TEST IN PLR- 3oNAt. INJURY IartcertoN 117 (New York: Colum- bia University Ptese,1964). 39. Id. at 116. 40. Aldisert, A Metropolitan Court Conquers Its Backlog (Part 11: From Pure Pre-?iial to Comput- sory Settlement Conferences), 51 JUntcervss 250 (1968). 41. Id. TITX 0022213 260 Judicature Volume 69, Number 5 February-March, 1986
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Others, like Reginald Heber Smith, the patron saint of legal services, retained the notion of a private and informal, voluntary proceeding in which a concil- iator would get both parties to agree to an honorable adj ustment. This proceed- ing could be conducted in a separate tribunal or in a court, but Smith saw it as "used before and only before resort is had to litigation in the courts."3 For Smith, conciliation is entirely separate from the court's coercive power. It is a superior method of dispute resolution which supplants (and prevents) adver- sary litigation. Not all proponents of conciliation saw it as a separate and alternative track; it might resolve or cure litigation as well as avoid it. Thus Edgar J. Lauer, a justice of the Municipal Court in New York, described his mid-1920s experiments as providing an opportunity for the court to interpose its "good offices as mediator or conciliator:" It is the duty of the court, as I see that duty, to stop the fight if possible before the fight- ers are seriously hurt. This can be attempted by an effort to adjust the dispute or differ- ences of the contending parties.4 Justice Lauer proposed that attorneys be required to attempt conciliation (i.e., to negotiate a settlement), but if this failed, he would invoke the rule-making power of the court to require a judge in the trial court to tender his good offices to bring about an adjustment of differences in each case awaiting trial.s In his own court he made it a practice to call counsel to the bench before me and interrogate them respecting the nature of the case and the prospect of adjusting dif- ferences. I have secured many settlements without the exercise of any pressure on the parties to reach settlement.6 What Justice Lauer had in mind is more than a settlement that satisfies the mini- mum expectations of the parties: he envi- sioned "the bringing of parties litigant into harmony,"' encouraging concord and good will, and dispelling discord' The title of Lauer's 1928 article, "Con- ciliation-A Cure for the Law's Delay," suggests the second theme that animates judicial interest in settlements-the problems of judicial administration. Conciliation not only provides better outcomes for the parties than does an adversary contest, but it also remedies Reginald Heber Smith saw conciliation as separate from the court's coercive power. the conges tion and delay that plague the courts. These twin themes-conciliation as a superior mode and as wise judicial administration-remain in uneasy com- bination in all subsequent discussion of judicial participation. How widespread was the kind of prac- tice described by Lauer? I know of no direct evidence. A contemporary propo- nent of conciliation who corresponded with a number of trial j udges about their practices reported that "some judges consistently do all in their power to bring about conciliation and others do very little...... 9 Yet, ... with few exceptions, they do little more than maintain a sympathetic attitude toward parties and their attorneys. They are passive and receptive. They do not initiate, and they are not active.... It is a matter of mental attitude. Instead of mere casual assent on the part of the judge, there should be a conscious definite policy to bring about conciliation.10 Institutionalized settlement The first institutionalization of some- 3. Smith, The Place of Conciliation in the Administration of Justice, 9 A.B.A. J. 747 (1923). 4. Lauer, Conciliation-A Cure for the Law's Delayj 136 ANNALS 55 (1928). 5. Id. at 56. 6. Id, at 57. 7. Id. at 56. 8. Id. at 56•59. 9. Randall, Conciliation as a Function of the Judge, 18 Kx. L. R$v. 330, 340 (1929). 10. Id. at 339-40. 11. Brand, "Mighty Oalu"-Pretrial, 26 J. Ae.. Jon. Soc'Y. 36 (1942). 12. Boies, The Executive Judge, 167 ANNALS 21 (1933). 13. Ryan and Wickhem, Pre-Trial Practice in Wisconsin Courts, 1954 WtsooNsIN L. Rav. 24 thing like a settlement conference seems to have occurred in the Circuit Court of Wayne County (Michigan). In the late 1920s, that court had devised procedures for untangling a chancery docket con- gested by mechanic's liens (produced by the 1920s building boom) and had ex- tended them to mortgage foreclosures after the 1929 crash. In August 1930, those procedures were extended to the law side and a "Conciliation Docket" was set up. Recourse was optional, but in late 1930 it was made compulsory and shortly after renamed the "Pretrial and Conciliation Docket." This innovation attracted considerable notice." A conci- liation docket was established in Cleve- land's Court of Common Pleas in 193112 and a conciliation branch in Milwau- kee's Circuit Court in 1937.13 In 1938, pre-trial conferences were prescribed as part of the new Federal Rules of Civil Procedure, and counter- parts soon appeared in many localities.t* However, the relatidnship between pre- trial and settlement was ambivalent. According to the dominant view, pre- trial would sharpen cases for trial, mak- ing litigation more effective. A 1937 dis- cussion of "Theory and Practice of Pre- Trial Procedure" by a leading academic proceduralist concludes with the obser- vation that pre-trial: substitutes an open, business-like and effi- cient presentation of real issues for the tra- ditional strategy of concealment and dis- guise. Its general adoption and use might do much to restore the confidence of the public in litigation as a desirable method of settling disputes.ts In a paper on "Procedure for Pretrial Conferences in the Federal Courts" pre- pared for the 1944 meeting of the Com- mittee on Pretrial Procedure of the Judi- cial Conference of Senior Circuit Judges, that same professor reported a "consid- erable difference of opinion" concern- (1954). 14. The institutionalization of active judicial participation in settlement is closely tied to the institutionalization of the pre-ttial conference and to the reform of civil procedure. I will not attempt to recount the history of the institutionalization of pre-trial but only note how it is entwined with the notion of the active judicial promotion of aettte- ment. 15. Sunderland, Theory and Practice of Pre-Trial Procedure, 21 J. Am. Jon. Soa'r. 131 (1937); sim- ilarly an enthusiastic account of a Detroit experi- ment commends the bar for supporting "a bench which had taught it efficiency in bringing cases to trial, and trying them." Nims, Pre-Trial Pnocedure Adopted foraoston, t9 J. Aet. JUD. Soc'r.12 (19llS)t.: I 1 258 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022211
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arbitration process often hinges on the expertise of the tribunal, parties gener- ally select a tribunal whose members possess impartiality, integrity, ability and experience in the field in which the dis- pute arises. Legal training is often help- ful but not indispensable. Information concerning the qualifica- tions of some of the more active arbitra- tors is contained in the Directory of Arbi- trators, prepared by the Bureau of National Affairs, Inc., and in Who's Who (of arbitrators) published by Pren- tice-Hall, Inc. Also, the Federal Media- tion and Conciliation Service (FMCS), the National Mediation Board (NMB) and the American Arbitration Associa- tion (AAA) provide biographical data on arbitrators." Preparation. The parties must thor- oughly prepare cases for arbitration. Obviously, a party must fully under- stand its own case to communicate effec- tively to the arbitrator. Depending on the nature of the case, prehearing discovery may be necessary and its permissible extent is usually determined by the arbi- trator. The advantages of simplicity and utility of the arbitration mode normally weigh against extensive discovery. Dur- ing this stage, the parties also enter.into fact stipulations where possible." Ordinarily, most or all of the arbitra- tor's knowledge and understanding of a case is based upon evidence and argu- ments presented at the arbitration hear- ing. However, the arbitrator does have some "preparation" functions. Generally, where no tribunal administrator (such as AAA) is involved, the arbitrator, after accepting the office, designates the time and place of the hearing, by mutual agree- ment of the parties if possible. The arbitra- tor also signs an oath, if required in the particular jurisdiction, and determines whether the parties will have representa- tion, legal or otherwise, at the hearing.15 Prehearing conferences. Depending on the complexity of the matter involved, the arbitrator may wish to schedule a prehearing conference, which is nor- mally administrative in nature.16 Brief- 13. Elkouri and Elkouri, supra n. 3, at 24-25. 14. Elkouri and Elkouri, supra n. 3, at 197; (for preparation checklist see pp. 198-99); Domke, supra n. 12, §§24:01 and 27:01. 15. Id. 16. Some of the matters which might be discussed at a prehearing conference are: whether discovery is needed and, if so, scheduling of same; motions that need to be filed and briefed or orally argued; and the Arbitration is a process in which a dispute is submitted to a third party to render a decision. ing schedules, if necessary, are set on motions attacking the validity of claims or of the proceeding. But general ly, brief- ing is minimized to preserve the effi- ciency of the process. Discussion of the underlying merits of claims or defenses of the parties are avoided during a pre- hearing conference. Ex parte conferen- ces between the arbitrator and a party are not permitted.'7 The hearing. Parties may waive oral hearing and have the controversy deter- mined on the basis of documents only. However, an evidentiary-type hearing in the presence of the arbitrator is deemed imperative in virtually all cases. Since ar- bitration is a private proceeding, the hear- ing is not open to the public as a rule but all persons having a direct interest in the case are ordinarily entitled to attend. A formal written record of the hearing is not always necessary; use of a reporter is the exception rather than the general setting of firm oral argument and hearing dates. 17. Cooley, supra n. 9, at 4-5; Elkouri and Elkouri, supra n. 3, at 186-90. 18. Cooley, supra n. 9, at 5. 19. Elkouri and Elkouri, supra n. 3, at 224-25. 20. Cooley, supra n. 9, at 5; Elkouri and Elkouri, supra n. 3, at 223-28. 21. Elkouri and Elkouri, supra n. 3, at 225. 22. Cooley, supra n. 9, at 6. practice. A party requiring an interpre- ter has the duty to arrange for one. Wit- nesses testifying at the hearing may also be required to take an oath if required by law, if ordered by the arbitrator, or on demand of any party.1e Opening statements are made orally by each party in a brief, generalized format. They are designed to acquaint the arbitra- tor with each party's view of what the dispute is about and what the party ex- pects to prove by the evidence. Sometimes an arbitrator requests each party to pro- vide a short written opening statement and issue statement prior to the hearing. Occasionally, a respondent opts for mak- ing an opening statement immediately prior to presenting initial evidence." There is no set order by which parties present their cases in arbitration, al- though in practice the complaining party normally presents evidence first. The par- ties may offer any evidence they choose, including personal testimony and affi- davits of witnesses. They may be required to produce additional evidence the arbi- trator deems necessary to determine the dispute. The arbitrator, when authorized by law, may subpoena witnesses or doc- uments upon his or her own initiative or by request of a party. The arbitrator also decides the relevancy and materiality of all evidence offered. Conformity to legal rules of evidence is unnecessary. The arbitrator has a right to make a physical inspection of premises.20 The parties make closing arguments, usually limited in duration. Occasion- ally, the arbitrator requests post hearing briefs. When this occurs, the parties usu- ally waive oral closing arguments.$' Decisionmaking. When the issues are not complex, an arbitrator may render an immediate decision. However, when the evidence presented is voluminous and/or time is needed for the members of an arbitration panel to confer, it might require several weeks to make a decision. The award is the arbitrator's decision. It may be given orally but is normally written and signed by the arbitrator(s). Awards are normally short, definite, cer- tain and final as to all matters under sub- mission. Occasionally, they are accom- panied by a short well-reasoned opinion. The award is usual ly issued no later than 30 days from the dosing date of the hear- ing. When a party fails to appear, a default award may be entered.n Depend- TITX 0022218 265
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The emergence of the judge as a mediator in civil cases Although attempts by the court to "settle" cases has long been an informal part of our system of justice, today cases that once might have been settled by negotiations between opposing counsel are settled with the active participation of the judge. by Marc Galanter M ost civil cases filed in Amer- ican courts are settled by an agreement between the par- ties rather than resolved by a decision of the court. "Bargaining in the shadow of the law" is the prevalent means of resolving civil cases in Ameri- can courts. Typically, settlement negoti- ations involve only counsel for the re- spective parties. But in many instances the negotiations are encouraged, bro- kered, or actively mediated by the judge. Most American judges participate to some extent in the settlement of some of the cases before them. Indeed, this has become a respectable, even esteemed, fea- ture of judicial work. There have always beenr a-.I'or of set- tlements in Americann civil' courts. It remains unclear whether the pei+centage of cases terminated by settltmenr has increased in recent years. And, if there has been an increase, it is unclear whether it is caused by the increased intervention of judges. There has been a sea change, however, in the way judges talk about settlement and think about their roles as judges. In this article I shall trace the change in judicial views over the past half century and speculate on the causes and effects of this change. As we look back to examine past set- tlement practices, it is worth noting that "settlement" is our category. As one pushes back from the 1930s to the 1920s, the term settlement virtually disappears from the literature. A case may oc.casion- ally- be described as "settled." but '•set- tlemene" is not a category for talking aboutor conducting policys (Neither, for that matter, is ••policyr") The terms em- ployed in the 192% were, "adjustmentf„ "compromise," and "eonciliation." The last of these three deserves special atten- tion because it carries a heavy ideologi cal and programmatic load. Conciliatioa • "Conciliation" is closely connected with one of the two recurrent themes that im- An earlier version of this paper was delivered at the Annual Meeting of the Law and Society Asocia- tion in Denver, Colorado June 3-5, 1983.1'repan- tion of this paper was supported by the National Science Foundation Grant MSES 8121712. The con- tents are the responsibility of the author alone and do not reflect the view of the Foundatioee. 1. Harley, Cortciliaeion is Succeeding, 45 j: Aee. Jtro. Soc'Y 73 (1920). - 2. Id. at 74. pel and justify judicial involvement in the settlement process. We might call these the "warm" theme and the"eool" theme. The "warm" theme refers to the impulse to replace adversary conflict by a process of conciliation to bring the par- ties into a mutual accord that expresses and produces community among them. The "cool" theme emphasizes not a more admirable process but efficient institu- tional management: clearing dockets, re- ducing delay, eliminating expense, un- burdening the courts. As we shall see, these themes recur, sometimes singly and often entwined together, in discussion of judicial involvement in settlement. Before the turn of the century, concilia- tion modeled after the conciliation coure, of Norway and Denmark had been urged on Americans as a superior way of deal- ing with disputes. Although its propo- nents emphasized conciliation tribunals as informall forumsm for producutg, mtttr tuaf acatn+tl} separate from the ordinary courts,^ tIi-r conciliatioi* idea became linked with the notion of providing ac- cessible and inexpensive justice to small claimants in the courts. A Conciliation Branch, was established in the Municipal Court of Cleveland iD 191gwith jurisdic- tion.of casessTp to S6. A few other cities followed.- suie«. Soam 4 its supporters viewecf `conciliation as a procedure for theadjustmetttof "all the little neighbor- hood dmputesand misunderstandinga.:'1 It wasoonumended as relieving the courts of "anumerous classof little cases which this machinery is not well designed to handle, and;nevercan.he made to handie economically and sensitively.,,Y TITX 0022210 257 I
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make a realistic appraisal of both sides; it gives him the proper understanding to mediate the dispute, as he continues to talk to each side separately during the negotia- tions. Our experience shows that the basic difference between the parties is not usu- ally factual, but is a difference of opinion as to value. Where this is the situation after hearing both sides privately, I am usually asked my suggestion of value and I have no hesitation in offering my ideas.42 Cases that are not settled there or suffi- ciently "softened by the mass concilia- tion conference [to] ... settle themselves" in the interval are subject, the day of trial, to a "last chance" settlement con- ference by the calendar control judge.'s. Settlement in federal courts The fading away of the preparation for trial rhetoric and the heightened empha- sis on judicial production of settlements were found in federal courts as well. Judge Kaufman reported that in the Southern District of New York, settle- ment explorations were "another recog- nized objective of great importance" at pre-trial conferences." A federal judge from the Western District of Pennsylva- nia similarly stated his credo: I feel it is incumbent on every j udge to use the pre-trial as an aid in effectuating set- tlement... the judge can be most effective in acting as the catalytic agent to bring the two parties together.... [I]n a great major- ity of the cases reasonable men, af ter all the facts are on the table, can arrive at an area of agreement.45 An esteemed federal trial judge described his aggressive intervention at the pre- trial conference of routine cases in his court: ... So, if it's a personal injury case, I look at the doctors' reports-just the last para- graph, where they show the extent of the injury-I tell them, "this case is worth $20,000 for the settlement," and I tell them why; and I tell them further to go tell their 42. Id. at 248. 43. Id. at 249. 44. Kaufman, The Philosophy of Effectiae Judi- cial Supervision over Litigation, 29 R R. D. 215 (1962). 45. Mcllvaine, The Value of EffectivePretrial, 28 F. R. D. 162 (1961). 46. Wright, The Pretrial Conference, 28 F.R.D. 145 (1962). 47. Will, Merhige, and Rubin, The Role of the Judge in the Settlement Process, 75 F. R. D. 203 (1977). 48. Flanders, Case Management in Federal Courts: Some Controversies and Some Results, 4 Jusr. SYs. J. 150 (1978). 49. Holland, William J. Campbell: A Case Study of an Activist District Judge, 3 Jusr. Sys. J. 143 (1977). clients that I said so. And the funny thing is, the lawyers in ourdistrict want the judge to do that. They want to be able to go back to their clients and have some of the load taken off their shoulder. They say, "This is what I think, but the judge says this."s A decade later, in the 1970s, whatever reticence remained among federal j udges was barely perceptible. There was a forth- right and ardent embrace of active par- ticipation in settlement negotiations. This was based on a warm endorsement of settlement as preferable to adjudica- tion-not on grounds of administrative convenience, but because it produced superior results. Thus at a training ses- sion for new federal judges they were counselled by a veteran judge that: [o]ne of the fundamental principles of judicial administration is that, in most cases, the absolute result of a trial is not as high a quality of justice as the freely nego- tiated, give a little, take a little settlement.47 An outline distributed to the new judges reiterated that: [i]n most controversies, most court cases, the highest quality of justice is not the all or nothing, black or white end result of a trial but is in the grey area-in most cases a freely negotiated settlement is a higher quality of justice which is obtainable ear- lier and at less cost. Approximately 90 per cent of all suits filed in federal courts are disposed of without trial.*s Thus settlement is thought to permit compromise positions that are unattain- able in the adjudicative mode.49 In the words of one thoughtful federal district judge, settlement "produces results which are probably as close to the ideal of justice as we are capable of pro- ducing. "50 If settlements are good, it is also good that the judge actively participates in bringing them about. He should do this not only by his management of the court 50. Fox, Settlement: Helping the Lawyers to Ful- Jill Their Responsibility, 53 F. R. D. 142 (1971). 51. W ill, Merhige, and Rubin, supra n. 47, at 205; Fox, supra n. 50, at 148. 52. Lacey, TttR JUDOR's RoLe IN rtts SL+rrLratErrr oF CIVIL Suns 4-5 (Washington: Federal Judicial Center, Education and'Ikaining Series. 1977). 53. Renfrew, Negotiations and Judicial Scrutiny of Settlements in Civil and Criminal Antitrust Cases, 57 CtttcACo B. RRaoRD 131 (1975). 54. Ryan, Ashman, Sales and Shane-Dubow, AMFJqCAN TRIAL JuDCis: THRIA WORx STYLLS AND PEDroRmANCrs 177 (New York: Free Press, 1980). 55. Yankelovich, Skelly and White, Study of the Role of Courts, conducted for: Office for Improve- ments in the Administration of Justice. U.S. Dept. of Justice, at 83 (1980). 56. Fed. R. Civ. Pro. 16. (policies about continuances, etc.) but also by acting as a mediators1 As another federal district judge told a 1977 seminar for newly appointed judges: ... I urge that you see your role not only as a home plate umpire in the courtroom, call- ing balls and strikes. Even more irnpor- tant are your functions as mediator and judicial administrator.s2 Current perspective Active promotion of settlements is now unmistakably the "established" position in the federal judiciary. Judges who are activists on this matter are invited to give seminars to new judges; their views are broadcast by publication in Federal Rules Decisions and disseminated in booklets by the Federal Judicial Center. As Charles Renfrew observed in 1975, "Judicial activism in the settlement pro- cess appears to have received quasi- official sanction within the j udicial fam- ily."53 The virtue of active judicial partic- ipation in settling civil cases is part of the received wisdom. Two recent surveys portray contem- porary patterns. In a nationwide survey of trial judges, only 21.8 per cent des- cribed their typical posture as one of non-intervention in settlement discus- sions. Over three-quarters did typically intervene; of these, 67.9 per cent regarded their intervention as subtle, "through the use of cues/suggestions" and 10.3 per cent as aggressive, "through the use of direct pressure."51 In a study of federal and state courts in five localities, judges were asked about the practices they fol- low all or most of the time. Seventy-five per cent of federal j udges and 56 per cent of state judges reported that they initi- ated settlement talks in jury cases; and, 41 per cent of federal judges and 56 per cent of state judges reported that they suggested terms of settlement in such cases. (The figures are lower in every category for bench trials.)5S This shift to judicial activism received formal ratification in 1983 when Rule 16 of the Federal Rules of Civil Procedure was amended to allow judges to "con- sider and take action with respect to ... the possibility of settlement or the use of extra-judicial procedures to resolve the dispute" during the pre-trial confer- ence.Se The Advisory Committee that proposed the change recognized that "it has become commonplace to discuss set- TITX 0022214 261 I
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tlement at pre-trial conferences." The committee recommended that requests for a conference indicating a willingness to talk settlement "normally should be honored" and that "a settlement confer- ence is appropriate at any time.... "57 Active participation What do we learn from this? Certainly, there has been a change in the way that judges talk about settlements and the role they play in producing them. It also seems probable that more judges do par- ticipate actively in arranging settlements than was the case earlier, that those who do are more aggressive and inventive, and that they regard it as an integral part of their judicial work. This is not to assert that this activity produces more settle- ments. Research has not so far confirmed that more judicial intervention produces more settlements.58 But it does appear that cases that once might have been settled by negotiations between opposing counsel are now settled with the partici- pation of the judge. We have moved from dyadic to mediated bargaining. We may contrast contemporary judi- cial mediation with the "conciliation" of the first three decades of this century. Unlike conciliation, mediation is not just for marginal or petty cases that are unworthy of litigation; it is for the main- stream. It is not outside the court- distant from judges and lawyers-but is located in the strongholds of adjudica- tion. It is not regarded as radically separ- ate from adjudication, but as part of the same process. Litigation and negotiation are not viewed as distinct but as continu- ous. Finally, contemporary judicial medi- ation is more widespread and firmly institutionalized than conciliation ever was. In short, mediation has been firmly incorporated into the image of adjudica- tion and into the judicial repertoire. Increased participation in settlements does not proceed entirely from the "cool" impulse to efficient management. It also expresses the sense that settlement is preferable. The notion that mediation produces better results than would a trial dimly echoes the "warm" theme of those early 20th century reformers who felt that conciliation would resolve conflict into harmonious accord. There was a notion that conciliation could tap some source of order distinct from-and even antithetical to-the coercive power of the legal system. Contemporary judicial mediation does not claim or aspire to express such "communal" ordering; in- stead, it matter-of -factly utilizes the law's coercive power and it attempts to give expression to "legal" norms. (At least, this is what judges say they do. Just what the normative character of this settle- ment activity is has never been studied.) Conclusion Let me close by suggesting some of the connections that remain to be explored. The changes we have traced seem to comport with other changes within the judicial complex. In a recent article, Judith Resnick59 portrays increasing ju- dicial participation in settlement nego- tiations as one component of a shif t from a traditional style of common law judg- ing to a managerial style in which judges take initiative to supervise the develop- ment of the case through informal dis- cussions. This usefully points out the connection between the increasing re- spectability of settlement participation and the development of court manage- ment, the rationalization of assignments, calenders, record keeping, etc. It is not clear to me, however, that the shift to active participation in settlement can be subsumed as part of a drive towards managerial efficiency. It may also be a response to a shift in the charac- ter of common law adjudication. The trial has been displaced from its central place in common law litigation. The "case" no longer centers (did it ever?) around a discrete plenary trial to which were attached some preliminaries and addenda; instead, it is a series of proceed- ings (discovery, motions, hearings, con- ferences, negotiations, pre-trial, fee hear- ing, etc.) only rarely including a trial This diffusion is marked by the fact that many American lawyers are now des- cribed as litigators in contra-distinction to trial lawyers.60 Yet another possibil- ity is that the change is impelled not by the management ideology of the court or the changing character of its business, but by the growth and increasing mobil- ity of the legal profession. The sets of lawyers dealing with medical malprac- tice or anti-trust in a particular locality, for example, have increased in size so that more of their negotiations are with strangers and create a demand for an honest broker. Connections with other changes in legal institutions can only be the begin- ning of an explanation. They lead us to the wider setting of the changing de- mands and expectations brought to legal institutions by their various sets of users and audiences. During the period we have so hastily surveyed, there was a great proliferation of new regulation by the government, utilizing the legal sys- tem to carry out an expanded set of pur- poses. And there has been a growth in the use of litigation, by citizens, organi- zations and interest groups. A satisfying explanation of the shift in judicial par- ticipation may require that it be linked with these "external" factors. External demand may, for example, better explain why j udicial participation gained accep- tance first in state courts and only later in federal courts. It may turn out that more than one explanation is called for. Judicial participation in settlements may, in fact, be too broad a category. For example, settlement patterns in medical malpractice cases and in anti-trust class actions may comprise discrete pheno- mena with their own distinct careers. Finally, we come to the bottom line: what difference does it make? Are settle- ments arranged by judges any different than those arranged by lawyers? Do they have more influence on the underlying behavior? How does this participation affect the way judges act in other settings? How does it affect public perceptions of law? Studies of the effects of judicial par- ticipation have been confined to the impact on delay and on judges' produc- tivity-that is, they have remained the tradition of research inspired by the "cool" theme of court efficiency. But in a" system that is in large measure a systemof~-. '' settlements, there is much more to bv, learned from the shift represented by increased judicial participation. 0 57. Id., advisory committee note. : 58. Church, Carlson, Lee and Tan, Jusnca DD LAYED: THL PAQ OF LITIGATION IN UalMi T11AL+ CovaTS (Williamsburg, Va.: National Center ios. States Courts, 1978); Flanders, CASt MANACnaxs AND COURT MANACEltENT IN UNITED STATLS Dw"' Txicr CounTa, (Washington, D.C.: Federal Judicial Center, 1977). 59. Resnik, Mara.geriat Judgss, 96 HAav. L Rsvn , 374-448 (1982). 60. Grady, Taiat Lawyers, Litigators and Clieniil' Costs, 41.ITtawnON 5.6 (1978). MARC GALANTER is EvJus-Bascom Pn sor of Law at the University of WfaoonsMtO:q Madison. 262 Judicature Volume 69, Number 5 February-March,1986 TIrX 0022215 I
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What we know and don't know about eourt- administered arbitration by Deborah R. Hensler 0 ver the past decade, interest in alternative dispute resolu- tion has increased enormous- ly. Initially, attention focused on establishing alternative forums, such as neighborhood justice centers, outside the court system. Proponents of such alternatives believed that they would relieve pressure on the criminal and civil justice systems, while providing a qual- itatively better form of dispute process- ing-one that would be more reflective of community norms and better tailored to the needs of individual disputants. Although many communities now have community-based dispute resolution programs, the available evidence sug- gests that most disputants do not seek out these programs on their own.' In recent years, as the dispute resolu- tion movement has acquired legitimacy, attention seems to have shifted to the use of alternative dispute resolution proce- dures within the court system. Most of these alternatives provide some sort of arbitral or mediative process, diverting particular classes of cases from the regu- lar trial court calendar while retaining administrative control over them. Some legislatures view the establishment of such alternatives primarily as a means of reducing judicial workload, and hence, reducing the demand for new judge- ships. Judges and court administrators frequently view them as components of a differentiated strategy for caseload man- agement, in which specific categories of cases are assigned to different treatments. Lawyers may view the alternatives as a means of clearing the trial calendar for "more important" litigation. Public and private interest groups may regard alter= native dispute resolution procedures as a means of saving litigants' time and money, while perhaps providing a better quality of justice. Just what is meant by "better quality" is often unclear. Despite the attention that the dispute resolution movement has drawn, there has been little systematic study of its ouc comes. It is difficult to determine how much implementation there is to back up the rhetoric, what types of procedures have been established, and what has re- sulted from different approaches. Thus, it is difficult for policymakers to decide whether they should adopt any of the available approaches and to determine how to design a specific procedure to 270 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022223
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or administrative agencies; that is, they are preferable as forums in which to resolve the controversy conclusively, not merely as places to go to before litigating in court. These other processes or mechanisms, which include negotiation, mediation, arbitration and mini-trials, theoretically could either be voluntary or mandatory. But at this point there enters the most challenging problem in the effort at sys- temic improvement. Non-court-altema- tives cannot be made obligatory for some categories of disputes because of constitu- tional inhibitions and for many others because of a strong tradition and com- mitment to easy access to the courts. Our system is heavily geared to making civil courts open to all who are prepared to resort to them as plaintiffs and to those who cannot avoid them as defendants. Even a billion-dollar mediation process won't work if people insist on taking their disputes to court. As Yogi Berra said: "If the fans won't come out to the ball park, you can't stop them." If compulsion is often out of the ques- tion, what about voluntary entry? That would be wonderful if the disputants would voluntarily negotiate or mediate, The trouble is, they often will not. Fre- quently, we are told, a disputant regards it as a betrayal of the moral righteous- ness of his position to do anything but litigate to the finish. There are clients who would rather go down in flames after trial than settle. Then there are the lawyers. They have been schooled to believe first, last and always in litigation Besides saving court energies, court-annexed devices help preserve access to the courts. be done-beyond making the alternatives as accessible and attractive as possible in terms of convenience, quality of process and quality of results-is, to repeat, one of the toughest challenges we face. A third approach Perhaps we shall have to becontent with the third approach to reform of the dis- pute resolution system. That is, to use the alternatives as court-related mecha- nisms. Ten United States district courts and over 15 states, use court-annexed arbitration as an alternative to normal court processes. If a docketed action is of another. It involves the impaneling of a jury to hear a much abbreviated presen- tation of the case. Then the jury gives its "verdict," which is advisory only. The idea is to let the litigants know how the jurors react to the scaled-down version of the case in the expectation that the par- ties will then reach a settlement. They often do, according to judges who have used the summary jury procedure. There are other devices in use in the courts to achieve similar results. Among these are referrals, mini-trials, and nu- merous variations of the procedures just described. As a general matter, success has been reported for the procedures that shunt cases from the normal court stream, with an option to return. Besides apparently saving court energies, the court-annexed devices have the advan- tage of preserving access to the courts themselves. To a large extent they avoid problems encountered at both the con- stitutional and the policy levels by the free-standing alternatives. How should we deploy the alterna- tives? How can we assure that the forum will fit the fuss? To answer will require analyzing the needs of various categories of disputes and the capabilities and characteristics of various types of dis- pute resolution processes and methods. Then the task will be to fit them together in an effective way. Fortunately, this task is receiving seri- ous attention in many quarters. The Na- tional Institute for Dispute Resolution has issued an excellent report under. the title "Paths to Justice," which attempts the kind of analysis and match-up I have referred to. Another NIDR publication, "Disputt Resolution in America," rep- resents: a similar Sffort. Other institu- tions anct : iadividuals are hard at work trying to develolra:matrix or other ana: lytical scheme that.aould help the legisla: turesdesigrraa improved dispute resolu- tion systeat and put it into operadon;, and adversarialism: They think real ad* ° a type thought appropriate for arbitra - vocates don't give ground when theiw tionr itis compulsorily routed too volun-,- client has a just cause; and that'salmosi~F, teerarbitr•atoss.Mostcasessettlebeforea~ always, and on both sides. ftearing,* t&ear6itrators. Those that do, Reading the Columbia LaxAt*,.~: notga throug,h the process to adecisiowr ., . course listings two years agqt(t1'ipft`?u!ra- If either party then desires, the caseeanr, over 60 courses and 100 seminamIistet£); .F be returned to the court docket and pro- I was struck by the fact thats:aF::sta&%ii ceed in the usual way to an adjudication;:: would have to turn 30 pagea of I"stings- with no reference whatsoever to the arbi= before coming to any offering tTtat evets, hinted that full-fledged litigation in court was not the only way to handle a' legal dispute. The adversaryy process, with right/wrong, zero/sum decisionk cultivates particular but limited skills. That must be changed. At this stage it is essential to develop incentives to induce disputants to utilize voluntarily the system-preferred alterna- tive to resolve their dispute. How thi3 cam tration. In short, under this procedure = This issue of Judicature on alternative arbitration is obligatory, but the resulta dispuwresolution in the judicial envi. are not binding. Careful studies in:bothr:: ronmettt may well make a substantial the federal and state courts using this contribution along the same lines. 0 plan have concluded that it reduces sub- stantially the number of cases that would. MAURICE ROSENBERG Is a prolsasar, at have gone through a court trial had they Columbia University School of Lans not been shunted to arbitration. The summary jury trial is in use by a gtnwing number of federal district judges -reported4 asmanx as 65 atone timeor TITX 0022208 M I
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by systems analysts, management spe- cialists, statisticians, attorneys, planners, budget analysts, and other professionals. These professionally-staffed state court administrative offices ostensibly have provided state court systems with more rational administrative decisionmaking and planning capabilities. In particular, they can provide the necessary staff sup- port to operationalize new programs. Apparently these very capabilities have set the stage for the integration of ADR into the nation's judicial systems. Plan- ners and analysts are available to make the necessary caseflow and cost projec- tions and attorneys are available to staff rulemaking committees as needed. The most recent initiatives in mandatory court-annexed arbitration are a good case in point. Many legislatures have tended to provide only general authorization for these programs, setting jurisdictional limits and leaving most of the important specifics to judicial tulemaking.lo Forty. years ago (prior to the first major reform wave) most state supreme courts would have perceived themselves as having neither the constitutional au- thority to provide the specifics for such programs nor the administrative capa-y bility to implement them. Implementa- tion of the traditional administrative and procedural reforms that were at the core of the first major reform wave may well have been a necessary precondition for the second reform wave. ADR and the courts In the final analysis, however, both waves of judicial reform during the second half of this century have been predicated on a judiciary with the necessary managerial consciousness to give meaning to struc- tural, administrative, and prooedurai rer forms. Unless judges were transformed from passive to active dispute resolvers and case managers, the organizational reforms would have little meanin$at In the lead article in this symposium issue of Judicature, Marc Galanter traces changes in judicial attitudes towards 10. See, e.g., Auz Rsr. STAT. ANN. 512-133; lu. Rav. STAT. ch. 110 $2-IOOIA-10006A; MiNN. STAT. ANN. 484.73; N.J. Rav. STAT. §39:6A-24-38; 1983 OrucoN LAws ch. 670; WAart. Rsv. Cons 97.04.0100 .220. 11. For different perspectives on the desirability of these developments see Resnik, Managerial Judges, 96 HAav. L. Rav. 374 (1982) and Peckhattt The Federal Judge as a Case Manager: The New Role in Guiding a Case jsom Filing to Dis¢oaition, 69 CAus. L. Rzv. 770 (1981). case settlement. The contemporary judge apparently is much more likely to as- sume an activist posture towards case settlement than his predecessors. Galan- ter concludes that, "we have moved from dyadic to mediated bargaining." Even though the contemporary judge may have emerged as an active mediator in civil cases, John Cooley asserts, in the second article in this issue, that many judges and lawyers find the differences between arbitration and mediation un- clear. He thus sees the need to educate the bar and bench as a necessary first step to effective implementation and utilization of new ADR mechanisms. Cooley's arti- cle is an excellent primer. He systemati- cally distinguishes these two basic ADR devices from a number of perspectives; exploring the nature of the respective roles of the arbitrator and mediator, explaining the processes in some detail, and considering the different kinds of disputes that each of these two processes is best equipped to handle. Deborah Hensler's article on court- administered arbitration brings us up to date on the extent of adoption and offi- cial integration of the arbitration pro- cess into existing state and federal court systems. Having been personally in- volved with much of the major research in this rapidly expanding area, she care- fully reviews what we know and suggests what we need to know about court- ordered arbitration. Hensler's piece is followed by descrip- tions of two other court-centered ADR mechanisms: early neutral evaluation and the summary jury trial. Wayne Brazil, Michael Kahn, Jeffrey Newman and Judith Gold describe an early neutral evaluation program being tested in the federal district court for the Northern District of California, which uses expe- rienced third-party neutrals to provide the parties with an early case evaluations This case assessment gives the parties an opporturtity to identify key issues, focus discovery,, and, realistically assess the strengths and weaknesses of their cases, This expert neutral evaluation is aimed at encouraging earlier and more effective settlement negotiations. The summary jury trial, on the other hand, uses non-experts (jurors) to pror vide the parties with an early case assess- ment. Judge Thomas Lambros, the orig: inator and major proponent of this de- vice, provides us with a detailed descrip- tion of summary jury trial procedures and his experienced advice concerning the variables that should be considered in deciding whether a case is appropriate for summary jury trial. Finally, Stephen Goldberg, Eric Green and Frank Sander look to the future of ADR. They discuss normative issues relating to the use of ADR and identify areas in which empirical research is needed. Their article is adapted from a paper that provided the basis for por- tions of their recently published book, Dispute Resolution, which is ably re- viewed by Carrie Menkel-Meadow in this issue. Professor Menkel-Meadow uses this occasion to suggest that the term "alternative dispute resolution" may in fact be a misnomer when one considers that over 90 per cent of all cases are settled before trial. In her review essay, she considers the current state of the dispute resolution field, and the implications the publication of Dispute Resolution have for teaching and re- searching dispute resolution processes. The four Focus pieces in this sympo- sium issue provide a good adjunct to the broader perspectives of the lead articles by focusing on specific programs. Linda Finkelstein discusses the multi-door courthouse experiment in the District of Columbia, while Albie Davis and Lin- coln Clark and Jane Orbeton describe state-wide mediation programs in Mass- achusetts and Maine, respectively. Finally, John Martin explains the appellate case settlement program in the U. S. District Court of Appeals for the Eighth Circuit. Opening the process Viewed cumulatively, the ADR-in-the- courts activity reported in this issue sug- gests- that the "institutionalization" of ADR processes is taking place at a rela- tively rapid pace. Both federal and state court systems are using theirrulemaking powers to put new programs in place with minimal or no legislative guidarlce. These developments suggest that greater attention might now be paid to the processes by, which these ADR prQ- grams are fasldonet£ In particular, the process by which courts make rules to govern the procedures and operations of these programs might be etamined: Judi- cial rulemaking haa beetr characterized . (continwd on paps 314) TITX 0022206 .Z53
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r issues have been identified. The second procedure is preferred; the first approach often leads to tedious time-consuming rambling about insignificant matters, sometimes causing the parties to become more entrenched in their positions.s2 Generally, the complaining party tells his or her "story" first. It may be the first time that the adverse party has heard the full basis for the complaint. The media- tor actively and empathically listens, taking notes if helpful, using listening techniques such as restatement, echo and non-verbal responses. Listening is the mediator's most important dispute- resolving tool.3s The mediator also: e asks open-ended and closed-ended questions at the appropriate time and in a neutral fashion; e obtains important "signals" from the behavior and body movements of the parties; • calms a party, as necessary; • clarifies the narration by focused questions; . objectively summarizes the first par- ty's story; e defuses tensions by omitting dispar- aging comments from the summary; 9 determines whether the second party understands the first party's story; 9 thanks the first party for his or her contribution. The process is repeated with the sec- ond party.'* Problem clarification. It is in this stage that the mediator culls out the true underlying issues in the dispute. Often the parties to a dispute intentionally obfuscate the core issues. The mediator pierces this cloud-cover through separ- ate caucuses in which he or she asks direct, probing questions to elicit infor- mation which one party would not dis- close in the presence of the other party. In a subsequent joint session, the media- tor summarizes areas of agreement or disagreement, being careful not to dis- 32. Meagher, supra n. 25, at 30; Maggiolo, supra n. 26, at 47. 33. Ray, supra n. 24, at 121; Salem, supra n. 23, at 4-5; Robins, supra n. l, at 27; Maggiolo, supra n. 26, at 48-49. 34. Ray, supra n. 24, at 121. 35. Id. at 121-22; Meagher, supra n. 25, at 57-58; Robins, supra n. 1, at 43-44• Maggiolo, supra n. 26, at 49-50. 36. Maggiolo, su¢ra n. 26, at 12. Other basic negotiation principles which some mediators use to advantage throughout the mediation process are found in Fisher and Uty, GgtrtNC TO Yes, (New York: Penguin gooks,1983. Those principles att: (1) The arbitrator's function is quasi-judicial in nature. close matters which the parties shared with the mediator in confidence. They are assisted in grouping and prioritizing issues and demands.ss Generation and evaluation of alterna- tives. In this stage, the mediator employs two fundamental principles of effective mediation: creating doubt in the minds of the parties as to the validity of their positions on issues; and suggesting alter- native approaches which may facilitate agreement.36 These are two functions which parties to a dispute are very often unable to perform by themselves. To carry out these functions, the mediator has the parties separately "brainstorm" to produce alternatives or options; dis- cusses the workability of each option; encourages the parties by noting the probability of success, where approp- riate; suggests alternatives not raised by the parties and then repeats the three previous steps.37 Selection of alternative(s). The media- tor may compliment the parties on their progress and use humor, when appropri- ate, to relieve tensions; assist the parties in eliminating the unworkable options; and help the parties determine which of the remaining workable solutions will separate the people from the problem; (2) focus on interests, not positions; (3) invent options of mut- ual gain; (4) insist on using objective criteria. 37. Ray, supra n. 24, at 122. Meagher, supra n. 25, at 48-49, describes additional techniques of "plant- ing seeds," "conditioning," and "influencing ex- pectations." 38. Ray, supra n. 24, at 122. 39. Id. 40. Domke, supra n. 12, §23:01, at 351-53. 41. Id. §24:05, at 380. 42. Id. 43. Id. §23:02, at 355. produce the optimum results with which each can live.3e Agreement. Before the mediation is ter- minated, the mediator summarizes and clarifies, as necessary, the terms of the agreement reached and secures the assent of each party to those terms; sets a fol- low-up date, if necessary; and congratu- lates the parties on their reasonableness. The mediator does not usually become involved in drafting a settlement agree- ment. This task is left to the parties themselves or their counsel. The agree- ment is the parties', not the mediator's.S9 A mediator's patience, flexibility and creativity throughout this entire process are necessary keys to a successful reso- lution. The "neutral's" functions To fully appreciate the differences (or the similarities) between the two pro- cesses, and to evaluate the appropriate use of either process, it is instructive to focus on considerations which exist at their interface-the function and power of the "neutral." This is a particularly important exercise to acquire a realistic expectation of the result to be obtained from each process. The arbitrator's function is quasi- judicial in nature and, because of this, an arbitrator is generally exempt from civil liability for failure to exercise care or skill in performing the arbitral func- tion.40 As a quasi-judicial officer, the arbitrator is guided by ethical norms in the performance of duties. For example, an arbitrator must refrain from having any private (ex parte) consultations with a party or with an attorney representing a party without the consent of the oppos- ing party or cotutsel.4t Moreover, unless the parties agree oth- erwise, the arbitration proceedings are private and arbitrators must take appro- priate measures to maintain the confi- dentiality of the proceedings.'Y It has generally been held that an arbitrator may not testify as to the meaning and construction of the written award.43 In contrast, a mediator is not normally considered to be quasi-judicial, unless he or she is appointed by the court as, for example, a special master. Some courts have extended the doctrine of immunity to persons termed "quasi-arbitrators"- persons empowered by agreement of the parties to resolve disputes arising be- TITX 0022220 267
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JUDICATURE THANKS... the following Benefactors who are helping AJS underwrite the cost of Judicature, the Society's journal. Benefactors: $1,000 or more Cahill, Gordon & Reindel New York, New York Carlton, Fields, Ward, Emmanuel, Smith and Cutler, P.A. Tampa, Florida Covington & Burling Washington, DC Perkins Coie Seattle, Washington Potter Anderson & Corroon Wilmington, Delaware Schnader, Harrison, Segal & Lewis Philadelphia, Pennsylvania Sullivan & Cromwell New York, New York Duane, Morris & Heckscher Philadelphia, Pennsylvania Kirkland & Ellis Chicago, Illinois Kirkpatrick & Lockhart Pittsburgh, Pennsylvania Kramer, Johnson, Rayson, McVeigh & Leake Knoxville, Tennessee Lawler, Felix & Hall Los Angeles, California McCutchen, Doyle, Brown & Enersen San Francisco, California Memel, Jacobs, Pierno, Gersh & El lsworth Los Angeles, California Morrison & Foerster San Francisco, California Thelen, Marrin, Johnson & Bridges- San Francisco, California Titus Marcus & Shapira Pittsburgh, Pennsylvania- Venable, Baetjer and Howard Baltimore, Maryland Vinson & Elkins Houston, Texaa Vorys, Sater, Seymour & Pease Columbus, Ohio West Publishing Company' St. Paul, Minnesota To be listed in each issue as a.. Judicature BenefactoF please write:. Robert f). Raven, Esquire Morrison & Foerster One Market Plara Spear Street Tower San Francisco, California 94106 Publication of this symposium issue was made passible,, in part, by a grant from the Alcoa Foundation. The purpose of the American Judl., cature Society is to promote the eftW -- tive administration of justice. To thia_ end, the Society publishes this journal and other literature, holds confer- ences and seminars, maintains an in- formation and consultation service, conducts empirical research, and operates The Center for Judicial Con- duct Organizations. Membership, is- open to all persons interested in work- ing toward court improvement. JUDICATURE is a forum for fact and opinion relating to all aspects of the administration of justice and its im- provement. Readers are invited to sub- mit articles,, news; and letters for publi cation. JUDICATURE, a refereed journal, notifies authors of its decisions within,: 30 days and publishes most accepte& articles within six months. JUDICATURE is indexed in Index t Legal Periodicals, Current Law Ind Legal Resource lndex, Criminal Ji tics Periodical Index, and PAlS &r~ letin. George H. Williams Executive Vice President and Direc David Richert, Editor Miriam Krasno, Associate Editor JoAnn Ballwanz, Designer Stanley J. Kowalski, Typesetter PROGRAAAS` Frances Kahtr Zamane; Aaaistattt Etwoutlm rector/ProprantKDavid Richart; Dkaalrsc Iicatlonq KathleerrSampson;, Dbaellas maHoa Seevla.Jt.f6raon: Jefttwyrf lA> Dkrctw of the CetttK br Jtttldw OrtpMsatlanw. Yvette Baguew SNW~ Kenneth E Gewerth: Staff A Goldstefrr: Sssniox Staff Attbrnft3 Kowalaki;,, 7ypeselht; ,bw*ttaVft_ ; _ tiveAra<ataW CtarS witk: At>raniaaMti: John l3rrdino,~ Bahnk%,;JaW Derelft* , JM.ar. SchreieR' fntNrter. ,. : = ADMINisTRAT~: "~ RfctanA !t PWmaYftwaieftO, toe/~':0"M tlve~ A saiatartSt.eskiditstriait puter Operatlaw . BaW tarittotk SecretarylRecopboRist;Cbtyaw Stantotrl~ MemberaMpAa&fa ao1fi.OffkvS.%rkwt';^ :_.
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Alternative dispute resolution and the courts: an introduction by James J. Alfini, symposium issue editor T hat the alternative dispute reso- lution (ADR) movement has taken hold in the United States is now an established fact. Pro- ponents and critics agree that there is widespread interest in alternatives to adju- dication. Corporate America increasingly is looking to devices such as the mini-trial to settle complex business disputes.' At- torneys more frequently are considering alternatives such as mediation in divorce cases, arbitration in commercial cases, and private courts or rent-a-judge pro- grams in cases where there is a need for speedy resolution or confidential treat- ment of certain matters. Average citizens are also likely to have ADR options such as the mediation services of a community based program to resolve family, neigh- borhood, and consumer disputes. What is perhaps most significant at present, however, is that the ADR move- ment appears to have captured the imag- ination of the courts. Courts at the fed- eral, state and local levels are actively working to bring ADR mechanisms within the ambit and control of the judi- ciary. Court-sponsored mediation pro- grams have proliferated during the 1980s,s the number of states that have authorized mandatory court- annexed arbitration has almost doubled over the past three years,s and a few jurisdictions are now experimenting with the multi- door courthouse.4 This institutionaliza- tion of ADR processes has been charac- terized by Peter Edelman as a "second stage movement."s According to Edel- man, the first stage witnessed the crea- tion of literally hundreds of local ADR programs during the past decade. Dur- ing this second stage, many of these pro- grams are being "institutionalized" through official recognition, sponsor- ship (funding), or assimilation into the court system. It is the current integration of these ADR mechanisms into traditional judi- cial institutions during this second stage that provides the focus for this sympo- sium issue of Judicature. This second stage of the ADR movement is particu- larly significant from a court improve- ment perspective since it appears to be the basis for a new wave of judicial reform. A second wave of reform In criticizing the ADR movement, some have worried that this recent judicial interest in ADR may represent an aban- donment of interest in more traditional administrative and procedural reforms.6 Indeed, the trend towards including ADR mechanisms in the judicial system might very well be viewed as a second major wave of judicial reform. Following World War II, the first j udi- cial reform wave emphasized the need for structural and administrative changes in the nation's judicial systems to make 1. There is a new publication for business managers-Henry and Lieberman, Ttts MANAG- Sa's GUIDt TO RI4tnLVING L.[GAt. DL1Pu'rL1: BSrrY1! RxsuLTs WtrnouT LmcATtoN (New York: Harper and Row, 1985)-containing detailed descriptions of appropriate dispute resolution devices, particu- larly the mini-triak 2. See Clark, Mandatory mediation of divorce: Maine's experience, 69 JUDiGTURR 310 (1986) and Davis Community mediation in Massachusetts: les- sons jrom a decade of development, 69 JvDieArone 307 (1986). 3. Hensler What we know and don't know about court-administered arbitration, 69 JuDlaA- Tuas 270 (1986) 4. Finkelstein, The D. C. Multi-Door Court- house, 69 JUDICATuas 305 (1986). 5. Edelmatt. Institutionafizing Dispute Resolu- tion eltentatives, 9 Jusz. Sys. J.134 (19e4). 6. See, e.g., Lay, A Blueprint for Judicial Man- agentent,17 CaatcttroN L. xav.1o47,1067 (1984), where the Chief Judge of the U.S. Court of Appeals. for the Eighth Circuit states that. "...divetaion of cases for dispute resolution to other formsof seolxt, dary justice are poor solutions for coping with the caseload problem." 7. New Jersey is generally considered to have them more efficient and businesslike. This first wave of reform had as its prin- cipal tenets (1) the establishment of "unified" state court systems and (2) the creation of professional judiciaries re- moved from politics to run these modern court systems.7 In addition to simplified _ or streamlined court structures, court unification called for centralized admin- istrative authority in the chief justice or the state supreme court and for giving the state's high court broad procedural and administrative rulemaking powers.+ It was assumed that the latter reform- the selection of a judiciary on "merit" rather than through the political process -would produce a competent, innova- tive judiciary capable of developing the necessary managerial capacity or con- sciousness to give meaning to those administrative reforms s To achieve the centralized administra- tion of their judicial systems, states adopt- ing court unification have created state level court administrative offices staffed been the first state to "unify" its courts under the leadership of its chief justice, Arthur T. Vanderbilt, in the late 1940s and early 1950s: Borrowing from the works of Roscoe Pound and other early reform- ers, Vanderbilt's views on court unification were set forth in his MINIA/UM STANDARD6 oi JuDlcLtr. ADSnxtsraArton (New York: National Confcrotue of judicial Councils, 1949). Many of these idess were later adopted by national coanmissions that encouraged their widespread adoption in the 1960r and 1970s. President'sCotmtiuionon hw Enforce- ment and the Administration of Justice, TASrt . Fonce Rzrotrr: Ttte CoueTs. (Wtasktittgtort D.C., U.S. Government Printing Office, 1967); U.S. Na- tional Commission on Criminal Justice standards and Goals, Couats (Wasbington, D.G: U.S. Gov- erttntentPrintingOffice,1973): Ameriatt BarAsso. ciation, SrANDeaos Rat.&rnvG 'ro Covar OaGaNt- z=oN ((3ticago: American Bar Association,1974). 8. Ashman and Parnw, The Concept of a Uni-- fied Court System, 24 DEPAUL L Rsv. 1(1974). .. 9. Friesen, Gallal, and Gallas suggest that free- ing the judiciary from the elective system may leatt; to a more innovative managerial style. Friesen, Ga1~ las and Gallas, MeNaGtNC ttta Cooars 52-53 (ttt& - anapolis: Bobbs-Merrill. 1971x . 252 Judicature Volume 69, Number 5 February-March, 1986 TITX OOlrlrlr 05
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ing on the nature of the award (i.e., bind- ing), it may be judicially enforceable and, to some extent, reviewable. The losing party in a court-annexed arbitration is entitled to trial de novo in court. The mediation process Mediation is a process in which an impar- tial intervenor assists the disputants to reach a voluntary settlement of their dif- ferences through an agreement that de- fines their future behavior.E3 The process generally consists of eight stages: initia- tion, preparation, introduction, problem statement, problem clarification, genera- tion and evaluation of alternatives, selec- tion of alternative(s), and agreement.24 Initiation. The mediation process may be initiated in two principal ways: par- ties submit the matter to a public or pri- vate dispute resolution organization or to a private neutral; or the dispute is re- ferred to mediation by court order or rule in a court-annexed mediation program. In the first instance, counsel for one of the parties or, if unrepresented, the party may contact the neutral organization or individual and the neutral will contact the opposing counsel or party (as the case may be) to see if there is interest in attempting to mediate the dispute. Preparation. As in arbitration, it is of paramount importance that the parties to a dispute in mediation be as well informed as possible on the background of the dispute, the claims or defenses and the remedies they seek. The parties should seek legal advice if necessary, and although a party's lawyer might attend a typical nonjudicial mediation, he or she normally does not take an adversary role but is rather available to render legal advice as needed. The mediator should also be well- informed about the parties and the fea- tures of their dispute and know some- thing about: • the balance of power; • the primary sources of pressure ex- erted on the parties; • the pressures motivating them toward agreement as well as pressures blocking agreement; • the economics of the industry or par- ticular company involved; • political and personal conflicts within and between the parties; • the extent of the settlement author- ity of each of the parties. In mediation, an impartial intervenor helps the parties reach a voluntary settlement. The mediator sets the date, time and place for the hearing at everyone's con- venience.n Introduction. In the mediation pro- cess, the introductory stage may be the most important.26 It is in that phase, par- ticularly the first joint session, that the mediator establishes his or her accepta- bility, integrity, credibility and neutral- ity. The mediator usually has several objectives to achieve initially. They are: establish control of the process; deter- mine issues and positions of the parties; get the agreement-forging process started; and encourage continuation of direct negotiations.n Unlike a judge in a settlement confer- ence or an arbitrator who wields the 23. Salem, Mediation-The Concept and the Pro- cess, in INSfRUCr•oRs MANUAL FOR TEACHING CAPI7- eAC IssuFS (1984, unpublished). See generally Sim- kin, MEDIA110N AND THE DYNAMIO3 OF COLt.LCPIVE BAAGAINING 25 (BNA, 1971)n r.0urt-anneXtd nledia- tion is a process in which judges refer civil cases to a neutral (mediator or master) for settlement pur- poses. It also includes in-court programs in which judges perform the settlement function full-time. 24. See generally Ray. The Alternative Dispute Resolution Movement, 8 PEA(9t AND CHANGE 117 (Summer 1982). The process of mediation and the roles and strategies of mediators have been gener- ally neglected in studies of negotiation. As one author remarked, "Mediation still remains a poorly understood process." Gullive>; supra n. 8. 25. Meagher, "Mediation Procedures and Tech- niques: " 18-19 (unpublished paper on file in the Office of the General Counsel, FMCS, Washington, D.C.). Mr. Meagher is a former commissioner of FMCS. 26. The success of the introductory stage is di- rectly related to two aitieal factors: (1) the appropri- ate timing of the mediator's intervention, and (2) clout of a decision, a mediator does not, by virtue of position, ordinarily com- mand the parties' immediate trust and respect; the mediator earns them through a carefully orchestrated and delicately executed ritual of rapport-building. Every competent mediator has a per- sonal style. The content of the media- tor's opening remarks is generally cru- cial to establishing rapport with the parties and the respectability of the mediator and the process. Opening remarks focus on: identify- ing the mediator and the parties; explain- ing the procedures to be followed (in- cluding c~,aucusing),Ye describing the mediation function (if appropriate) and emphasizing the continued decisionmak- ing responsibility of the parties; and reinforcing the confidentiality and integ- rity of the process.29 When appropriate, the mediator might invoke the commun- ity and public interest in having the dis- pute resolved quickly and emphasize the interests of the constituents in the suc- cessful conclusion of the negotiations.30 Finally, the mediator must assess the parties' competence to participate in the process. If either party has severe emo- tional, drinking, drug, or health prob- lems, the mediator may postpone the proceeding. If the parties are extremely hostile and verbally abusive, the media- tor must endeavor to calm them, by pre- liminary caucusing if necessary.31 Problem statement. There are essen- tially two ways to open a discussion of the dispute by the parties: Both parties give their positions and discuss each is- sue as it is raised; or all the issues are first briefly identified, with detailed exposi- tion of positions reserved until all the the opportunity for mediator preparation. A medis: tor's sense of timing is the ability to judge the psy- chological readiness of an individual or group to respond in the desired way to a particular ideA, suggestion or proposal. Meagher, supra n. 25, at 5, see also Maggiolo, TEGHNIquES OF MEDIATION IN LARoR DlsrtrrFa 62 (Dobbs Ferry, NY: Oceana Pub- lications, 1971). The kinds of preparatory infotmtr tion needed by the mediatorare discussed in the ttxt supra. In many instances, such information is aoc available prior to intervention and thus it must.ba delicately elicited by the mediatorduring the inttv ducoory stage. 27. Meagher supra n. 25, at 26-27. Wall, Medir tion, An dnalysis, Review and Proposed Remttl+t 25 J. coxrucr Itns.157.161(1981). 28. Caucusing is an ex ¢arte conference betwees= a mediator and a party. 29. Meaghet; supra n. 25, at 28; Maggiolo, supn~ n. 26, at 42-44. 36. Id. 31. Ray, supra n. 24, at 121; Maggiolo, supra 26, at 52-54. 266 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022219
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r Table 1: A comparison of arbHratlon/medlation processes Arbitration Mediation 1. Initia6on Submission Demand or notice Court rule or order Selection of arbitrator 2. Preparatlon Discovery prehearing conference Motions Stipulations Arbitrator's oath Arbitrators administrative duties Arbitrator does not seek out information about parties or dispute 3. PrahearkW conference Administrative Scheduling No discussion of underlying merits of claims or defenses No ex parte conferences 4. Hearing Not generally open to public Written record, optional Witnesses and parties testify under oath opening.fatenwnt Made orally Sometimes also in writing pr0ar of proceedinas and evidence Complaining party usually presents evidence first Arbitrator may subpoena witnesses Evidence rules relaxed Arbitrator rules on objections to evidence; may reject evidence Closing ar0uments Oral arguments normally permitted for clarification and synthesis Post-hearing briefs sometimes permitted 6. oeclUonmaking If issues non-complex, arbitrator can issue an immediate decision If issues complex, or panel has three members, extra time may be required 6. Msard Normally in writing, signed by arbitrator(s) Short, definite, certain and final, as to all matters under submission Occasionally a short opinion accompanies award Award may be judicially enforceable or reviewable 1. fnmatlon Submission Court rule or order Assignment or selection of mediator 2. Preparation Usually, no discovery Parties obtain background information on claims, defenses, remedies Mediator obtains information on parties and history of dispute Usually, no mediator oath 3. Introduction Mediator: Conducts ex parte conferences, if necessary, for calming Gives opening descriptive remarks Oevelops trust and respect Emphasizes importance of successful negotiations Helps parties separate the people from the problem 4. Problem ataMment Confidential proceeding, no written record Parties do not speak under oath Issues identified Issues discussed separately; stories told Mediator listens; takes notes Mediator asks questions; reads behavioral signals Mediator calma parties; summarizes stories; defuses tensions Mediator determines whether parties understand stories Mediator usually has no subpoena power 5. Problem darMlcatlon Mediator: Culls out core issues in caucus Asks direct, probing questions Summarizes areas of agreement and disagreement Assists parties in grouping and prioritizing issues and demands Helps parties focus on interests, not positiona 6. Generation and waluatlon of alterrudwa Mediator: Creates doubts in parties' minds aa to validity of their positions Invents options for facilitating agreement Leads "brainstorming;" discusses workability; notes probability of success of options 7. s.laatlon of aaernNlwfs) Medlator: Compliments parties on progress Assists parties in eliminating unworkable options Helps partiea to use objective criteria Helps parties determine which solution will produce optimum results 6. Agreement Mediator: Summarizes and clarifies agreement terms Sets follow-up date, if appropriate Congratulates parties on their reasonableness Usually does not dralt or assist in drafting agreement Agreement is enforceable as a contract and subject to later modification by agreement "chairman," to "enunciator," to "prompter," to "leader," to virtual arbi- trator.57 The mediator who can adopt different roles on this continuum, chang- ing strategies to fit changing circum- stances and requirements of both the 57. Gulliver, supra n. 8, at 220. 58. Id. at 226. 59. Where a settlement agreement is reduced to a judgment, for example, through intervention and assistance of a special master, the "consent judg- ment" is generally enforceable, if necessary, before the court in which the consent judgment isentered. disputants and himself, is inevitably more effective in accumulating and wielding power which is real, yet often not consciously perceptible by the dis- putants themselves.5a Since, in the ordinary case, the result of the mediation process is an agreement or contract not reduced to a court judg- ment,59 the result is binding on the parties only to the extent that the law of contracts in the particular jurisdiction requires. And to the same extent, the result is enforceable by one party against another. As a practical matter, where a party breaches an agreement or contract which is the product of mediation and the agreement is not salvageable, prudence would seem to dictate that in most cases the underlying dispute-and not the breach of agreement-should be litigated. Summary It is clear that both the functions and the levels of power of the arbitrators and mediators are dramatically different. Counsel must assess the nature of the dispute and the personalities of the dis- putants prior to determining which pro- cess, arbitration or mediation, has the best chance to achieve a successful reso- lution of the particular conflict. For example, arbitration would prob- ably prove to be the better dispute resolu- tion choice where the dispute involves highly technical matters; a long-stand- ing feud between the disputants; irra- tional and high-strung personalities; and no necessity of a continued relationship after resolution of the conflict. On the other hand, mediation may prove to be the most effective choice where disputants are stubborn but basi- cally sensible; have much to gain from a continued relationship with one another; and conflict resolution is time-critical. Arbitration and mediation are two separate and distinct processes having a similar overall goal (terminating a dis- pute), while using totally different meth- ods to obtain dissimilar (decisional vs. contractual) results. These differences are best understood by viewing the pro- cesses side-by-side in Table 1. The benefits of arbitration and media- tion to litigants, in terms of cost and time savings, are just beginning to be recognized by lawyers and business pro- fessionals alike. It is hoped that this dis- cussion of the arbitration and mediation processes and their differences will help lawyers feel more comfortable with these two methods of dispute resolution and to use them to their clients' advantage in their joint pursuit of swift, inexpensive, simple justice. 0 JOHN W. COOLEY is a former United States magistrate. He is presently in private practice in Evanston, Illinois and serves as a mediator arbitrator, and consultant in alternative dis- pute resolution. TITX 0022222 269 I I
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Early neutral evaluation: an experimental effort to expedite dispute resolution A program now being tested in the Northern District of California could help reduce the scope of disputes and focus discovery early in a case, resulting in more effective subsequent negotiations. by Wayne D. Brazil, Michael A. Kahn, Jeffrey P. Newman and Judith Z. Gold I n October of 1982, the chief judge of the federal district court for the Northern District of California, Robert F. Peckham, appointed a task force to which he gave one overrid- ing charge: to determine if there are ways the court can help make litigation less expensive for clients. Judge Peckham expressed deep concern about the weight of the financial burdens that even rela- tively routine litigation imposes on the parties. He shared his fear that these burdens impair access to justice and might be compromising the quality of the product that emerges from the adjud- icatory process. He asked the lawyers and judges on the task force to try to develop new procedures that would make the system more economically sensible. While parts of the task force examined the court's arbitration and settlement con- ference procedures, Judge Peckham asked a separate committee to look for other kinds of procedures that might help cut litigation costs. This committee began by studying the considerable body of mate- rial that has been developed by propon- ents of various forms of alternative dis- pute resolution. It then interviewed ex- perts in emerging dispute resolution techniques and studied contemporary analyses of the cost of litigation, attempt- ing to identify where the most money is spent and the causes of the cost problem. A consensus gradually developed in the committee. It became convinced that the place where the most could be saved is in the formative stages of litigation. It is in those stages that patterns and expec- tations are set and thus it is in those stages where an infusion of intellectual discipline, common sense, and more direct communication might have the most beneficial effects. The committee identified several facts of early litigation life that make it diffi- cult for lawyers and clients to resolve disputes efficiently. One is notice plead- ing. Complaints and answers often do not communicate a great deal about the parties' positions and what supports them. Moreover, pleadings often exag- gerate the size of the dispute. To preserve options and, perhaps, for tactical pur- poses, parties tend to assert multitudes of causes of action and defenses, a practice that makes it difficult to locate the true center of their dispute. These pleading practices have at least two ill effects on the cost of litigation: parties must use discovery to learn their opponent's basic position and to assay its underpinnings; and the scope of the discovery parties must conduct is very broad because the scope of the litigation, as presented through the pleadings, is so broad. And the discovery process itself is notoriously expensive, especially in cases where parties are unsure of their opponent's theories or are not inclined to be forthcoming in response to discov- ery probes. The committee concluded, however, that uncertainty about opponents' posi- tions is not the sole source of inefficiency in the early stages of litigation. Another problem is that some lawyers and lit- igants seem to find itdifficult to squarely face their own situations early in the life of a lawsuit. Sometimes counsel have difficulty developing at the outset a coherent theory of their own case. Some- times clients are not prepared to be real- istic about their situations. Sometimes litigants and lawyers are so pressed by other responsibilities that they can bring themselves to systematically analyze their own cause only when some external event forces them to do so. Sometimes formidable psychological barriers may stand in the way of such confrontations. It is difficult to make big decisions. It is easier, psychologically, to launch a cam- paign to collect information, thus post- poning serious efforts to come to terms with one's situation. Early, realistic analysis The committee recognized that these barriers to prompt, forthright commun- ication and to early, realistic case analy- sis are major sources of litigation costs. Thus it set out to design a procedure that might help litigants overcome these dif- ficulties. The goal was to design a proce- dure that could take place early in lit:iga- TITX 0022232 279
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A mediator has little systemic-based povVer. tween them.1* Although the law is far from clear on this point, a very persuasive argument may be advanced that media- tors are generally immune from lawsuits relating to the performance of their medi- ation duties where the agreement under which they perform contains a hold- harmless provision or its equivalent. In absence of such contractual provi- sion, it would appear that a functionary such as a mediator, selected by parties to perform skilled or professional services, would not ordinarily be immune from charges of negligence but rather is re- quired to work with the same skill and care exercised by an average person en- gaged in the trade or profession in- volved.15 Of course, weighing heavily against a finding of negligence on the part of a mediator is the intrinsic nature, if not the essence, of the mediation process which invests the parties with the complete power over their destiny; it also guaran- tees any party the right to withdraw from the process and even to eject the mediator during any pre-agreement stage.'s Also, in contrast to arbitrators, certain ethical restrictions do not apply to medi- ators. Mediators are permitted to have ex parte conferences with the parties or counsel. Indeed, such caucuses, as they are called, are the mediator's stock-in- trade. Furthermore, while one of the principal advantages of a privately-con- ducted mediation is the non-public or confidential nature of the proceedings, and although Rule 408 of the Federal Rules of Evidence and public policy considerations argue in favor of confi- dentiality, the current state of the law does not provide a guarantee of such confidentiality." However, in most cases a strong argument can be made that the injury from disclosure of a confidential settlement proceeding is greater than the benefit to be gained by the public from nondisclosure.4s Finally, unlike the arbitrator, the per- formance of whose function may be en- hanced by knowledge, skill, or ability in a particular field or industry, the mediator need not be an expert in the field which encompasses the subject of the dispute. Expertise may, in fact, be a handicap, if the parties look wrongly to the mediator as an advice-giver or adjudicator.49 Comparative power The arbitrator derives power from many sources. The person may be highly re- spected in a particular field of expertise or widely renowned for fairness. But aside from these attributes which eman- ate from personal talents or characteris- tics, the arbitrator operates within a pro- cedural and enforcement framework which affords considerable power, at least from the perspective of the disputants. Under certain circumstances, arbitrators may possess broad remedy powers, in- cluding the power, though rare, to grant injunctive relief.-" They normally have subpoena power, and generally they have no obligation to anyone, not even "to the court to give reasons for an award. "s t In general, a valid arbitration award constitutes a full and final adj ustment of the controversy.52 It has all the force and effect of an adjudication, and effectively 44. See Craviolini v. Scholer & Fuller Associated Architects, 89 Ariz. 24, 357 P.2d 611(1960), where an architect was deemed to be a"quasi-arbittator" under an agreement with the parties and therefore entitled to immunity from civil liability in an action brought against him by either party in rela- tion to the architect's dispute-resolving function. Compare Gamtnell v. Emst & Ernst, 245 Minn. 249, 72 N.W.2d 364 (1955), where certified public ac- countants, selected for the specific purpose of mak- ing an examination and of auditing the books of a corporation to ascertain its earnings, were held not to have acquired the status of arbitrators so as to create immunity for their actions in the perfor- mance of such service, simply because the report was to be binding upon the parties. 45. Domke, su¢ra n. 12, §23:01, at 352-53. 46. As two professional mediators have poig- nantly commented: "Unlike arbitration and other means of adjudication, the parties retain complete control...If they do not like the mediator, they get anotherone. If they fail to produceresults, they may end the mediation at any time." Phillips and Piazza, How to Use Mediation,l0 A.B.A. J. oF Sacr. ot+. Lrr. 31 (Spring, 1984). 47. See Grumman Aerospace Corp. v. Titanium Metals Corp., 91 F.R.D. 84 (E.D. N.Y. 1981) (Court granted a motion to enforce a subpoena duces tecum involving a report prepared by a neutral fact-finder on the effects of certain price-fixing activities). See generally Restivoand Mangus, dlter- precludes the parties from again litigat• ing the same subject.5s The award can be challenged in court only on very narrow grounds. In some states the grounds relate to partiality of the arbitrator or to misconduct in the proceedings, such as refusal to allow the production of evi- dence or to grant postponements, as well as to other misbehavior in conducting the hearings so as to prejudice the inter- ests of a party.54 A further ground for challenge in some states is the failure of the arbitrator to observe the limits of authority as fixed by the parties' agreement-such as deter- mining unsubmitted matters or by not dealing definitely and finally with sub- mitted issues.55 In Illinois, as in most states, a judgment entered on an arbitra- tion award is enforceable "as any other j udgment."ss Thus, from a systemic per- spective, the arbitrator is invested with a substantial amount of power. In striking contrast, with the excep- tion of a special master appointed by the court or a neutral appointed by some governmental body, the mediator has lit- tle if any systemic-based power. Most if not all of a mediator's power is derived from experience, demonstrated skills and abilities, and a reputation for successful settlements. Any particular mediator may wield power by adopting a particular role on what might be described as a continuum representing the range of strengths of intervention: from virtual passivity: to native Dispute Resolution: Confidential Problem- Solving or Every Man's Evidence? Alternatives to the High Cost ojLitigation, 2 LAw & Bus. INC./CTR. Foa Posuc Rtsovtuts, 5(May, 1984). Parties can assist the preservation of confidentiality of their mediation proceedings by reducing to writing any expectations or understanding regarding the confi- dentiality of the proceedings and by being careful to protect against unnecessary disclosure both within their respective constituencies and the outside world, id. at 9. 48. See, e.g., NLRB v. Joseph Macaluso, 618 F.2d 51 (9th Cir. 1980); Pipefittets Local 208 v. Mechani- cal Contractors Assn. of Colorado, 90 Lab. Cas. (CCH)1 12,647 (D. Colo. 1980). 49. Phillips and Piazza, supra n. 46, at 33. 50. In re Ruppert, 29 LA 775, 777 (N.Y. Ct. App. 1958); In re Griffin, 42 LA 511 (N.Y. Sup. Ct. 1964). See generally Elkouri and Elkouri, supra n. 3, at 241-51. 51. Domke, supra n. 12, §29:06, at 436. 52. Donoghue v Kohlmeyer & Co., 63 I11. App. 3d 979, 380 N.E.2d 1003, 20 111. Dec. 794 (1978). 53. Borg, Inc v. Morris Middle School Dist. No. 54, 3 ill. App. 3d 913, 278 N.E.2d 818 (1972). 54. Domke, supra n. 12, §33:00, 463. 55. Id. In Illinois, the court's power to vacate or modify arbitration awards is narrowly circum- scribed. See ILL. Rzv. STAT. ch. 10, " 112, 113 (1981). 56. ILL. Rsv. STAT. ch. 10, 1114 (1981). 268 Judicature Volume 69, Number 5 February-March,1986 TITX 0022221
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maxitnize its potential for producing ben- efits to the courts, lawyers and litigants. Since 1979, the Institute for Civil Jus- tice (ICJ) at the Rand Corporation has been engaged in a program of research on a particular alternative dispute reso- lution procedure, court-administered ar- bitration, that many court officials and lawyers feel has particular promise for civil lawsuits. In the course of this re- search we have monitored the spread of court-administered arbitration pro- grams, evaluated the effects of imple- menting programs, and studied the im- plications of alternative program designs. Our work has encompassed sys- tematic surveys of court officials, case studies of specific programs, surveys of lawyers' and litigants' attitudes toward court arbitration, and technical assist- ance to local court officials involved in designing or modifying court programs. This article describes what we have learned to date, and what questions remain to be answered. A profile Court-administered arbitration pro- grams may be established by statute, by supreme court rule, or by local court rule. However established, all programs authorize trial courts to require arbitra- tion of civil damage suits that fall within a specified jurisdictional limit, as a pre- condition for placing those suits on the trial calendar. Arbitration results in a verdict that has the force of a court judgment. If any of the parties is dissatis- fied with the verdict, however, he or she may reject it and request that the case be calendared for a trial de novo. In many programs, appellants who request de novo trials are required to reimburse the court for the arbitrators' fees; in addi- tion, in some programs, court costs and attorney fees may be levied on unsuccess- ful appellants. Such fees are intended to discourage frivolous appeals. This article is based in part on a presentation deliv- ered by the author to the First National Conference on Court-Administered Arbitntion, sponsored by the National Institute for Dispute Resolution, May, 1985. 1. Merry and Silbey, What Do Plaintiffs Want? Reexamining the Concept of Dispute, 9 JUST. sYS. J. 151 (1984). 2. Adler, Hensler, and Nelson, slstrLE JUSTIGS: How LITIGANTS FARE IN THE PITTSBURGH COURT ARBITRATION PROGRASS (Santa Monica, CA: The Rand Corporation, 1983). 3. Ebener and Betancourt, COURT-ANNEXED AR- 6ITRATION: THE NATIONAL PICTURE (Santa Monica, CA: The Rand Corporation, 1985). Court-administered arbitration is neither voluntary nor binding. In all court-administered arbitration programs, cases assigned to arbitration are heard by one or more private attor- neys or retired judges who volunteer to serve as arbitrators. Usually, attorneys' time is provided, at least in part, pro bono, since they typically receive only a small honorarium for their participa- tion. Arbitration hearings are private, informal, and usually quite brief, the proceedings are generally not recorded, and relaxed rules of evidence prevail. In particular, in lieu of witnesses, medical and other reports are usually sufficient as evidence. In some programs only limited discovery is permitted prior to the hearing. Before they begin the hear- ing, some arbitrators may ask the parties if they would like assistance in attempt- ing to settle the case, but once a hearing begins, arbitration proceeds as an adju- dicative process. The facts of the dispute are heard, albeit in an abbreviated fash- ion, and the litigants are usually present and may testify. The neutral third par- ty(ies) deliberates and issues a verdict, usually within a few days. Although court-administered arbitra- tion shares many features with other al- ternative dispute resolution procedures, it is distinguished from them in several important ways. Unlike private commer- cial arbitration, court-administered arbi- tration is neither voluntary nor binding. Unlike a traditional mediator, the arbi- trator is not trying to help the disputants fashion a mutually agreeable compro- mise. And unlike most judicial settle- ment conferences, there is a true hearing of the case and an opportunity for lit- igants to participate in that hearing. The spread of arbitration The first court-administered arbitration program was established in 1952, in Phil- adelphia, by amending an 18th century statute that provided for the referral of trial cases to arbitrators. By the 1960s, similar arbitration programs had been established in courts across Pennsylva- nia, and word of their success in resolv- ing small money damage suits had spread outside the state's limits.z In the early 1970s, as many trial courts were strug- gling to find ways of dealing with sharply increasing civil caseloads, a number of states adopted mandatory arbitration programs patterned after Pennsylvania's. More recently, during the late 1970s and early 1980s there was a third wave of program adoption. By December 1984, 16 states had authorized mandatory court-administered arbitration pro- grams.3 A national conference on court- administered arbitration, sponsored by the National Institute of Dispute Reso- lution in May 1985, may have given further impetus to this recent wave of adoptions; by October 1985, two addi- tional states had passed legislation au- thorizing mandatory arbitration pro- grams (Illinois and North Carolina). Early interest in court-administered arbitration was confined to the state court systems. But in 1978, the federal courts decided to experiment with man- datory arbitration in three district courts. Following the formal completion of the experiment, one of the three courts dis- carded its program while the remaining two maintained theirs. In 1984, under Public Law 98-411, Congress approp- riated $500,000 of fiscal year 1985 funds to support a new arbitration initiative in the federal district court system. The new funds are being used to mount mandatory arbitration "demonstrations" in eight districts, bringing the total num- ber of federal courts with authorized sys- tems to ten. Table 1 lists the states and federal district courts that have autho- rized mandatory court-administered arbi- tration programs to date. Once established, arbitration programs have tended to spread within regions from one state to another,. and within states from one jurisdiction to another. Table 1 indicates what we learned about the status of local arbitration programs in the course of our last national survey. Based on this information, we estimate that court-administered arbitration pro- grams now exist in approximately 200 of the country's trial courts. Court-administered arbitration pro- TITX 0022224 271 I
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„-f:= flpun I UunM.ry WMOMbnal Ihnft auun-2AmMININN YEllntlcn PnaP~. tiH r1d 190 1985 B t 64_ 5-4- 4 3 f z+- und« $1 0 . 000 s10,000 s2s,000 •IncluaM Propmm, wltn no monotary iurisaictionW Iimlt light on the issue.' The empirical data from these studies suggest that court- administered arbitration can contribute significantly to reducing court conges- tion, costs and delay and to diminishing the financial and emotional costs of lit- igation for parties. But the data also indicate that arbitration's ability to ful- fill this potential is critically dependent on program design and implementation decisions, and on lawyers' responses to arbitration, and that arbitration cannot, by itself, be depended upon to "solve" all of the problems that characterize con- temporary civil litigation. Reducing court congestion. In both California and Pittsburgh, about 60 per cent of civil money suits (including per- sonal injury, property damage and con- tract disputes) are diverted to arbitra- tion; in Bucks County the percentage is closer to 90 per cent. The percentage of cases diverted by any particular program is dependent on the program's eligibility rules, the proportion of cases that are eligible under those rules and the proce- dures that are used for determining elig- ibility. Some state program rules permit 4. The California study, conducted during the first year of program implementation, focused on arbitration's potential for cutting congestion, court costs and delay (Hensler, Lipson, Rolph, JUatcrAL ARBITRATION IN CALIFORNIA: THE FIRST YEAR (Santa Monica, CA: The Rand Corporation, 1981)). The Pittsburgh study focused on the effects of arbitra- tion on litigants (Adler et al., supra n. 2). Bucks County is one of three sites in an on-going ICJ study of litigants' perceptions of "procedural jus- tice." Burlington and Union Counties were pilot sites for the New Jersey arbitration program; the OW $n.ooo• so few cases to be diverted to arbitration that local jurisdictions have been reluc- tant to invest resources in program im- plementation. Some assignment proce- dures provide incentives and opportuni- ties for parties and their lawyers to bypass arbitration and obtain placement on the trial calendar.. And in every court it is possible for arbitration cases to appear on the court's trial calendar after arbitration is completed, as a result of the trial de novo process. It is clear, however, that it is possible for any court to develop rules and proce- dures that will result in the diversion of a substantial fraction of its civil money suits and it is likely (as we shall see be- low) that most of these cases can be per- manently diverted. Policymakers should note, though, that a court's total civil damage caseload may only represent a modest fraction of its overall caseload, which will generally include many crim- inal cases, family law cases, equitable disputes, and other matters. As long as arbitration is considered appropriate only for civil damage suits, and only for the lower-value cases among these,5 it ICJ collaborated with the Administrative Office of the New Jersey Court in designing and analysing surveys of lawyers and litigants (see Hensler, RE- FOEMING THE CIVIL LITIGATION PstocEss: How COURT ARBITRATION MAY HELP (Santa Monica, CA: The Rand Corporation, 1984)). 5. This assumption is being challenged in some locales which are considering broader jurisdiction for arbitration programs. 6. Judicial Council of California, ANNUAL RE- PoaT, 1984. may ease court congestion but cannot eliminate it. Reducing court costs. Cost savings due to arbitration depend on three fac- tors: how much the court would spend on arbitration-eligible cases in the ab- sence of an arbitration program, how much it costs to administer the arbitra- tion program itself, and how many cases require court attention after arbitration. Unfortunately, most courts cannot pro- vide reliable data on all three factors, making estimation of savings due to arbitration extremely problematic. The best data available relate to pro- gram administration costs. These gen- erally have two components: costs to process cases (determining eligibility, notifying parties of assignment to arbi- tration, selecting arbitrators to hear spe- cific cases, etc.) and fees to arbitrators. How much it costs to administer an arbi- tration program depends critically on program design and implementation de- cisions. California's statutory require- ment that the court assess whether a case is eligible for arbitration placed a new burden on judges' time. In addition, a complex procedure that provides for the parties' attorneys to participate in arbi- trator selection adds to the tasks that must be carried out by the program's administrative staff. An honorarium of $150 per day paid to the single arbitrator who hears each case further drives up the cost of the program. A recent Judicial Council report estimated that the cost to process a case through arbitration in California in Fiscal Year 1982 was about $123 for each case assigned to the pro- gram, and about $299 for each case actu- ally heard by an arbitrator.6 These esti- mates do not include the cost of judge time allocated to determining arbitra- tion eligibility. In Pittsburgh, when the plaintiff's at- torney files a case, he or she is asked whether it is eligible for arbitration. If it is declared eligible, the court clerk auto- matically assigns it to the program and schedules a hearing date for it. Arbitrators are assigned to hear cases on the day of the hearing, using a pragmatic approach to achieve a roughly random assignment. Three-person panels hear each case, but in a single day they are likely to hear four or five cases. Although each arbitrator is paid $100 per day, the average arbitrator fee per case works out to about W. When TITX 0022226 273 r
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vately with one side (or litiganti at a time in an effort to facilitate frankness and to ascertain whether the parties' privately articulated positions are close enough to make settlement feasible. Timing There are seieral featuros of the rarlv neutral evaluation program that com- bine to make it unique. Among these, the most important is the fact that the evaluation and planning session takes place early in the life of the litigation.' In some cases the session is held even before the first judicially-hosted status conference (the theory being that use of the judge's time at that conference can be more productive if the parties already have completed the evaluation exercise). In other matters the court permits the parties to conduct very limited key dis- covery prior to the evaluation session, on the theory that in some matters a little discovery might go a long way toward improving the parties' understanding of their positions and toward equipping the evaluators to make meaningful assessments. Because some motions can dramati- cally affect the shape or even the exis- tence of the litigation, the court will occa- sionally decide an important motion before sending the case to the evaluation session. Since some of the potential benefits of the session would be seriously jeopardized if it were postponed until counsel had completed most discovery, or in other ways "matured" the case, the court insists that the parties get the advantages of the evaluation session early, usually within three to four months of the filing of the complaint. The court does not wait for the matter to be "at issue" because too often a great deal of time elapses before all parties have filed their answers. Program elements ~Yhile the court has not imposed a rigid format, since it is sometimes wise to permit the instincts of the experienced and neutral evaluator to shape a proce- dure that is tailored to the peculiar needs of a given situation, the program has the following components. At least seven calendar days before the date fixed for the evaluation ses- sion each party delivers to the evalua- tor and to other parties a written Eval- uation Statement. The Statement may be no longer than 10 pages (double spaced). The litigants are permitted to include in their Statements anything they think would be helpful in achiev- ing the ends of the evaluation pro- gram. However, the rules require the statements (1) to identify any legal or factual issues whose early resolution might reduce the scope of the dispute or contribute significantly to the pro- ductivity of settlement discussions and (2) to suggest which discovery prom- ises to contribute most to expediting case preparation and to equipping the parties to assess the strengths and weak- ness of their positions. After consultation with all counsel, the evaluator picks a specific time and place for the session that is as conve- nient for the participants as possible. The session is held on clearly neutral territory, sometimes in the evaluator's office, sometimes in a room in the courthouse. The environment is as in- formal and unthreatening as possible. At the session the evaluator begins by making a short "speech" describing the goals of the session and setting the tone he or she hopes will predominate. The evaluator emphasizes how much the parties can expect to accomplish if they adopt a constructive and coopera- tive attitude. The evaluator also empha- sizes that he or she is a problem solver, a "solution oriented" person who will help the parties search creatively for common ground and for ways to max- imize the benefits each litigant derives from the neutral evaluation. The evaluator then describes the basic ground rules of the session, emphasizing that all oral communications made dur- ing the session are absolutely privileged, as will be the evaluation of the case. The evaluator also reminds the parties that the rules of evidence will not apply dur- ing the session, and that there will be no formal taking of testimony and no cross examination. Case presentation The evaluator asks each party to make a 15 to 30 minute presentation, focusing on the "open" (apparently disputed) areas. The evaluator asks the parties during these presentations to explain their views of the facts and to describe the evidence that will support their views. He or she invites the parties to use documents, where appropriate, to explain or support their contentions. Where he or she does not understand a party's presentation, or thinks a question would help clarify the basis for a position, he or she may inter- rupt the presentation with questions. But he does not permit opposing parties to ask questions or make comments wh ile a presentation is being made. While listening to the parties' presen- tations the evaluator attempts to identify areas where positions are not far apart, i.e., areas of substantial agreement, or in which substantial agreement seems pos- sible with a little coaxing. After the par- ties have completed their presentations, the evaluator identifies these areas and tries to encourage stipulations. Next, the evaluator identifies, with the help of the parties, the key unestab- lished facts on which resolution of the dispute might turn. He or she attempts to divide these facts into two catego- ries; those which are simply unknown to the parties; and those which are affirmatively disputed, i.e., those as to which the parties insist on incompati- ble versions. The evaluator attempts to identify the most efficient way to establish the poten- tially important but merely unknown facts. Where appropriate, he or she might encourage joint fact finding. With re- spect to potentially important facts that the parties affirmatively dispute, the evaluator probes why the parties dis- agree. He or she explores with as much specificity as possible the nature and probative power of the evidence each party says it could muster in support of its views. During this probing the evalu- ator keeps in mind that one of his or her tasks at the end of the session will be to recommend a discovery plan and/or a motion practice plan that would move the case into a posture amenable to set- tlement as expeditiously as possible. After probing the support for differ- ing views of the facts, the evaluator offers his or her assessment of the relative strengths of key evidence and arguments. Then, if feasible, the evaluator offers a valuation, i.e., using the information available up to that point, and drawing on his or her experience, he or she pre- dicts the likelihood of liability and the probable amount of damages, if any. Both predictions might be made in TITX 0022234 281
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some saN in the selectiun, the}may be more inclined to accept the ai% ard, but providing for attorney participation may require a cumbersome and time-consum- ing process. If the court is in charge of assigning the arbitrators, the process may be expedited but litigant and attor- ney satisfaction may decrease. 6i'here slaould the hearings be held? If they are held outside the courthouse, there is no need to set aside space for them, and litigants will be spared the possible emotional strain of coming into court. But it will be more difficult for the court to monitor the scheduling of hear- ings, and the arbitrators may grow lax in adhering to the court's guidelines for timely disposition. If the hearings are held in the courthouse, court personnel can maintain control over the schedule and the litigants may be more inclined to feel they have had their "day in court." Rather than moving cases "out of the courthouse," however, the court will simply have set up another specialized division to resolve cases. Should there be a financial disincen- tive for appeal? If there is no disincen- tive, the rate of appeals may be so high as to wipe out any reductions in the size of the trial list due to case diversion. If the disincentive is too high, achieving polit- ical acceptance of the program will be difficult, and the disincentive itself may ultimately be declared an unconstitu- tional burden on the right to trial. Who should fund the arbitration pro- gram? If a legislature requires courts to adopt the program, perhaps the state should pay for the additional adminis- trative expenses. (Traditionally, most trial court expenses are borne by county governments.) But if the program effec- tively reduces trial court workload, the court should experience savings in the trial division that it can divert to sup- porting the arbitration program and it may, over the long run, actually expe- rience a reduction in total court costs. Alternatively, if arbitration provides lit- igants with a more expeditious and less expensive means of resolving their dis- putes, perhaps they should pay a special arbitration fee to support the program. If the court requires such a payment, however, it is put in the perhaps ques- tionable position of charging litigants with small-value suits a higher fee to file their cases than is charged for filing higher-i alue, trial-bound cases. Necessary information With the multiplication of research monographs and conferences on court- administered arbitration, judicial poli- cymakers may find themselves in the position of having more assistance in designing and implementing programs than they can handle. But it is too early to conclude that we understand the full ramifications of instituting mandatory arbitration requirements. As pressure from legislatures and interest groups to adopt and expand arbitration mounts, I believe we need to give more attention to answering the following questions. What kinds of cases are not good candi- dates for arbitration? As jurisdictions be- come comfortable with arbitration, there is often a move to expand the jurisdic- tional limits of a program, either by in- corporating new kinds of cases, or rais- ing the monetary limits on money damage suits, or both. Is it sensible to subject all kinds of civil suits to manda- tory court arbitration? In my conversa- tions with court officials and practition- ers, I frequently ask: "What kinds of cases do you think are inappropriate for arbitration?" The usual reply is that some cases are simply too complicated to be amenable to a streamlined process: they require extensive discovery, briefing of the issues and the full panoply of a court trial. Complicated cases, I am told, occur with some frequency among smaller value monetary claims and there are simple cases in which large amounts of money are at stake. Should we relegate all small cases to alternative dispute reso- lution mechanisms, while preserving more expensive traditional procedures for big stakes cases whether or not they "need" them? We need to do more hard thinking, and perhaps some careful expe- rimentation, regarding this question. What factors affect decisions to appeal? Most judicial policymakers feel that some financial disincentives are necessary to discourage frivolous appeals from arbi- tration but that it is improper (and probably infeasible) to require that lit- igants pay substantial amounts of money as a precondition for appeal. We know very little about how the average litigant decides whether to appeal, or indeed whether the lawyer or the litigant plays the primary role. Where appeal rates 278 Judicature Volume 69, Number 5 February-March, 1986 from arhitration are low, w•e tend to assume that mo~,t litigants tind the arbi- tration verdicts roughly acceptable; in- stead, they may simply decide that they have no other option but to `lump it."1e Institutional litigants presumably assess the costs of appeal somewhat differently; even if these costs outweigh the amount at stake in the individual case, they may take appeals as a matter of policy, in order to "keep the system honest"-that is, operating in a fashion that is accepta- ble to them. Understanding the role of appeals in the arbitration litigation pro- cess is important to understanding the equity implications of instituting man- datory arbitration programs. How does arbitration affect settlement? Much of the discussion and research about arbitration focuses on differences between arbitration and trial, but most cases that are currently arbitration-eligi- ble have little or no likelihood of being tried. The real significance of instituting arbitration may lie in its effects on the settlement process. How does arbitra- tion affect lawyers' and insurers' negoti- ation strategies? How does it affect the timing of settlements? Perhaps most important, how does it affect settlement outcomes? We need to focus more atten- tion on these questions as well. How does arbitration affect the prac- tice of law? Finally, underlying all these questions is perhaps the most important of all, how does arbitration affect what lawyers do? Lawyers in many jurisdic- tions are understandably wary of arbitra- tion programs. Some believe mandatory arbitration represents a small but dan- gerous step away from the right to jury trial. Some see it as moving further in the direction of production line litigation that is the antithesis of the individually- crafted form of lawyering that they learned at school. Underlying many law- yers' discomfort with arbitration is a concern about its impact on their fees. How lawyers modify their behavior in the light of arbitration may ultimately determine the future of this form of alternative dispute resolution. 0 18. Felstiner, Abel, and Sarat, The Emergence and Transformation of Disputes: Naming, Blam- ing, Claiming..., 15 LAW & Soc'v Rev. 631 (1980- 81). DEBORAH HENSLER is a senior social sci- entist at the Institute for Civil Justice, the Rand Corporation. TITX 0022231
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The summary jury trial- an alternative method of resolving disputes by Thomas D. Lambros W ith the increasing empha- sis in American jurispru- dence on providing effi- cient as well as equitable justice, many new procedures have been developed to assist parties in resolving disputes prior to a trial in the traditional fashion. Certainly, many of these tech- niques are effective and should be in- cluded in every judge's arsenal of dispute resolution tools. One shortcoming of nearly every settlement alternative, how- ever, is the absence of a jury in the deci- sionmaking process. A jury is important for two reasons central to the American tradition of jus- tice. First, jurors bring a fresh viewpoint to the analysis of human affairs, free from the biases of the professional law- yer and judge. Second, the jury system involves the citizens of this country in the process of deciding issues of impor- tance to their community. Settlement discussions invariably be- come difficult at the point where the judge and the lawyers attempt to view the case through the eyes of the prospec- tive jury. Traditionally, judges and law- yers have relied on their past experiences to evaluate cases. Although this method is somewhat effective, its limitations are manifested in the many cases that go to trial despite their great settlement po- tential. Settlement discussions also become difficult when the parties themselves have an unrealistic view of the facts or the law surrounding their case, either because they have been poorly advised by their counsel or have refused to consider the facts from their opponent's stand- point. Many times, parties like this do not "awaken" to the true merits of their case until they hear their opponent's trial presentation. No amount of theo- rizing or abstract discussion between attorney and client can solve this prob- lem; the client must be shown the way his or her case will appear at trial. The summary jury trial was born from these concerns. While the rules and the limits of the procedure are very flexible, the summary jury trial usually involves a summarized presentation of a civil case to an advisory jury for the purpose of showing the parties (as well as the law- yers and the judge) how a jury reacts to the dispute. The procedure is non-bind- ing (unless agreed to by all parties) and, therefore, does not impair the constitu- tional right of any party to proceed to jury trial. However, a full jury trial after a summary jury trial is almost always unnecessary because the procedure fos- ters settlement of the dispute. The evidentiary and procedural rules governing summary jury trial are few and flexible. Nevertheless, to achieve the goal of facilitating settlement, the sum- mary jury trial is conducted in open court with appropriate formalities, and clients and other key decisionmakers with settlement authority are required to attend. The lawyers are expected to have their case in a state of trial readiness, and to present to the jury the best possible summation of their claims. The proce- dure is normally concluded in a half-day and rarely lasts longer than a full day. This article will discuss, in a general way, the types of cases which are good candidates for summary jury trial, how such cases should be managed before, during, and after the procedure, and how the summary jury trial should be used to precipitate equitable settlements. Case selection criteria The summary jury trial is intended pri- marily for cases that will not settle using more traditional methods. This should be most obvious to the judge in the matter when he or she has conducted one or more pre-trial conferences and finds that the parties are failing to reach a settlement of the case for any of the following reasons: . There is a substantial difference of opinion among the lawyers as to the jury's evaluation of unliquidated dam- ages such as "pain and suffering;" • There is an irreconcilable difference of opinion over the jury's expected per- ception of the application of the facts to such hard-to-define legal concepts as "reasonableness" and "ordinary care;" • One or more of the parties (or their counsel) appears to have an unrealistic view of the merits of the case when con- fronted with a reasonable presentation of the argument being made by their opponent; • One or more of the parties is reluc- tant to reach any settlement agreement because of the desire to have their "day in court" and to have the case evaluated by an impartial jury. The decision to use summary jury trial rarely turns on the substantive legal aspects of a case, but rather depends upon the dynamics of the controversy. Summary jury trial has been used in a wide range of cases from relatively sim- ple negligence and contract actions to complex mass tort and antitrust cases. Many lawyers and some judges might shy away from assigning a complex case to summary jury trial; it is, however, the complex case that is most suitable for this alternative method of dispute resolution. Obviously, if a case is only expected to require a day or two to try, there is little advantage in conducting a summary jury trial-the litigants and the court might as well simply try the case. While there may be some grounds to suggest that a highly technical case is difficult for a jury to resolve, those factors apply as much to a standard trial as they do to the summary jury process. At least in the summary jury process, the jurors will have the entire fact situation presented to them in a period of time during which they can focus their full attention on the case, rather than spread out over weeks or months when key facts can be forgotten. This advantage has been borne out in actual summary jury trial situations where complex anti- 286 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022239
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ranges, e.g., a 60 per cent-30 per cent chance of liability, and damages beaveen 575,000 and $100,000. He or she orally communicates this valuation to all par- ties and counsel assembled simultane- ously (or bv telephone conference call, when necessary). The evaluator mails his or her assessments and valuation to any party (i.e., clienti -who has not par- ticipated directly in the session. After assessing the case, and, perhaps, commenting on the likely cost of com- pleting discovery and going through trial, the evaluator might ask the parties if they would be interested in exploring possibilities of settlement. If the parties seem open to pursuing this course, the evaluator could follow any number of alternative approaches. She might host a discussion of settlement positions in which all lawyers and parties simul- taneously participate. Or, she might start the process by meeting first only with the lawyers. Another approach would begin with private meetings, seriatim, with each lawyer (or each lawyer and client). If the parties are not interested in con- ducting settlement negotiations at this juncture, or if they conduct such negoti- ations unsuccessfully, the evaluator's fi- nal, but by no means least important task, is to recommend the discovery or motions he or she thinks ought to be pursued (and in what order) to prepare the case as efficiently as possible for meaningful settlement discussions. In making these recommendations, the evaluator focuses on the matters that are at the center of the dispute. He or she formulates a discovery plan under which the parties acquire first the evidence on which the most significant aspects of the case are likely to turn. In cases where the testimony of key witnesses (percipient or expert) is likely to be pivotal, the evalua- tor recommends a deposition schedule. In cases where documents are likely to be crucial, he or she recommends a proce- dure for expeditious production. In all cases his or her goal is to distin- guish information that is really neces- sary for serious settlement negotiations from the broader information that is only likely to be needed if the case goes to trial. Before the close of the session the evaluator records his or her discovery (or motion) recommendations on a pre- scribed form, copies of which he or she delivers to each party. The evaluators have no power to enter binding orders of any kind. If the evaluator or the parties felt that a follow-up session would be useful, they could discuss what the objectives and timing of such a session might be. Such a session would be permitted only on the consent of everyone involved, including the evaluator. Based on the first cases that have gone through this program, there is reason to believe that there are a good number of cases in which follow- up sessions might well be productive. For example, the parties might want to make a second effort at settlement after they have taken a key deposition or dis- covered important records. If they respect the evaluator, they might want to capi- talize on her knowledge of the case in a second session, after the key discovery. Limits on powers of evaluators The evaluators have no power to enter binding orders of any kind. Within lim- its set by the court, they can fix the time and place of the evaluation session itself, and they are expected to report to the court if a party fails to submit a timely pre-session statement or to appear at the session, but they have no other powers. Moreover, the General Order that estab- lishes this program prohibits the evalua- tors from communicating with the court or anyone else anything about what transpired at the session. In fact, the General Order (No. 26) casts a cloak of confidentiality over everything said or done at each E.N.E. session. No partici- pant may disclose even the questions posed by the evaluator, to say nothing of her assessments and valuation. And dur- ing the first experimental stages of the program they will not share with the court the recommendations they make to the parties about discovery. The purpose of this restriction on communication with the court is to encourage counsel and litigants to be open at the session and to reduce incentives to posture for procedural advantage. On the other hand, we believe the court might find useful the evaluator's procedural suggestions-especially since they will be formulated after the evalua- tor has learned much more about the case than a judicial officer normally would at this early stage. Thus the embargo on communication about dis- covery plans between evaluator and court represents a lost opportunity for the court to benefit from the evaluator's knowledge. For this reason, at a subse- quent stage in the life of this project the court will re-examine this policy and consider permitting the evaluator to rec- ommend to the assigned judge that the parties conduct specified key discovery before they launch their full prepara- tions for trial. Under no circumstances, however, would the evaluator's opinions about parties' positions or his valuation of the case be disclosed to the court. Incentives for preparation Severa l aspects of the experimen tal proce- dure offer counsel inducements to pre- pare well for and attempt to make con- structive use of the early evaluation session. One incentive stems from the fact that at the evaluation session counsel are required to perform in front of their cli- ents. The desire to look good in. front of the person paying the bills, and to appear to be in control of the situation, should inspire counsel to do basic investigative homework and to come to the session ready to make a substantial presentation. Another reason to prepare well for the evaluation session is the knowledge that the evaluator's assessments of evidence and arguments, and his or her valuation of the case, might well have a substantial effect on the settlement negotiations that take place later. The evaluator's reac- tions will remain in the minds of coun- sel and clients; they will be useful to and used by at least one of the parties. Law- yers will foresee that fact and want those assessments to be as favorable to their client as possible. 282 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022235
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tion assume that it will produce substan- tial cost savings for litigants. Our re- search suggests that such savings are possible, but whether they are realized depends on the behavior of lawyers in response to arbitration. Individual plaintiffs' costs to litigate generally have three components: the value of their own time spent on the process, lawyers' fees, and expert witness and other direct expenses. In Pittsburgh and New Jersey we found that litigants on average spent 1 to lb days preparing for and participating in arbitration hear- ings. As might be expected given liberal evidentiary requirements, they spent less than $50 on expert witness fees and other direct expenses. Lawyers' fees were by far the largest component of litigants' expenses. Plain- tiffs in Pittsburgh either had a tradi- tional contingent fee arrangement with their lawyer (typically paying one-third the amount obtained in arbitration or settlement) or paid a flat fee to the lawyer (usual1y;250) for preparing the case and representing them at the hearing. Law- yers offering flat fee arrangements to clients usually conducted a high volume arbitration practice, representing several different clients at hearings in the course of a single morning. This type of prac- tice was made possible by the brief dura- tion of the hearings (45 minutes on aver- age) and tightly-administered hearing schedule. Efficient use of attorney time was also reflected in hourly rate defense costs of approximately $400 per arbi- trated case. In California and New Jersey, on the other hand, most plaintiff and defense lawyers have apparently not changed their billing practices as a result of arbi- tration.'Y Thus, any cost savings due to the streamlined arbitration procedure may be passed on to defendants, who are usually billed on an hourly rate basis, but not to plaintiffs who retain lawyers on a contingent fee basis.ts Even if fee arrangements are not sub- 12. It may be that volume arbitration practices of the sort we observed in Pittsburgh take many years to develop. 13. Insurance company representatives frequently assert that lengthy court calendars increase their transaction costs for small cases. If arbitration reduces time to disposition for these cases, these defendants may obtain additional cost savings as a result. 14. In many jurisdictions, plaintiff lawyerscharge a somewhat lower contingent fee for settling a case rather than trying it, for example, 33 per cent com- stantially revised litigants on both sides should save when their cases are arbi- trated rather than tried, because they will generally spend less of their own time in arbitration than at trial, and they will pay less in expert witness fees and other direct expenses. In the absence of arbitra- tion programs, however, most civil money damage suits are not tried, but settled. The difference between litigants' costs to arbitrate cases and their costs to settle these cases is not yet known. t' Cur- rent ICJ research comparing litigants' outcomes when different modes of dis- position are used may shed some light on this question. Access to justice When considering the adoption of court- annexed arbitration programs, some pol- icymakers assume that litigants must benefit from the provision of a rapid, inexpensive form of dispute resolution. Others, however, are concerned that arbi- tration, with its abbreviated procedures and rapidly decided outcomes, will pro- vide "second-class" justice. Our study of court arbitration in Pittsburgh systemat- ically examined what litigants obtain from the program and how they feel about it. We investigated the pattern of program usage, the distribution of arbi- tration awards, and the role of the ap- peals process. We also measured litigants' satisfaction with arbitration, and, in par- ticular, their views of the fairness of the arbitration procedure. More recently, we have been able to replicate some of these analyses among New Jersey and Bucks County litigants. Based on the results of these analyses, we have concluded that court=adminis- tered arbitration delivers generally ac- ceptable outcomes and is viewed by most individual litigants as a fair way of resolving civil disputes. Attorneys some- times demur at court arbitration's depar- ture from traditional trial norms, but most view arbitration as an acceptable procedure for resolving smaller civil pared to 40 per cent. In California and perhaps elsewhere plaintiff lawyers may treat the arbitra- tion hearing as a trial, charging the same percen- tage of the amount won if a case is arbitrated as they would if it had been tried. Since many cases that reach arbitration hearings formerly would have been settled, plaintiffs could actually be paying increased fees with the advent of arbitration. Of course, if outcomes at arbitration are significantly better for plaintiffs then plaintiffs might neverthe- less obtain a net benefit. damage suits. Program usage. In Pittsburgh, we found that the program was used by a diverse set of litigants, with a broad range of disputes involving money. Arbi- trated cases included consumer disputes (sometimes brought by the consumer, sometimes brought by a business person seeking payment), contract disputes, automobile and other property damage cases, and personal injury cases. The amount of money involved in these cases was generally less than $5000. (At the time of our study the j urisdictional limit in Pittsburgh was $10,000.) The types of disputants included private citizens, small and large businesses, and public agencies. Our Bucks County sample was limited to personal injury cases, although the program handles all money damage suits worth $20,000 or less. Preliminary data analyses in Bucks indicate that arbi- tration litigants are a cross-section of that county's population. Case outcomes. About 80 per cent of the Pittsburgh plaintiffs whose cases we sampled obtained some amount of com- pensation from the arbitrators. Burling- ton County, New Jersey pilot program data indicate a similarly high level of plaintiff victories. Of course, in both Pittsburgh and Burlington many plain- tiffs obtained lower awards than the amount they originally claimed. In Pitts- burgh, there was some variation in the relative success of plaintiffs (i.e. award amount compared to prayer) but we could find no evidence that any particu- lar class of litigants or suits is disadvan- taged by arbitration. The only exception in this finding regards pro se litigants: surprisingly numerous in Pittsburgh, these litigants appeared to be systemati- cally disadvantaged when they faced represented opponents. Outcomes of appeals. About 25 per cent of the arbitrated cases in our Pitts- burgh sample were appealed, but most of the appealed cases were settled with- out further court intervention. After ex- amining the outcomes of settlement and trial after appeal, we concluded that the appeal mechanism serves its intended purpose as a corrective device for indi- vidual arbitration errors or misjudg- ments, while preserving the pattern of outcomes delivered by the arbitrators. We also concluded that the costs of appealing were rarely worth the mone- TITX 0022228 275
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trial probably would feel considerable reluctance, early in the case, to be as spe- cific and candid in assessing parties' positions as the neutral evaluator is expected to be. Moreover, parties and counsel might be more open in their discussions of the case with a private lawyer who will have no power over the course of the litiga- tion than they would be with a judge or magistrate.s Parties might be less fearful and less formal in the presence of the private evaluator, more willing to com- municate candidly, and more flexible. An additional factor favoring use of private attorneys in this role is that some judges and magistrates have less recent litigation experience of the kind that is required of the lawyers who serve as evaluators. In selecting evaluators the court applies three principal criteria: reputation for good judgment and fair- ness, experience in litigation, and, to the extent possible, expertise in the subject area that is at the center of the lawsuit in which the master will serve. Subject-area expertise can be important and is not always available from a judge or magis- trate. A private litigator who really knows a particular field can cut quickly to the center of things and can reliably assess parties' contentions and evidence. Such a litigator also is in a peculiarly good position to identify the kinds of discovery or motions that will move the case efficiently into a posture conducive to serious settlement negotiations. Special masters Perhaps nothing is more critical to the success of this program than the quality of the people who serve as evaluators. How much their opinions mean to the parties, how helpful their advice is about discovery, and how significantly they can improve the parties' communica- tion will be determined by how much they are respected. Thus it is crucial that the lawyers who are appointed to serve as evaluators be thoroughly experienced in civil litigation and enjoy handsome rep- utations for the quality of their work and the evenness of their temperament. The court also may attempt to enlist law professors and retired j udges to serve as evaluators, especially in cases where parties challenge the capacity of private counsel to form neutral judgments. And when a suit involves an area in which the local bar is perceived as divided along party lines (i.e., most attorneys are iden- tified with plaintiffs or with defendants) it may be necessary to appoint evaluators who practice in fields other than those that are the subject of the litigation. For the initial experimental stages of the program in the Northern District of California the court is hand-picking the lawyers who serve as evaluators. In so doing the court draws on its experience with members of its bar and accepts nominations from its task force. Nor- mally the parties will not select the per- son who will be the evaluator in their case, but they may interpose any objec- tions they have to the person chosen by the court (e.g., a party might believe that the court's appointee would have a con- flict of interest in a particular case). The court is establishing a program to train the lawyers in the skills necessary to serve effectively as evaluators. During the period the court is evaluat- ing how well this procedure works and trying to identify the kinds of cases for which it is appropriate, litigants will not be charged a fee for participation, and the evaluators will not be compen- sated for their service. Based on expe- riences in other jurisdictions, such as the Western District of Washington, the court is confident that it will have no trouble finding highly qualified lawyers to volunteer for this potentially signifi- cant work. If initial experiments demonstrate that the early neutral evaluation procedure is beneficial, and thus the program is ex- tended into the future, we feel that the masters should be paid for their services, that the fee should be more than a token sum, and that except in extraordinary situations it should be borne equally by all the litigants (the court would waive the fee for impecunious parties). There are several reasons why it is important that the court require the parties to pay a fee. One is that it is the parties who will benefit from the service. Parties who use the evaluation procedure intelligently should be able to reduce their overall lit- igation expenses. Moreover, we believe the parties will take the opportunity this program represents more seriously, and get more out of it, if they pay for it. If they pay, they will have made an investment in the process and will have an additional incentive to make it productive. As impor- tant, by compelling parties to pay the court makes a symbolic statement to them about its confidence in the poten- tial utility of the procedure. The fee, in other words, symbolizes the court's view that this procedure, if properly used, can make a valuable contribution to the overall cost effectiveness of litigation. .Making the fee a meaningful sum also will improve the court's ability to con- tinue to attract high quality lawyers to serve as evaluators, and will improve the likelihood that those who are appointed will perform their duties conscientiously. We also believe that the fee should be fixed on a per case rather than a per hour basis. A per case fee will give evaluators an incentive to work efficiently and will remove any temptation some might feel to "elaborate" their involvement in order to increase their compensation. Voluntary participation? If the principal purpose of the early neu- tral evaluation session were to negotiate settlement, it might make sense to con- fine the program to cases in which all parties volunteer to participate. The primary objective of the procedure des- cribed in these pages, however, is not immediate settlement. Most cases will not settle at such an early conference. The primary purposes of this pro- gram are to promote early, efficient, and meaningful communication about dis- putes and to move parties and counsel to confront early and assess realistically their situations. The lawyers and parties who would volunteer to participate in such an exercise are the least likely to need it. It is the lawyers andd litigants who are not in the habit of communicat- ing directly with opponents, or who are not inclined to come to terms early and realistically with their litigation situa- tion, who are likely to benefit most from the session with the evaluator. Moreover, findings recently published by the ABA's Action Commission to Reduce Court Costs and Delay show that when use of new procedures designed to expedite 6. Id., at 139, where the author reports that 64 per cent of the responding attorneys indicate that they are "likely to be more open in settlement dis- cussions with a judge who will not preside at trial than with the judge slated to preside at trial." In the Northern District of California, the most populous and urbanized of the four study districts, the percen- tage of responding litigators who say they are likely to be more open with someone other than the assigned judge climbs to 80 per cent 284 Judicature Volume 69, Number 5 February-March, 1986 TITx 0022237
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tion and that would: • encourage each party, at the outset, to confront and analyze its own situation in the suit; • provide each litigant and lawyer with an opportunity to hear the other side present its case; • help the parties isolate the (enter of their dispute and identify the factual and legal matters which will not be seriously contested; • help parties develop an approach to discovery that focuses immediately on the key issues and that would disclose promptly the key evidence; • offer all counsel and litigants a confi- dential, frank, thoughtful assessment of the relative strengths of the parties' posi- tions and of the overall value of the case; • a f ter receiving the neutral assessment, provide the parties with an early op- portunity to try to negotiate settlement. The lawyers on the task force believe that there are many cases in which enough can be known in the early stages of the pretrial period to make an early evaluation session useful. In some in- stances parties are in a position, near the time suit is filed, to learn a great deal about their case without going through formal discovery. Often a modest but prompt investigative effort can disclose the basic information necessary to de- velop the essential outlines of the posi- tion the party will take in the suit. Thus the committee believes there are significant numbers of cases in which parties can understand their situations earlier and better than they would if they relied on the momentum of conventional case development practices. The com- mittee also assumes that there are some cases that cannot be developed suffi- ciently to make an early evaluation meaningful. But even these cases might well benefit from an early session in which an experienced, impartial third person systematically examines the par- ties' situations and offers advice about how to move the case as expeditiously as possible into a posture conducive to serious settlement negotiations. These, then, are the goals and assump- tions that underlie the early neutral evalu- ation program described in the sections that follow. Before turning to the details of the- new procedure we should point out that the district court in northern California is launching this program on an experimental basis. During the sum- mer and fall of 1985 the procedure was pre-tested on 10 different kinds of cases. The results were encouraging.t Parties and lawyers generally felt that going through the procedure was well worth the effort. In fact, most of the people whose cases were exposed to the program valued it sufficiently to say they would be willing to pay for the service if the court were not providing it at no charge. The court currently is launching a broader based experiment that is expected to involve about 100 cases over a one year period.z By exposing a wide range of civil matters to this procedure, the court hopes to begin learning which kinds of cases are most likely to benefit from the early neu- tral evaluation sessions. If the experience with the first substantial group of cases is sufficiently productive, the court will expand the program. The heart of the program The central feature of the experimental procedure is a con f idential two hour case evaluation session that takes place early in the life of the litigation. The session is hosted by a neutral, experienced, highly respected private lawyer who is ap- pointed by the court under its inherent power to appoint special masters. The court requires the parties themselves, accompanied by counsel, to attend the session (on a showing that attendance l. The court has enlisted the services of Profes- sor David I. Levine, Hastings College of the Law, University of California, San Francisco, to conduct an independent analysis of the effects and value of the Early Neutral Evaluation procedure. Professor Levine has observed several E.N.E. sessions and has interviewed all the participants (evaluators, parties, lawyers) in the cases that have completed the pro- gram. The generalizations in the text are based on his preliminary reports to the court. The court is deeply indebted to the National Institute for Dis- pute Resolution, in Washington, D.C., for a grant that is supporting Professor Levine's analysis of this experimental program. 2. The court hopes that this experiment also wil l involve two sets of control group cases. One set would consist of cases that are sent through the court-annexed arbitration program. The second set of cases would be involved in neither the arbitration nor the early neutral evaluation programs. Instead, the cases in this second group would be managed by the judges to whom they are assigned in the same way those judges manage their other cases. Profes- sor Levine would then be in a position to begin assessing the relative effectiveness of these three different approaches to expediting dispute resolu- tion. 3. Federal District Courts in the Western District of Washington, the Southern District of New York, and the District of Connecticut have experimented with the use of private lawyers to host settlement discussions, to facilitate communication between parties, and/or to conduct pretrial conferences. In some cases in Washington and New York the pri- vate attorney-special master has gotten involved 280 Judicature Volume 69, Number 5 February-March, 1986 would impose an undue hardship, the court permits parties to participate by telephone conference call). At the session there are four major orders of business: • Each party makes a 15 to 30 minute presentation of its position; • the evaluator works with counsel to reduce the scope of the dispute by identi- fying areas of agreement and by urging the lawyers to put tenuous theories on the back burner until settlement possi- bilities are thoroughly explored; • the evaluator candidly assesses the strengths and weaknesses of arguments and evidence and offers a valuation of the case (e.g., by estimating the likeli- hood of liability and the dollar range of damages); • the evaluator helps the litigants de- vise a plan for sharing information and.i or conducting discovery that will pos- ture the case for serious settlement nego- tiations as expeditiously as possible. Early, frank, and respect-worthy feed- back about essential matters, and help de- vising a sensible case development plan, are the core elements of this concept. After hearing the parties' positions and offering her assessments based on the information the parties have shared with each other, the evaluator may con- sider exploring the possibility of reach- ing an early settlement. If the parties are amenable, the evaluator may caucus pri- relatively early, but in most instances the participa- tion by the neutral has not taken place until after most or all of the discovery has been completed. See, e.g., Bedlin and Nejelski, Unsettling issues about settling civil litigation, 68 JUDICATURE 9(1984); Cooley, Query: Could settlement masters help re- duce the cost of litigation and the workload of federal courts?, 68 JUDICATURE 59 (1984); Burdell, Settling Cases in the United States District Court for the Western District of Washington, 7 FEDERAL BAR ASSOCIATION NEWSLETTER (of the Western Dis- trict of Washington) l(1984); "Report of the Com- mitteeon Federal Courts Concerning the Volunteer Master Program in the Southern District of New York (January 21, 1981)," unpublished; Tegland, MEDIATION IN THE WESTERN DISTRICr OF WASHING- TON (Washington, D.C.: Federal Judicial Center, 1984). Court-annexed arbitration programs that use private lawyers as arbitrators have been estab- lished in the Northern District of California, the Eastern District of Pennsylvania, the District of Connecticut, and the Eastern District of Michigan. See Lind and Shapard, EVALUATION OF COURT- ANNEXED ARBITRATION IN THE FEDERAL DISTRICr COURTS (Washington, D.C.: Federal Judicial Cen- ter, revised September, 1983) and Shuart, Smith and Planet, Settling Cases in Detroit: An Examination of Wayne County's Mediation Program, 8 JUST. SYS. J. 307 (1983). All of these programs schedule the evaluation session to take place after discovery is substantially completed. Moreover, in the arbitration programs the private attorneys do not attempt to streamline, focus, or help counsel plan the development of the cases. TITX 0022233
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Program impact The listof contributions a well-run evalu- ation and case focusing session might make is lengthy. We do not expect each session to make meaningful contribu- tions in all of the ways we describe below, but there is reason to hope that many of these kinds of benefits will be realized in a healthy percentage of the caies. The program could move counsel and parties to do their basic investigative homework (as opposed to major formal discovery) substantially earlier than they otherwise might. The session also could provide a vehi- cle for meaningful communication be- tween the parties about the case (put real flesh on the pleadings bones): a cost-effec- tive device by which litigants can learn what their opponent's case really is all about. In some cases, the evaluation ses- sion will serve as an inexpensive early substitute for some formal discovery. And in other cases going through the evalua- tion will open channels of communica- tion between the parties that will lead to voluntary sharing of information, per- haps even joint fact-finding efforts. The process compels counsel and cli- ent to confront, early in the proceedings, a systematic presentation of their oppo- nent's position and to examine systemat- ically the strengths and weaknesses of their own case. This forced confronta- tion with their overall situation might inspire parties to make the difficult deci- sions about the case that they otherwise would postpone. The evaluator's assessnients could serve as a reality check for parties or law- yers: bringing some frivolous matters to an abrupt halt, or, short of that, funda- mentally altering some parties' expecta- tions. The mere prospect of a neutral and frank evaluation could induce some 4. Data produced in a recently completed survey that explores litigators' perceptions about some aspects of the settlement dynamic suggest that the vast majority of lawyers encounter the problem of the unreasonably recalcitrant client in less than 20 per cent of their cases. In fact, about 53 per cent of the lawyers surveyed report that it happens in less than 10 per cent of their cases that a client is reluc- tant, or unwilling, to accept a settlement offer that counsel thinks is reasonable. See Brazil, SErrLING CIVIL SUITS: LITIGATORS' VIEWS ABOUT APPROPRI- ATE ROLES AND EFFECTIVE TECHNIQUES FOR FED- ERAL JUDGES, 99-101 (Chicago: American Bar Asso- ciation, Lawyers' Conference and National Confer- ence of Federal Trial Judges of the Judicial Administration Division,1985). See also Brazil, Set- tlingCivil Cases: WhatLatuyers Want from Judges, 23 JUDGES' J. 14, 17 (1984). 5. See Brazil, Settling Civil Suits, supra n. 4, at 153. parties to dismiss their claims or to make the kind of offers that could result in prompt settlement. The process increases client involve- ment in lawsuits and in making basic decisions about how litigation is han- dled. In some situations clients feel alie- nated from the litigation process-cut off from it and bewildered and intimi- dated. Having clients attend the evalua- tion sessions can make them feel more a part of the process and can educate them about their situation and their options. The evaluation sessions also can be used to give clients an opportunity for cathar- sis. Sometimes being given a chance to get something off his chest can be very important to a litigant. Getting the story told to a neutral figure can remove one obstacle to productive settlement discus- sions. There also may be cases in which clients could serve as important sources of economic discipline and common sense for their lawyers if they had a more meaningful opportunity to assess the situation at the outset. The early evalua- tion session gives a client some capacity to review the decisions being made by his lawyer. In other cases the evaluator's assess- ments could help attorneys with unreal- istic clients. Occasionally clients have unrealistic expectations about litigation (both its probable outcome and its bur- dens). And, occasionally, lawyers hired by such clients have difficulty dislodg- ing those expectations.' Frank talk from a senior, neutral litigator could reduce this problem. The session could reduce the scope of the dispute and focus discovery. The early conference could produce fact and law stipulations. The evaluator's assess- ments could persuade parties to drop (at least for the initial, settlement-oriented stage of discovery) tenuous causes of action or defenses which could justify, theoretically, expansive and ultimately unproductive discovery. The evaluator can draw on his or her experience to help the parties fashion a "lean and muscu- lar" discovery plan, i.e., a plan that focuses at the outset on the central, potentially dispositive data. The neutral valuation of the case could provide a "hub" to help move and center subsequent settlement negotiations. Finally, the evaluator could introduce a fresh, creative perspective to the litiga- tion, helping parties rethink ~)r recast their objectives and search for alterna- tive solutions to their problems. For example, the evaluator might have seen cases where mergers or buy-outs worked as more sensible solutions than combat; he or she could explain the advantages to the parties and show how this kind of solution can represent a net gain for both sides. In other words, the expe- rienced third party could serve not only as evaluator but also as wise counselor or mediator, defusing emotions and bring- ing new ideas to the interaction between the parties. No one, of course, expects all of these kinds of benefits to flow from the early neutral evaluation session in every case. The design of the program, however, makes these kinds of contributions pos- sible. By experimenting with this proce- dure in a wide range of cases and situa- tions we hope to begin identifying the circumstances in which the evaluation exercise is likely to be sufficiently pro- ductive to warrant the effort. Why use private attorneys? There are several reasons for believing that experienced private attorneys are better situated than judges or magis- trates to perform some of the functions envisioned here for the early neutral evaluator. One is the time required for this procedure. The evaluator usually must commit three or four hours per case to this process (in more complex mat- ters, the time commitment can be even greater). Judges and magistrates simply cannot find that many hours to devote to the early development of most of the civil matters assigned to them. A second reason for using private attor- neys in this role is that it requires the neutral person to critique fully and frankly each litigant's position, and to make as dollar-specific a valuation of the case as possible. Many people believe it is improper for the judge or magistrate to whom a case is assigned to express such opinions, especially early in the life of the case. In a recent ABA survey of federal court litigators, for example, 65 per cent said it would be improper for the assigned judge, during a settlement conference in a non-jury matter, to sug- gest to the parties a dollar range of a reasonable settlement.5 Even judges or magistrates not assigned to the case for TITX 0022236 283
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Can court-related alternatives improve our dispute resolution system? by Maurice Rosenberg The alternative dispute resolution pic- ture is a bit of a Rorschach inkblot. One gives it form and sense according to one's own perspective and experience in dis- pute-resolving. My experience has been mainly with courts and court-connected devices, and that probably shapes my perception of the dispute-resolution uni- verse. With that confessed, let me report how I view the inkblot. To start, I will narrow the lens to focus on the part of the universe that deals with legal disputes. That excludes many very substantial controversies-for ex- ample, between those who favor and those who oppose nuclear disarmament; between parents and their 15-year-old daughter about her life-style, smoking and friends; between stockholders who favor a.plan of reorganization and those who oppose it; between Billy Martin and George Steinbrenner or whomever else; and so on. Of course, the realm of "legal" dis- putes is not exactly an underpopulated land. There were over a dozen million of them in the courts last year. Millions more were never brought to court. Mom over, the class of legat disputer is`verr much subject toopett, asthel•awyers saF, 5st~ are inasmuch as legislat! constantly recvgn ~es oE entitlements and en~il~'std ones: Let me make clear,tlt6woift that I do not see the basic probleesasa quantity- control challenge;y--a neeelx to save, the courts from capsizing under'oceam=af lawsuits. Rathen it is to spare the citi- zenry avoidable stress, excessive expens4 inappropriate processes,. inadequate remedies- and inaccessible institution& Robert McKay has put the+quality point well, when he reported that a few years ago "it became apparent to, me{.'... that the litigation process waa being stretched out of shape by the inclusion in its work- load of many types of cases-even non- ture. It is important to try to identify cases-that not only were a burden, but these values so that hoped-for reforms were not even appropriately located in will stand a better chance of succeeding. the courts."' Most of the values can be best appre- Today, as in the past, we do have a hended by considering them in the com system of handling disputes that rests on text of available approaches and instru- legal entitlements. The system comprises ments for improving the system. the various processes and mechanisms all of us have been hearing about. They range from negotiation and mediation to rent-a-judge plans, mini-trials, admin- istrative agency processes, and ombuds- men. They include, also, the courts, arbitrators and many other agencies. Together these mechanisms comprise a dispute resolution system, however un- systematic it may be. The current ferment is essentially about improving the system we have- although some of the more enthusiastic voices we hear try to picture the altema• tives movement as a brand new religion. In saying that I am by no means suggest- ing that only tinkering and fine-tuning are needed. By improving the system I meaa we should be prepared to make major changes and~ cream new mechs~ nismx-Forcertaitfly there is today a near urgesty to revamp the systehr so, it will Routes to improvement Basically there are three routes by which to improve the dispute resolution sys- tem: changing the law, channeling dis- putes to non-adjudicative tribunals, and using alternatives as court-related mech- anisms. The premise behind changing the law, substantively, procedurally or both, is that many disputes should be prevented or aborted when this can be accomp- lished by fair and reasonable means without perpetrating or perpetuating injustice. Substantively this can be done by making a matter legally incontesta- ble, either on the claiming side or on the defending side. It can be done proced'u- rally by batriag judicial or other review of rejerted''claims: Lxamples arer - . Statutea abolishing the-right of,aer• tion ftx^lm each of prcurtfse to marry, alL6 data bettewjoh.vitlt dispxmresoludcat naticma~ollaffeetiiit*adis,tterjr etc.- --=rFie,, Bi&inevitstblrvt+r shaffl*lltiiltlh*bte "llearr-y"Ot"attiomc. andreraodelingwhatwehave:AtyIpbt rStatdiesatioi6tlingth,edefettseofoor it this way: Wour rich Uncle suddeszlt tnbutorpneglfgenarortntpcoinghabtlitt bequeathed'us a billiondollamto set up withottt'fauifi aa in no-fault divorae: a branti"new dispute resoltztim systeot, • Statuoerlarrirtg judicial review of m would' we produce ow vastlX ;diffem jectedtciaitns by veterans for disabilituesm from what we have? Wbtsl&tht-pt+apor `;. 'I'He4eeond bask way° is to channet non- ' .. tionoflegaldisptwreaetilvedb0t&9v&,- see1sc~ed te &-pni'mof . ds*usesi to adl~' atiotr and mediation¢ increasc tenfoW dkadft tn'bsualw _ (that ia, away fiam and the fraction resolved GyJudgm an* obttrtitiw.ag8rj%.r-ies exem'sing quasi-ju4W arbitrators shrink correspoadftW° cialpawrm)k'Fftepsernisehereiathat6w WouldF''we invent some meehanimewos< thosm classes of disputes there are modew process havingno reoognizablerelatiot06 of resQtuion that are preferable tocntsr.w> ship ta-existing devices?° I dontt believrs _ , so; for, tetisons- thati'eftetvA.4hiev int< bedded deelrwithirf'our society andrul~- [tesolvhom4oTx=lusmurrar ,I. t9 ti9ea; 254 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022207
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trial. To expedite selection of the sum- mary jury, the jury commissioner pro- vides the prospective jurors with a ques- tionnaire that normally elicits the fol- lowing information: juror's name and occupation; juror's marital status; jur- or's spouse's name and occupation; names and ages of juror's children: juror's prior knowledge of the parties, counsel or facts of the case; and prejudi- cial attitudes peculiar to the case at hand. After the juror profile forms have been completed, copies are made and distrib- uted to the presiding judicial officer and counsel. The responses of the prospective j urors give the court and counsel an intro- duction to the panel and prepare them to proceed quickly with their challenges. In certain cases involving complex is- sues or numerous parties, a more devel- oped inquiry is made of the potential jurors. Examples of these cases are the mass tort litigation involving asbestos-re- lated diseases, antitrust and patent litiga- tion, and other cases of national public interest. One such example is a copyright infringement claim involving the fic- tional character "Strawberry Shortcake," who is easily recognized by millions. In these cases it is far more efficient to formulate and provide a comprehensive juror profile questionnaire to the poten- tial jurors well in advance of the date of the summary jury trial. When the ques- tionnaire is returned, it is made available to counsel so they can eliminate imme- diately for cause those jurors who oth- erwise would have to appear on the day of the summary jury trial and then be excused. Such advanced exercise of chal- lenges for cause translates into several additional efficiencies: reducing costs associated with jury selection, facilitat- ing selection of a well-qualified and impartial jury, and helping counsel to be well-prepared for their challenges. The sum total of these economies is an expe- dited jury selection process that is in keeping with the abbreviated nature of summary jury trial. While the potential jurors are com- pleting their questionnaires, the presid- ing judicial officer meets with counsel. This meeting gives the court and the parties an opportunity to review the case in an environment that is very similar to that existing just prior to a regular civil jury trial. The same factors that often cause settlement of cases immediately prior toa regular trial will often produce a.settlement prior to the summary jury trial proceeding. In order for the meeting to be of bene- fit, it is important for counsel to have their cases in a state of complete trial readiness. Each party should be required to file a trial memorandum, proposed voir dire questions, and proposed jury instructions. If an extensive presentation is anticipated, the court may also require the parties to submit exhibit lists and lists of witnesses whose testimony will be summarized during the proceeding. Dur- ing this meeting, counsel are required to present all procedural and evidentiary questions which foreseeably will arise during the course of the summary jury trial. Resolution of these questions dur- ing this meeting minimizes the need for objections during the actual summary jury trial and thus contributes to the flowing character of the proceeding. Although some may object that the preparation for summary jury trial ap- proaches the kind of preparation neces- sary for trial itself, it must be remem- bered that the summary jury trial process is only intended for cases that have not been settled through other, more tradi- tional, means. The litigants should be reminded that the preparation time and expense for the summary j ury trial is not "wasted," as it is the same type of prepa- ration necessary to prepare for trial. It should be explained to the parties that they benefit economically from the pro- ceeding in two ways: first, if the matter settles, they avoid the substantial expense of paying their attorney (and expert wit- nesses) to appear at a lengthy trial pro- ceeding; second, they save themselves whatever economic and emotional loss they would suffer from having to attend the full trial proceeding. The court should also explain the substantial sav- ing of time and money for the judicial system as a whole. Summary jury trial format The format of a summary jury trial is very similar to that of a traditional civil jury trial. A judge or magistrate presides over the court, which is formally brought to order. Attendance of the parties with com- plete settlement authority is required. It is best if the judge who will try the case conducts the summary jury trial because, through presiding over the sum- marv jury trial, the judge will obtain a thorough understanding of the issues presented by the case and the strengths and weaknesses of each parties' position. The judge's participation in the sum- mary jury trial will also facilitate an open and frank discussion of the evi- dence during post-summary jury trial settlement negotiations. Because the jury remains the ultimate trier of fact, the outcome of a subsequent trial probably will not be affected by the participation of the judge who presided over the sum- mary jury trial. Indeed, the quality of the actual jury trial may be improved be- cause the judge will have become inti- mately acquainted with the legal issues posed by the case. As an alternative, the judge may de- cide to assign a summary jury trial to a magistrate, thereby freeing the judge to conduct traditional trials. This proce- dure can also be very effective, but it is important that the judge and the magis- trate communicate in detail about the case prior to the time that the magistrate assumes responsibility for the proceed- ing. The magistrate should have a thor- ough understanding of the issues posed by the case and the parties' settlement positions. If a magistrate conducts the summary jury trial, it is recommended that he or she participate with the judge in the post-summary jury trial settle- ment negotiations. The judge opens the summary jury trial with a few introductory remarks in which he or she introduces the trial par- ticipants and explains briefly what the case is about. The judge then explains the summary jury trial procedure to the jury. The judge normally states that the lawyers have reviewed all of the relevant materials and interviewed all of the wit- nesses and now have been asked to con- dense all of the evidence and present it to the jury in a narrative form. 'They are also told that the attomeys will be per- mitted to summarize both the evidence and legal arguments in support of their respective positions. The prospective j urors are advised that at the conclusion of the case they will be instructed on the applicable law and the use of the verdict form. They are further advised they are expected to consider the case just as seriously as they would if the case was presented to them in the conven- tional manner and that their verdict must 288 Judicature Volume 69, Number 5 February-rLlarch, 1986 TITX 0022241
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fee reimbursements from appellants are taken into account, this amount is re- duced even further. The average cost to process a case diverted to arbitration in Pittsburgh in 1982 was about $76 for each case assigned to the program, and about $175 for each case heard.7 Figure 2 compares the costs of process- ing arbitration cases to the costs of pro- cessing non-arbitration cases that re- main on the civil trial calendar. In the upper section of the figure, we see the cost differential between the average per case processing costs for California and Pittsburgh. In the lower section, we have broken ou t the costs of those cases "tried" (either by arbitrators or jury). These comparisons suggest that, overall, arbi- tration offers a three- to five-fold savings over traditional civil case processing. The difference in the average cost to "try" a case in arbitration and the aver- age cost to try a case before a jury is many times greater. The cost differentials shown in Figure 2 may be deceptive, however, if a substan- tial fraction of the arbitrated cases turn up on the trial calendar thereafter, as a result of de novo appeals. It is reasonable to assume that cost savings will be sub- stantial where appeal rates are low, and smaller or non-existent where they are high. (Indeed, one can imagine situa- tions in which arbitration programs would actually increase the net costs of processing civil cases.)" Across the country, de novo appeal rates vary substantially from program to program. In California, the rate of ap- peal has been running in the neighbor- hood of 50 per cent. In the older Pennsyl- vania programs it ranges between 15 per cent and 25 per cent of all cases heard, and some court administrators elsewhere report even lower appeal rates.9 But the majority of appealed cases in all juris- dictions settle without trial. In Califor- nia, a Judicial Council docket study in a sample of four Superior Courts found that the rate of trial after arbitration was about seven per cent.10 In Pittsburgh, the ICJ found that three-quarters of all cases that were appealed settled without trial.l1 It is an open question whether the costs to courts of disposing of these de novo appeals generally outweigh the savings attributable to arbitration. Expediting disposition. Success in ex- pediting cases through arbitration de- Rw- 2 corW..uM" a.. F .,>o...rw ~. (p.r «») .((.a.,~ All CUM CalenAareO Tr(e0 Ca.. Only Sourp: CaubmiaArWVMbnCo.lEr tlmatw, JuC1eW Cowttll o/ C./Narnit; At+uuN[roerliH.lYW DWbinnCaat EatImMN, KakY(k arMpobyn.CWtaOF "Crvk Junw.Bare. Couer Eva.• unuw soe Paouwq Ta,t C.ata. (Santa Monra. CA: Tna aana Corpurr tlen.,90. pends on formal program rules and in- formal implementation practices. When courts want to use arbitration to speed case disposition, when they have the resources available to process cases effi- ciently, when they are not unduly con- strained by statutory or other formal limits on the speed of disposition, and when attorneys cooperate in making the program work, arbitration can result in speedy case disposition. In California, we found that arbitra- tion's effectiveness in reducing time to disposition was constrained by the avail- ability of judge time to assess case value, by statutory requirements that estab- lished relatively lengthy time intervals for different stages of the process, by the practice of placing administrative con- trol over the hearing process in the arbi- trators' hands, and by the lack of court resources to monitor the arbitrators' per- formance in carrying out these responsi- bilities. As a result of these factors, we found that in some courts arbitration did little to expedite case resolution, while in others it increased time to disposition. Time to disposition by arbitration var- ied between nine months and more than three years. In Pittsburgh, on the other hand, the practice of scheduling cases for arbitra- tion at the time of filing, a policy of encouraging all active bar members, regardless of type or length of expe- Pith0ur8n CMiCa ul the CGurt AAminMVatian, 19/7 $wT, . Q ArE/trttor TMr°`°(~'~ ow(.+a, rience, to serve as arbitrators, and a cen- tralized form of program administration combine to expedite case processing. The average time to reach arbitration hearing in Pittsburgh is three months from the filing date; awards are decided immediately after the hearings and sent to the parties at the close of business each hearing day. Other Pennsylvania courts have achieved similar results: in Phila- delphia in recent years cases have reached arbitration hearings within eight months of filing. In Bucks County, cases are: heard within four months of the filingof a certificate of readiness. Whether speeding cases through arbi- tration actually reduces the time to dis- position for cases on the regular trial calendar is still an open question. The factors that affect time to disposition generally are so complex and so difficult to measure that there has yet to be an empirical analysis of the connection between expeditingarbitration cases and expediting regular jury trial cases. xedu«ngcow to utid.ntsr Some sup- porters of court-administered arbitra- 7. Cost infarrnation for 19K provided to the author by Mr. Charles Starneu, Allegheny County Court Adminiwaoim8. Henskr et al., supn n. 4, at 62-67. 9. In mou propaau, 25 to 50 per cent of the caea aiisigned to arbittatiwt aettle before the hemr ing date. Thu°, the per cent of appealt as a@actiatt of all ®.es aasiened to the penstam may be as little as 5 to 10 pa aent. 10.Supren.n,at9 11. Su¢ra n. 2, at 4& 274 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022227
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tnt,t < a~es hace been effe( tmel~presented i,tnd resohed) through the >umnlary juty trial process. Thus, the court should gen- erally assume that the longer the trial, the greater the potential value of the sum- mary jury proceeding. I-he psychological effect of"court- room cotnbat" is itnportarnt ~%ith re,gard to litigants N~ho are either too stubborn to see their opponent's point of view, or who feel that settlement would be an admission of weakness and would prefer to have their "day in court." Any trial, however long or short, exacts some sacri- fice or penalty from the litigants in the form of financial costs and emotional stress. Some litigants have the ability to handle that stress, others do not. The summary jury trial provides a forum in which the litigant can get a taste of the trial ahead and thereby more logically evaluate his or her position. Effective pre-trial conferencing is the best method for determining the suita- bility of a case for summary jury trial. The give and take between the parties at such a conference provides the judge with the soundest basis for assessing whether summary jury trial is in order. Ideally, after discussing the possibility of a summary j ury trial during the pre-trial conference, the parties will decide that use of summary jury trial is in their best interest. Such acceptance is desirable because it heightens the chances that the parties will accept the result of the sum- mary jury trial and settle their case. It is to be anticipated that certain par- ties will not readily consent to the use of summary jury trial. Whenever a judge initiates a procedure with which attor- neys are unfamiliar, objections from counsel are to be expected. When propos- ing the use of summary jury trial, a judge should, of course, be receptive to any objections counsel may raise and should determine whether the objections are well taken in light of the circum- stances of the case. However, if these objections are without merit the judge should not hestitate to direct the parties to proceed to summary jury trial. The bench and bar now recognize that the settlement process generally and alter- native methods of dispute resolution spe- cifically are integral components of the litigation process. In 1984 the Judicial Conference of the United States expressed this perspective by adopting a resolution favoring the experimental use of sum- tnary jury trial in potentially lengthy ci~ il jury trial cases. T he importance of the settlement process and the use of alternative methods of dispute resolution including summary jury trial has also been noted by Chief Justice Burger in his 1983, 1984, and 1985 Year End Reports on the Judiciary and by federal and state judges throughout the United States. Beyond the force of public and profes- sional acceptance, a judge may find authority for directing parties to partic- ipate in summary jury trial in the Fed- eral Rules of Civil Procedure as well as similar rules in effect in state courts. Rule 16 of the Federal Rules of Civil Procedure addresses the use of pretrial conferences, as well as other case man- agement devices, and contemplates the use of alternative methods of dispute resolution. Under Rule 16(b)(5) a district court may adopt a local rule specifically authorizing judges to order parties to participate in summary jury trials. Even in the absence of such a local rule, an individual judge may find authority for assigning a case to SJT either in the broad pretrial management provisions of Rule 16 or in the mandate of Rule 1 that the Rules be applied "to secure the j ust, speedy, and inexpensive determina- tion of every case." Finally, an individ- ual judge may draw on the inherent authority to manage the docket. The set- tlement process has become a core ele- ment of the judicial process. Federal and state judges are vested both explicitly and implicitly with the power to man- age their dockets with a view toward achieving settlements through the use of alternatives such as summary jury trial. Final pre-trial conference The decision whether a case should be sent to summary jury trial is normally made at the final pre-trial conference. After the assignment decision is made, the j udge determines whether the house- keeping details of a summary jury trial can be disposed of during that pre-trial conference, or whether the case requires one additional pre-trial conference to ready it for summary jury trial. Certain matters must be addressed at the conference preceding the summary jury trial. The judge should determine that discovery has been substantially completed. All motions relating to the merits of the caue should be resol%ed so that parties understand exactly how they will have to present their case at trial, and can shape their summary jury trial presentation to parallel most closely the presentation they expect to make at the time of trial. The judge should also take time at the pre-trial conference to set the limits for evidentiary presentation at the summary jury trial. The judge should hear objec- tions to the use of certain evidence and consider motions in limine. In gen.eral, the conference should be used by the judge to elicit problem areas concerning the materials that may be presented or opinions that may be expressed. The judge should not hesitate to make rul- ings on motions and to inform counsel as to what lines of summarization will be permitted and what areas will be ex- cluded. As a result of such conferencing, the actual presentations by counsel dttr- ing the summary jury trial are likely to flow without interruption. Additionally, the judge and counsel should engage in a dialogue on sum- mary jury trial technique. For those attorneys who are new to the procedure, it is worthwhile for the judge to explain the process in some detail and to review examples of techniques that attorneys have previously used effectively. It may be useful to distribute a written explana- tion of the process as a means of intro- ducing the attorneys and their clients to summary jury trial. The conference before the summary jury trial also provides an opportunity for intensive, traditional settlement ne- gotiations. The imminence of the sum- mary j ury trial brings to bear on the par- ties the same type of concerns experienced just prior to civil jury trial. The judge should remind the parties that their set- tlement positions will be unalterably affected by the advisory jury's verdict, because their demands will thereafter always be contrasted to the ultimate eva- luation of the jury. Final preparation The day of the summary j ury trial begins with the arrival of prospective jurors at the jury commissioner's office. If another judge is commencing a jury trial on the same day, the jurors who are called for that proceeding but not actually empa- nelled may be used in the summary jury TITX 0022240 287
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Tabl.1 Mandatory court-ann.xod arbitration programs Earliest date Jurisdiction Program title Authorization authorized Current scope State courts Alaska Arbitration of Small Claims State Law-A.S. 09 43.19o 1972 Arizona Arbitration of Claims State Law-A. R.S. 12-133 1974 California Judicial Arbitration State Law-C.C.P. 1141.10-32 1978 Connecticut Fact Finding and Arbitration State Law-Conn. Statutes 52-549N 1983 Delaware Compulsory Pretrial Arbitration Superior Court Rule 16(c) 1984 Illinois Mandatory Arbitration State Law-C.C.P. Ch. 110 Pert 10A 1985 Michigan Mediation Supreme Court Rule (except INkyne 1978 County Court): General Court Rule 318 Minnesota Judicial Arbitration State Law-Minn. Statutes 484.73 1984 Nevada Motor Mahicle Damage State Law-N.R.S. 38.215-245 1971 New Hampshire Actions Arbitration Compulsory Arbitration Supreme Court Rule, Temporary 1978 New Jersey Judicial Arbitration Rules of Compulsory Arbitration State Law-Laws of N.J. Ch.358 1983 New Mexico Supreme Court Rule 1984 New York Alternative Dispute Resolution by State Law 22 N.Y.C.R.R. Part 28 1970 North Carolina Arbitration Court-ordered Arbitration State Enabling Act 1985 Ohio Varies by county Local Judicial Rules- 1970 regon rbitration Program Hamilton County Rule 24 Stark County Rule 18 Cuyahoga County Rule 29 State Law-Ch. 670 Oregon Laws 983 Pennsylvania Compulsory Arbitration State Law-Pa. Con. Stat 1952 1Naahington Mandatory Arbitration of Civil Actions Ann. Title 42 7101 State Lew-R.C.W. Ch.7.06 1979 Federal district courts California-Northern Dist. Court-annexed Arbitration Local Rule-Rule 500 1978 Florida-Middle Diat. Court-annexed Arbitration Local Rule 1985 Michigan-Westem Dist. Court-annexed Arbitration Local Rule 1985 Missourl-Westem Dlst. Court-annexed Arbitration Local Rule 1985 New Jersey Court-annexed Arbitration Local Rule 1986 New York-Eastern Dist. Court-annexed Arbitration Local Rule 1985 North Carolina-Middle Dist. Court-annexed Arbitration Local Rule-Part VI Rules of Practice 1964 Oklahoma-Westem Dist. Court-annexed Arbitration and Procedure Local Rule 1965 Pennsyivania-Eastem Dist. Court-annexed Arbitration Local Rule•-Civil Procedure 8 1978 Texas-Westem Dlst. Court-annexed Arbitration Local Rule 1965 Never Implemented; jurisdictional limit too low to make program useful Operational in at least 2 counties including Phoenix and Tucson Operational in 15 counties with 10 or more judges and slowiy being adoptb in smaller courte Statewide implementation but far more. cases processed by fact-finding than by arbitration Program began statewide in mid-1a84 Rule drafting underway Operational in 28 of 55 circuit couns Experimental implementation in Hennepin County (Minneapolis) Very little application, but efforts are underway to launch an expanded voluntary arbitration program for aN civil damage caaes 2 counties (Merrimack, Rockingham) Statewide Implementation Awaiting funding Operational In 31 counties, Inctuding New York City Pilot program authorized in 3 distrkar '` Operational in approximately 15 oountly~,e inciuding Cleveland and Cinclnna8 Operational in 9 countles Operational in 53 countiea, including Philadelphia and Pittsburgli Operational in at least 3 counties (King,.,, Pieroe, Yakima) Ongoing program Operational Operationab Operational Operstional Program to commence by January 19~: Operational Operational Ongoing program Operational Source: Ebener, and Betancourt Carl-Anrraa.d Arbltraaorc The paaenal pleft.e (Santa Monica, CA: TM Rand Corporatlon, 1986); updated to January 1, 1986K grams have also expanded by extending their case jurisdiction: typically, the first arbitration program(s) within a state is established with a monetary jurisdic- tional limit in the neighborhood of $15,000; over time the limits are in- creased to $25,000°or more. In recent years, the initial jurisdictional limits of programs have been set higher, espe- cially in the federal district courts. Fig- ure 1 shows the change in monetary juris- dictional limits across courts from 1979 to 1985. Program objectives Whatever their historical origins, most court-administered arbitration programs now share the following objectives: • Reduce congestion on the civil trial calendar by diverting and disposing of cases through arbitration; • Reduce (or stabilize) court costs by reducing judicial time spent on the civil caseload; • Reduce time to disposition by pro- viding an expedited process for arbitra- tion-eligible cases and by removing these cases from the trial queue, thereby reduc- ing time to trial for other cases; • Reduce litigation costs for parties; • Improve access to court for diverse us,ers by reducing the time and expense required and by providing a simpler and, perhaps, fairer form of dispute resolution. Supporters of court-administered arbi- tration programs do not generally ex- pect to change case outcomes. Instead, the distribution of outcomes prevailing prior to establishing an arbitration pro- gram is frequently viewed as the bencli(~f mark for assessing arbitration's effeerdl equity, and a program is viewed as -" cessful if it does not perceptibly alterti'W_ distribution to the advantage or vantage of any of the major partici in the system. Evaluating effectiveness. As in the case of other "court refo: there has been no comprehensive at to evaluate court-administered ar tion programs' effectiveness in these objectives. During the pastY years, however, the ICJ has co evaluations of arbitration progrranss, California, Pittsburgh (Alleg County) and Bucks County, Pennsy nia, and Burlington and Union ties in New Jersey that shed considera 272 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022225
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he a true verdict based on the ek idrnce. They are f urther told that the proceeding will be completed in a single day and that their verdict wil l aid and assist the parties in resolving their dispute. Nothing more is said about the non-binding nature of the summary jury trial; nothing more need he said. .altliouali the jrirors <3re not misled to believe that the proceeding is equivalent to a binding jur}trial, the non-binding character of the proceeding is not emphasized. By adopting this bal- ance the judge may candidly explain the procedure without minimizing the ju- rors' responsibilities. Following the judge's introduction of the case to the prospective jurors, the j udge conducts a brief voir dire generally posing questions to the jury collectively. This process is expedited through the use of the completed j uror profile forms. The judge may make additional inquir- ies of the jury based on voir dire ques- tions proposed by the attorneys. Counsel are normally permitted to exercise chal- lenges for cause as well as peremptory challenges, although the number of chal- lenges should be limited, and counsel should be encouraged to accept the jurors as they find them, since prolonged voir dire will defeat the goal of conducting the summary jury trial efficiently. Jury selection is followed by the pre- sentations of counsel. Although the goal of expedited presentation is always kept in mind, the length and format of the proceeding may be adj usted to accommo- date the particular needs of the case. Counsel are usually given one hour each for the presentations. This period is usu- ally broken down so that plaintiff devotes approximately 45 mintues to its case in chief, followed by defendant being given a similar period for its main presenta- tion. A 15 minute period may then be given to the parties for their respective rebuttal and surrebuttal. The total time of the proceeding may be extended if the case involves particularly complex issues or more than two parties. It is recom- mended that each side give the jury a three-to-five minute overview of its case before the formal presentations. This will give the jury a "fix" on the whole case, obviating the need to wait a full hour before learning about the defense. Fair presentations As with all other aspects of the summary jury trial process, form should not be al- lowed to overcome substance. The judge must be especially sensitive to a common- sense notion of fairness. This concept must necessarily extend beyond technical questions of whether the summary by counsel of the evidence is accurate, to ~uch questions as whether the jutv is be- iug given a fairly accurate sense of the weight of the evidence. For example, if plaintiff can support a crucial fact in its case only through the rather questionable testimony of one witness, while defendant can present five independent witnesses to confirm the opposite, counsel for plain- tiff should not be able to speak of that fact as proof beyond refutation. Lawyers should also be reminded by the court of Disciplinary Rule 7-106 regarding trial conduct, in particular that portion of the disciplinary rule that forbids a lawyer from asserting personal knowledge of the facts in issue or per- sonal opinions as to the justness of a cause or the credibility of a witness. It is true that the effectiveness of the trial attorney as an advocate will have a marked effect upon the results of the summary jury proceeding; this is no less true, however, at the time of trial and is a factor that each party should be weigh- ing in evaluating the settlement value of the case. In making their presentations to the jury, counsel are limited to representa- tions based on evidence that would be admissible at trial. Although counsel are permitted to mingle representations of fact with legal arguments, considera- tions of responsibility and restraint must be observed. Counsel may only make fac- tual representations supportable by refer- ence to discovery materials. These mate- rials include depositions, stipulations, signed statements of witnesses, and an- swers to interrogatories or requests for admissions. Additionally, an attorney may make representations based on the assurance that he or she has personally spoken with a witness and is repeating what that witness stated. Discovery ma- terials may be read aloud but not at undue length. Counsel may submit these materials in full to the j ury for their con- sideration during deliberations. Each juror is provided a note pad and is per- mitted to take notes. Physical evidence, including docu- tnents, may be exhibited during a pres- entation and submitted for the jury's examination during deliberations. These exhibits may be marked for identifica- tion, but are returned to the appropriate party at the end of the proceeding. By virtue of the nature of the summary j ury trial, objections during the proceed- ing are not encouraged. However, in the event counsel overstep the bounds of propriety as to a material aspect of the case, an objection wil l be received and, if well taken, will be sustained and the j ury instructed appropriately. Jury deliberations At the conclusion of the summary jury trial presentations, the jury is given an abbreviated charge dealing primarily with the applicable substantive law and, to a lesser extent, with such boilerplate concepts as burden of proof and credi bil- ity. The jury is normally given a verdict form containing specific interrogatories, a general inquiry as to liability, and an inquiry as to the plaintiff's damages. The jurors are encouraged to return a unanimous verdict and are given ample time to reach such a consensus. How- ever, if, after diligent efforts, they are unable to return a unanimous verdict, each juror should be given a verdict form and should be instructed to return a separate verdict. These separate views will be of value to the lawyers in explor- ing settlement. Once the jury has been excused to deliberate, the court may engage the par- ties in settlement negotiations. These negotiations have a special sense of ur- gency in that they are conducted in the shadow of an imminent verdict. The negotiations are informed by the per- spectives gained through observation of the summary jury trial. When the jurors complete their delib- erations, the court receives their unani- mous verdict or individual verdicts. At this time, the judge, the attorneys, the parties, and the jurors engage in a dia- logue unique to summary jury trial. The j udge may ask the j urors a broad variety of questions ranging from the general rea- son for the decision to their perceptions of each party's presentation. Counsel may also inquire of the jurors both as to their perspectives on the merits of the case and their responses to the style of the at.tor- neys' presentations. This dialogue affords TITX 0022242 289
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processes-conceptual, intuitive, artistic, holistic, symbolic, emotional. The arbitrator deals largely with the objective; the mediator, the subjective. The arbitrator is generally a passive functionary who determines right or wrong; the mediator is generally an active functionary who attempts to move the parties to reconciliation and agree- ment, regardless of who or what is right or wrong. Because the role of the mediator in- volves instinctive reactions, intuition, keen interpersonal skills, the ability to perceive subtle psychological and be- havioral indicators, in addition to logic and rational thinking, it is much more difficult than the arbitrator's role to per- form effectively.5 It is fair to say that while most mediators can effectively per- form the arbitrator's function, the con- verse is not necessarily true. Besides these differences the two pro- cesses are generally employed to resolve two different types of disputes. Media- tion is used where there is a reasonable likelihood that the parties will be able to reach an agreement with the assistance of a neutral. Usually, mediation is used when parties will have an ongoing rela- tionship after resolution of the conflict. Arbitration, on the other hand, is gener- ally appropriate for use when two condi- tions exist: there is no reasonable likeli- hood of a negotiated settlement; and there will not be a continuing relation- ship after resolution 6 If the two processes are to be used in sequence, mediation occurs first, and if unsuccessful, resort is made to arbitra- tion.7 Viewed in terms of the judicial process, arbitration is comparable to a trial and mediation is akin to a judicial settlement conference: They are as dif- ferent as night and day.sThe differences can best be understood by discussing them in terms of the processes of arbitra- tion and mediation. The arbitration process Arbitration has had a long history in this country, going back to procedures. car- ried over into the Colonies from mercan- tile England. George Washington put an arbitration clause in his last will and testament to resolve disputes among his heirs. Abraham Lincoln urged lawyers to keep their clients out of court and himself arbitrated a boundary dispute between two farmers. Today, arbitration is being used more broadly for dispute settlement both in labor-management relations and in commerical transactions. Aside from its well-known use in resolv- ing labor disputes, arbitration is now becoming widely used to settle inter- company disputes in various industries, including textile, construction, life and casualty insurance, canning, livestock, air transport, grain and feed and securities.' Simply defined, arbitration is a process in which a dispute is submitted to a third party or neutral (or sometimes a panel of three arbitrators) to hear arguments, re- view evidence and render a decision.10 Court-annexed arbitration, a relatively new development, is a process in which judges refer civil suits to arbitrators to render prompt, non-binding decisions. If a particular decision is not accepted by a losing party, a trial de novo may be held in the court system. However, adverse decisions sometimes lead to further nego- tiation and pre-trial settlement.ll The arbitration process, court-annexed or otherwise, normally consists of six stages: initiation, preparation, prehear- ing conferences, hearing, decisionmak- ing, and award. Initiation. The initiation stage of arbi- tration consists of two sub-stages: initi- ating the proceeding, and selecting the arbitrator. An arbitration proceeding may be initiated either by: submission; "demand" or "notice;" or, in the case of a 5. As one American professional mediator put it, the mediator "has no science of navigation, no fund inheriteditom the experience of others. He isa solitary artist recognizing, at most, a few guiding stars and depending mainly on his personal power of divinati,on:" Meyer, Function of the Mediator in Collective Bargaining, 13 INDUS. & LAS. Rat.. Rev. 159 (1960). 6 In labor relations arbitrations, of course, con- dition (2) is normally not present. Labor disputes are generally divided into two ategories: rights disputes and interest disputes. Disputes as to "rights" involve the interpretation or application of existing laws, agreements or cuatomary prac- tices, disputes as to "interests" involve controver- sies over the formation of collective agreements or efforts to secure them where no such agreement is yet in existence. Elkouri and Elkouri, supra n. 3, at 47. 7. Because of ethical considerations, the arbitra- tor and mediator normally are different penons. It should also be noted that mediation is frequently effective when it is attempted, with the concurrence of the parties, during the course of an arbitration with a neutral other than the arbitrator serving as the mediator. Often the unfolding of the opponent's evidence during the course of arbitration lfads to a better appmiation oE the meria of their respective positions and hence aa atmosphere conducive to settlement discuasions. &'Fhe stark distinction between mediation and arbitration was well made by a professional media- tor who became chairman of the New York State court-annexed proceeding, court rule or court order. A submission must be signed by both parties and is used where there is no pre- vious agreement to arbitrate. It often names the arbitrator (or method of ap- pointment), contains considerable detail regarding the arbitrator's authority, the procedure to be used at the hearing, statement of the matter in dispute, the amount of money in controversy, the remedy sought and other matters. On the other hand, where the descrip- tion of a dispute is contained in an agreement and the parties have agreed in advance to arbitrate it, arbitration may be initiated unilaterally by one party serving upon the other a written "de- mand" or "notice" to arbitrate. However, even where an agreement contains a "demand" or "notice" arbi- tration clause, parties sometimes choose also to execute a submission after the dispute has materialized. In the court- annexed situation, a lawsuit is manda- torily referred to an arbitration track and the parties must select an arbitrator from a court-maintained roster or otherwise by mutual agreement.'Y Several types of tribunals and methods of selecting their membership are avail- able to parties who wish to arbitrate. Parties may choose between the use of a "temporary" or "permanent" arbitrator. They can also choose to have single or multiple arbitrators. Since success of the Mediation Board: "Mediation and arbitration... have conceptually nothing in common. The one [mediation] involves helping people to decide for themselves, the other involves helping people by deciding for them." Meyer, suprs n. 5, at 164, as quoted in Gullivel; DlsenTrs AND Nea(nAnoNS, A Caoss-cutTUUAt. Pssutrscnvd, 210 (New York: Arr demic Ptesd,1979). 9 Cooley, Arbitration as an Alternative to Fed- erat Litigation in the Seventh Circuit, Raro>tT or THa SuaCAM![1T'rttu oN At.TERNA17V6S To THS Paza- ENT FLDSaAL COuaT SYt'rst+, ScvaNTH Clacurr AD Hoc Conwrrru To STUtrr TH: HtGH CosT o.IaT- IGAT7oN, 2 (July 13, 197a). 10.. Paths to Justice: Msjor Publie Policy Issues of Dispute Resolution, RsroaT op THt Au Hoc PANSa.oN DtaruTe Rtiaot.trrtoN AND Pust.tc Pot.tcr, Appendix 2(wuhington, D.C.: National Institute for Dispute Resolution, Octobeg 1983). 11. Id. See also EvAt.uATtoN or CouaT-ANNCaa AaatTaATtoN IN 'rHUS FsnsaAt. Dtsnucr Coutrts (Washington, D.C.: Federal Judidal Center, 1961). 12. Cooley, supra n. 9, at 4, Elkouri and Elkouri. supra n. 3, at 183-86. Domke on Commericial Arbi- tratfon. §$14:00-14:05 (Rev. Ed.19B4). Arb}trators, if chosen from a list maintained by an arbitration organiation or court-maintained roster, are nor- mally compensated at the daily rate fixed by the organization or the court. Arbitrators selected inde- pendently by the parties are compensated at the daily or hourly rate at which they mutually agree. In such cases, the parties equally share the expense of the arbitrator'a services. 264 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022217
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ADR problems and prospects: looking to the future The alternative dispute resolution movement is at a critical turn in the road. What is needed now is a multi-pronged ef fort to expand understanding and promote increased involvement and support among all members of society. by Stephen B. Goldberg, Eric D. Green and Frank E.A. Sander I f alternative dispute resolution is an idea whose time has come, why has it not spread more rapidly and widely? Why is it that, although the users of neighborhood justice centers ap- pear satisfied with the process, many of these centers are starving for business? Why is there such an abundance of indi- viduals who want to provide mediation services, yet so few customers? In this arti- cle we will explore some of these ques- tions, as well as possible answers. It should be rtoted at the outset, however, that much of our discussion will be based on speculation, for there is a dearth of reliable data concerning alternative dis- pute resolution mechanisms. Indeed, the absence of such data is itself a deterrent to the use of alternative processes. Impediments to ADR use The reason most frequently given for the failure of disputants to make greater use of mediation and other alternatives to the courts is that they don't know about their existence. Despite increasing pub- licity given to alternatives, we suspect that if a Gallup poll were taken today asking what an individual should do if he had a dispute with his neighbor which they could not resolve, most citi- Lens would say "go to court" or "see your law}er," rather than "visit your local neighborhood justice center." The em- phasis given to courts and lawyers as the kn initial version of this article was presented by Pro[. Sander as a paper at a conference at Harvard 1- School in October 1982. Portions of the revised PaF)er are adapted from Goldberg, Green and Sdntler, DISPUTE RESOLUTION (Little, Brown and fi).. 1985), reviewed in this issue of JUDICATURE. 1. Pearson, Thoennes and Vanderkooi, The De- "<Inn to tlediate: Profiles of Individuals Who 4<<rpt and Reject the Opportunity to Mediate Con- rr,ted Chdd Custody and Visitation Issues, 6 J. DtvoacE 17 (1982). 2- See Cooley, Arbitration vs. Mediation: Ex- pl0 ntqg the Dif ferences, 69 JuntenrveE 263 (1986). paradigm dispute resolvers in American society is simply too pervasive to be eas- ily disturbed. One need only consider, by way of example, the consistent message conveyed by television- "People's Court," "Miller's Court" and "Perry Mason." We have no programs entitled Perry Mediator, Miller's Neighborhood Justice Center or People's Ombudsman. Even if potential disputants are aware of alternatives to the court and live in a community where such mechanisms are available, it is often difficult to locate them because they have not been pub- licly institutionalized. This segregation of alternatives from the judicial process also has other adverse consequences, such as the common absence of public funding, which sometimes requires dis- putants to pay for alternative dispute resolution services even as the judicial ones are provided free. More subtle dis- couragement derives from the distrust that often accompanies processes that are new and unfamiliar and that appear to be unaccompanied by the legal pro- tections that disputants have been taught over the years to value so highly. A re- lated deterrent may be the absence of mechanisms for ensuring high standards in the provision of alternatives. Psychological factors may also play a part in the gravitational pull of dispu- tants towards the courts. Over 100 years ago de Tocqueville commented on the tendency in the United States of most social problems to devolve eventually into legal problems. Many disputants go to court because they want to challenge their adversaries rather than come to terms with them. In twentieth century United States, lawsuits are the socially acceptable form of fighting. In addition to these general explana- tions, special considerations may come into play in particular sectors of the dis- puting universe. For example, large in- stitutional litigants may want a binding precedent to guide future disputes, which they can only get from a court. In bureaucratic organizations, such as the government, there is also the tendency towards following the path of least res- istance and minimal risk. This means taking the tried-and-true route of dump- ing the problem into the court's lap, rather than risking criticism that might come from what some superior views as an unwise settlement. The role of lawyers No discussion of the impediments to the use of alternative dispute resolution pro- cesses would be complete without con- sidering the role played by lawyers. For all the reasons alluded to above, most disputes that cannot be resolved by the disputants themselves are today pres- ented to lawyers. In most instances, the client will, we suspect, be unaware of the existence of alternative dispute resolu- tion processes. Hence, if such processes are to be utilized, it will typically be as a result of the lawyer's suggestion and encouragement.t The fact that alterna- tive dispute resolution processes have not been more widely used suggests that lawyers have not been actively encourag- ing their use. Why not? Initially, some of the factors that deter disputants from using alternative pro- cesses also deter lawyers from recommend- ing them. While lawyers are more likely than their clients to be aware of the exis- tence of alternatives, a surprising number of lawyers know very little about them, frequently confusing mediation and arbi- tration.z Hence, they are reluctant to sug- gest their use. The lack of institutionaliza- tion also has a deterrent effect. If a lawyer TITX 0022244 291
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an opportunity to gain an in-depth under- standing of the strengths and weaknesses of the parties' respective positions. The dialogue may serve as a springboard for meaningful settlement negotiations. A flexible procedure SummarN jury trial i: ciesigned to accom modate the needs and stvles of its various users. Judges and lawyers should not hesitate to modify the procedure as they may see fit to meet the demands of cases before them. The following alternatives are presented only by way of example: . The judge may permit certain key witnesses to testify in an abbreviated form, especially when a case turns upon the credibility of a witness's testimony on one or two key facts. . The summary jury trial might be converted into a "summary bench trial," conducted in front of a judge, other than the one assigned to the case, who serves as an independent sounding board for the positions of the party. . The parties may agree to conduct the summary jury trial at a very early stage of the proceedings, especially when most of the facts are not in dispute and the only real issue hindering settlement is jury perception of the amount of damages to be awarded. To facilitate such an early summary jury trial, the parties should adopt an accelerated and condensed dis- covery format with a view to preparing the case for summary jury trial within 60 to 90 days af ter the commencement of the action. Naturally, this will require vol- untary document production and coop- eration among counsel in initially taking only adversarial witness interviews rather than full-scale depositions. . A videotape presentation may effec- tively summarize a litigant's position as well as provide the jury with a view of the actual witnesses and evidence involved in the case. In a case before Judge Lee R. West of the United States District Court for the Western District of Oklahoma, an attorney prepared a videotape for view- ing by a summary jury in lieu of a live presentation. The f ilm provided an over- view of all aspects of the plaintiff's case in a personal injury action. It included an animated reconstruction of the accident scene, pictures showing the plaintiff's injuries and their effect on his everyday life, and pictures of each of the plaintiff's lay and expert witnesses with summariza- tions of their probable testimony dubbed in by the plaintiff's attorney. .Agreement to a binding result, or a binding result within a certain range; i.e., establishing a high-low range within which the case shall settle. The author of this article and Judge West, as well as Judge Richard A. Enslen of the United States District Court for the Western District of Michigan, have exchanged views and cooperatively adapted the summary jury trial process. Each of us has developed a variety of techniques to conform to the advocacy patterns of our respective districts. Nu- merous other federal and state judges have used the process successfully, each contributing distinctive approaches to meet the challenges posed by the diverse cases before them. Post-summary trial conference In some cases settlement is achieved dur- ing or immediately after the summary jury trial. Usually, however, several days to a month are required for the parties to assess and evaluate the summary jury trial verdict. In such cases post-summary jury trial conferencing between the judge and the attorneys should proceed on a continuing basis up to the time of trial. Such discussions will assure that settle- ment remains a top priority item and will prevent the experiences of the summary jury trial from growing stale. It is impor- tant that trial not be scheduled so closely upon the heels of the summary jury trial proceeding so as to cut short this process of assessment and negotiation. At the post-summary jury trial confer- ence, the subjective evaluations of the attorneys are no longer the primary focus of the discussions. Rather, the court should focus the parties upon the reality of the summary jury trial verdict and the perception of the cases indicated by the advisory jurors. It need hardly be said that the court can very effectively focus the parties' attention upon the fact that another jury would render a verdict similar to that of the advisory jury if the case were to go to trial. If a settlement is not achieved during the post-summary jury trial conference, the case is programed for a civil jury trial. The jury trial is normally sche- duled to occur approximately one month after the summary jury trial but may be continued if meaningful settlement ne- gotiations are ongoing. Conclusion The summary jury trial process is in- tended to foster settlements by forecast- ing civil jury trial verdicts. The use of summary jury trial is consistent with the traditional objective of the American adversary system of providing individu- als with a fair, equitable, and inexpen- sive means of resolving their disputes. Summary jury trial may even provide a tool for advaruing our traditional sys- tem by relieving it of the unnecessary costs and burdens involved in using civil jury trials to resolve controversies that can be settled justly through far less expensive and time-consuming proce- dures. This new approach was supported by the Judicial Conference of the United States in 1984 when it resolved, The Judicial Conference endorses the ex- perimental use of summary jury trials as a potentially effective means of promoting the fair and equitable settlement of poten- tially lengthy civil jury cases. Chief Justice Warren E. Burger echoed this viewpoint in his 1984 Year-End Report of the Judiciary, when he stated, Summary jury trials...are becoming in- creasingly useful as j udges across the coun- try adapt these approaches to achieve their goals. In the summary jury trial, attorneys present abbreviated arguments to jurors who render an informal verdict that guides settlement of the cases. Judge Thomas Lambros (N.D. Ohio), who developed a workable summary jury trial procedure, reports that virtually all of more than 100 suits handled through this method have been concluded without the need of a full trial. The Judicial Conference in 1984 en- dorsed the experimental use of summary jury trials "as a potentially effective means of promoting the fair and equitable settle- ment of potentially lengthy civil jury cases."...These judicial pioneers should be commended for their innovative pro- grams. We need more of them to deal with the future. This article is intended to assist judges, lawyers, and litigants in imple- menting the summary jury trial proce- dure. It is hoped that summary jury trial will assist in resolving disputes and in some measure reduce the burdens on the adversary system. O THOMAS D. LAMBROS is a United States District Judge in the Northern District of Ohio; he is the creator of the summary jury trial p'rogram. 290 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022243
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case developtnent is voluntary the proce- dures can end up being little used.' The federal courts' authority to com- pel litigants to participate in an early neutral evaluation exercise does not seem seriously disputable. Federal courts have drawn on Rule 53. Rule 83, and their "inherent powers" tr> impletnent plo- grams designed to impro~e the efficiency of dispute resolution. The seminal case in this area is Ex parte Peterson,s where Justice Brandeis, speaking for the court, declared: Courts have (at least in the absence of legis- lation to the contrary) inherent power to provide themselves with appropriate in- struments required for the performance of their duties. Compare Stockbridge Iron Co. v. Cone Iron Works, 102 ,Niassachusetts, 80 87-90. This power includes authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause. From the com- mencement of our Government, [this power] has been exercised by the federal courts, when sitting in equity, by appoint- ing, either with or without the consent of the parties, special masters, auditors, exa- miners and commissioners.9 The committee's confidence that there is authority to compel parties to partici- pate in the early neutral evaluation pro- gram is reinforced by the fact that the Judicial Conference of the United States, the Justice Department, and, as of 1985, ten federal district courts have concluded that there is authority tocompel parties to participate in non-binding arbitration.'0 Moreover, federal district courts in Wash- ington (state), Michigan, Connecticut, and New York have established programs in which parties are required to partici- pate in settlement or pretrial conferences that are hosted by private lawyers who 7. .action Commission to Reduce Court Costs and DeW, ATTACKING L.ITIGATION COSTS AND DE- t..vy. 16-17 (Washington, D.C.: American Bar Asso- ciatiun, 1984). 8. 253 L'.S. 300 119201, 9.Id.at312,313. 10. For a list of the federal district courts that hace established court-annexed mandatory (but non-binding) arbitration programs, see Hensler, ft'hat we know and don't know about court- adrninistered arbitration, 69 JL'DICATURE 270, 272 (1986). The mandatory arbitration~mediation pro- giant that has been established in the Eastern Dis- trict of Michigan absorbs the procedure developed in the state courts in Wayne County; the latter is described in Shuart, Smith, and Planet, supra n. 3. 11, Supra n. 3. I2. See Ex parte Petersen, 253 U.S. 300 (1920). 13. Id. See a lso Brazil, Authority to Refer Discov- ery Tasks to Special ,ltasters in Brazil, Hazard and Rlce, MANAGING COMPLEx LITIGATION: PRACTICAL have been appointed by the courts." Nor does it appear that the Seventh Amendment poses an obstacle to im- plenienting an early neutral evaluation procedure. As long as the program does not block or significantly delay access to trial, requiring parties to participate would not offend their tight to jury triai.'2 Since the purpose and probable effect of the evaluation procedure would be to expedite case preparation, save lit- igants money and time, and (by encour- aging earlier settlements) improve access to early trial dates, the committee sees no colorable Seventh Amendment objection. Whether the court has authority to compel litigants to pay the master's fee raises a separate question, but we believe it also can be answered in the affirma- tive. We rely primarily on the line of cases, again beginning in the modern era with Ex parte Peterson, that hold that federal courts have inherent power to appoint special masters, over the objec- tion of parties, and to require parties to pay for the masters' services.13 The fed- eral courts in Michigan reinforce our conviction on this issue by requiring the parties to pay the fees of the arbitrators in the mandatory evaluation program that is well-established in those courts.14 Kinds of cases Given the fact that, to our knowledge, this kind of evaluation procedure has not been tried elsewhere, it is not possible to pre- identify the kinds of cases or situations in which the early neutral evaluation proce- dure would be beneficial.15 Moreover, dif- ferent dimensions of the evaluation pro- cedure may have different degrees of util- ity in different kinds of cases. For example, in smaller, less complex GL'IDE TO THE USE OF SPECIAL MASTERS (Chicago, IL: American Bar Foundation. 1983). 14. See Shuart, Smith, and Planet, supra n. 3, and Cecil and Meierhoefer, REPORT ON THE 4fEDIATION PROGRAM 1N THE EASTERN DISTRIC7 OF MICHIGAN (Washington, D.C., Federal Judicial Center, 1983). 13. It is noteworthy that the Federal Bar Associa- tion in the Western District of Washington recently urged the District Court there to extend the use of private attorneys as hosts of special settlement con- ferences to all kinds of cases. Some of the judges in that court have tended to use private lawyers in this capacity primarily in smaller, less complex cases. See Burdell, supra n. 3, and Tegland, supra n. 3. 16. The settlement conference technique thatt consists of a j udicial officer tel ling counsel what he or she thinks the dollar-range of a reasonable set- tlement would be is given higher effectiveness rat- ings by lawyers who most commonly handle smaller cases than by their big case counterparts. See Brazil, SETTLING CIVIL SUITS, supra n. 4, at 114. actions, it may be that the Inost useful part of the progranr will be the dollar- specific valuation.1ti In larger, rnore com- plicated matters, by contrast, the parties might find more valuable the evaluator's critiques of specific theories, or sugges- tions about the most efficient ways to share information arrd conduct discov- ery. And there may be types of cases in which the most useful contributions by the evaluator will be creative sugges- tions that encourage parties to rethink their basic objectives, or to consider inno- vative dispute resolution mechanisms that take the case, at least temporarily, out of the traditional litigation mold. At this juncture neither lawyers nor j udicial officers know enough about how the evaluation dynamic will work to be able to select the cases for which this pro- gram is likely to be valuable. Presumably there are kinds of cases in which an early evaluation session would be unproduc- tive, perhaps even counterproductive. The way to learn what those kinds of cases are is to expose a range of matters to this procedure and then to monitor closely how the system works and what results it produces. It is for this reason that the court will send a broad range of cases through the program and will care- fully study how the procedure works. Conclusion The judges of the United States District Court for the Northern District of Cali- fornia have concluded that the early n.eu- tral evaluation program described here is sufficiently promising to justify exper- imenting with it in about 100 cases over a one year period. The court is establish- ing a system to monitor and evaluate the program as it operates. Thus we should begin learning whether, or in what cir- cumstances, a procedure like this can contribute to the efficiency and quality of dispute resolution. 0 WAYNE 0. BRAZIL is a United States magis- trate in the Northern District of Californta. MICHAEL A. KAHN is a partner in the San Francisco office of the law firm of Folger and Levin. JEFFREY P. NEWMAN is a partner in the law firm of Farella, Braun and Martel, San Fran- cisco. JUDITH Z. GOLD is associated with the law firm of He/ler, Ehrman, White and McAuliffe, San Francisco. TITX 0022238 285 ~
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takes a case to court, she knows what she will find-a procedure that is specified by rules and that is familiar in every respect. If she opts for an alternative process, she frequently must decide what rules she wishes to applv, and then obtain oppos- ing counsel's agreeutent to those rules. The path of least resistance is to litigate. Finally, the lawyer is apt to have in com- mon with her client the view• that adver- sary combat in a judicial arena is the normal, socially acceptable and psycho- logically satisfying method of resolving disputes. Indeed, most legal education is premised on an adversarial approach to dispute resolution.' There are also psychological factors that discourage an enthusiastic accep- tance of alternative processes by lawyers. Like most other professionals, lawyers frequently exert considerable control over their clients, which derives from the lawyer's ability to utilize a complex set of technical rules. This dominance is jeo- pardized by the use of dispute resolution methods like negotiation and mediation that place greater emphasis on client control over the outcome. These methods contemplate at times a diminished role for lawyers, (e.g., as non-participating advisers in a divorce mediation) and at other times a different conceptualization of their role, (e.g., as process facilitators who enable the parties themselves to arrive at the best possible solution). While these new roles may represent an exciting challenge to younger lawyers seeking to integrate their personal values with their professional training, they are regarded as threatening by many older lawyers who have become accustomed to the dominance and control inherent in much traditional legal practice. Economic considerations may also constitute a significant impediment to the greater use of alternatives. Over the past decade, law firms have built up im- mense litigation departments. Even though some of the leading litigation practitioners are prominent in the alter- natives movement because they see the advantages of accommodative problem- solving in many situations, the very exis- tence of these expanding litigation em- pires constitutes a self-reinforcing move- ment towards more and more litigation. Aside from these institutionall forces, there are elements of the typical attorney compensation structure that militate against greater use of alternatives. The lawyer who gets paid on an hourly basis has no short-run economic interest in faster methods of dispute resolution. The plaintiff's lawyer who is paid on a contingent fee basis might, unless he w•i1l receive a higher proportion of a jury kerdict than of a settlement. Under these circumstances, processes that encourage settlement may not be welcome. Alternatives may also have an impact on future fees. If mediation, as adver- tised, deters future disputes so that peo- ple do not have to go to a lawyer as of ten, then lawyers may see the alternatives movement as disadvantageous to their economic interest. On the other hand, lawyers must be concerned about their competitive position vis-a-vis other law- yers; once clients become aware of the benefits of alternatives, they may bring pressure on their attorneys to use these methods or threaten to take their busi- ness elsewhere. Inasmuch as attorneys can buttress the case against the use of alternatives by the uncertain results and the absence of legal protections inherent in those processes, it may be only the client with considerable sophistication who will be capable of withstanding the countervailing pressures and insist upon the use of alternatives. Even those attorneys who support alternative processes in principle, and would encourage their use in specific cases, may encounter difficulties. For example, some lawyers believe that a suggestion to opposing counsel that alternatives to litigation be explored may be taken as a sign of weakness (fear of litigation), which will negatively af- fect the lawyer's negotiating position. It is also possible that the Code of Profes- sional Responsibility's emphasis on "zealous representation" deters some lawyers from proposing what has been called "a warmer way of disputing."' Furthermore, the lawyer who would not only advocate, but engage in, the provi- sion of dispute resolution services must be concerned with the vague prohibi- tions of the Code against dual represen- tation, which, to some uncertain extent, preclude lawyers from acting in a media- tory role. There are also barriers to the provi- sion of alternative dispute resolution services by those who are not lawyers. They must first acquire the necessary skills-no easy task at a time when the state of the art is still fairly primitive. Then they must turn these skills into a marketable career, which brings them up against the impediments earlier alluded to-a minimal demand compounded bv the absence of institutional structures and public funding. Finally, there is the risk that in providing dispute resolution services they will run afoul of the prohi- bitions on the unauthorized practice of law. Indeed, there have already been a number of instances in which such pro- hibitions have been invoked against di- vorce mediators. To be sure, the exten t to which non-lawyers should be free to provide dispute resolution services pres- ents difficult issues. For present pur- poses, however, the point is that the unauthorized practice rules deter the provision of dispute resolution services by non-lawyers, and thereby to some extent discourage their use. Needless to say, these barriers to the use of alternatives have crosscutting and interlocking effects. For example, one reason for the shortage of empirical data is the shortage of research funds, but the shortage of persuasive research data in turn makes more difficult the procure- ment of additional funds to facilitate the enhanced institutionalization of alter- native mechanisms. In subsequent sections of this article, we will explore further some of these barriers and ways of ameliorating them. As regards the overriding goal of the need for enhanced education with re- spect to alternatives, perhaps the most promising efforts along these lines are presently being made through inclusion of conflict resolution units in the public school curriculum.5 Only if people learn at an early age about the varied ways of resolving conflict can the prevailing emphasis on adversary dispute settle- ment be significantly moderated. Critiques of mediation The principal thrust of recent criticism of ADR has been aimed primarily at mediation, perhaps because that process 3. Riskin, Mediation and Lawyers, 43 OHfO ST. L.J. 29 (1982). 4. Smith, A Warmer Way of Disputing: Sfedia- tion and Conciliation, 26 AM. J. CoMP. L. (Supp.) 205 (1978). 5. Davis, Justice Without Judges, LPDATE ON LAw-RELATED EDUCATION (Chicago: American Bar Association Special Committee on Youth Educa- tion For Citizenship, 1984). 292 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022245
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cesses iuch as mediation.10 A need for empirical research Notable progress has been made in dem- onstrating empirically some of the claimed advantages of alternati~e meth- ods of dispute rcsolution, such as the greater satisfaction of disputants with mediation." Most of the mediation re- search, however, has been carried out with disputants who mediated voluntar- ily. The obvious risk is that those dispu- tants who were willing to mediate were particularly susceptible to a mediatory approach, and that if mediation were compulsory, as may be necessary to bring about its widespread use, its apparent advantages would disappear. For exam- ple, settlement rates, compliance, and participant satisfaction might all dimin- ish if mediation were compulsory. Another risk of compulsory media- tion is that disputants who would other- wise resolve their disputes through di- rect negotiation might take advantage of the easy accessibility of mediation, each hoping to do better in mediation than in negotiation. If that would occur in a sub- stantial proportion of cases, mediation would, as a practical matter, be a substi- tute for negotiation, and should be com- pared to it, not adjudication. Hence, re- search on the ef fects of compulsory medi- ation on settlements by negotiation is called for, as is research comparing com- pulsory mediation with adjudication. The data on compulsory mediation are slim. McEwen and Maiman found that in the mediation of small claims, neither settlement rates nor compliance varied according to whether mediation was voluntary or compulsory.12 How- ever, their findings are weakened by the fact that in the small claims courts they studied the assignment of cases to media- tion was not random. Judges in some courts ordered disputants to mediation, while others made mediation voluntary. It is not clear whether those judges who imposed mediation did so in all cases, or only in those cases in which they thought the parties were susceptible to a media- tory approach. If the latter procedure were followed, the data regarding the effectiveness of compulsory mediation would be weakened.13 A subsequent study, however, in which a six-month period of voluntary mediation of grie- vances arising under a collective bar- gaining contract was followed by a six- month period of compulsory mediation, found that settlement rates at mediation were not affected by whether mediation was voluntary or compulsory. The same study found compulsory mediation asso- ciated with a decrease in directly nego- tiated settlements, although the exist- ence of a causal relationship could not be determined.14 Considerably more research on the effects of compulsory participation in alternatives to litigation is needed. One opportunity for such research in the mediation context is presented by Cali- fornia's recent change from voluntary to compulsory mediation of child custody disputes. Data comparing mandatory mediation to voluntary mediation or adjudication of child custody disputes on each of the criteria discussed by Pear- son would be extremely useful.15 Obvi- ously, any such study would have to be replicated in other contexts before we could generalize from it. The spread of compulsory court-an- nexed arbitration provides ample oppor- tunity for testing the extent to which this process is capable of resolving disputes more satisfactorily than they would be resolved by the traditional route of set- tlement negotiations followed by trial for those cases that do not settle. It is, of course, important in collecting data on this question that courts which are expe- rimenting with arbitration do so in a truly experimental mode, assigning cases randomly to the arbitration route and the traditional route. Only then will we have a clear comparison of the two approaches. One problem with such research, however, is that it is unclear whether random assignment would con- stitute constitutionally impermissible disparate treatment.16 If the alternatives to adjudication have all the advantages claimed for them, why are they not more widely used? The an- swers to this question remain a matter of 11. Pearson, .An Evaluation of Alternatives to Court Adjudication, 7 Jvsr.Svs.J. 420 (1982). 12. McEwen and Maiman, Small Claims Media- tion in Maine: An Empirical Assessment, 33 ME. L. REV. 237 (1981). 13. But see McEwen and Maiman, Mediation in Small Claims Court: Achieving Compliance Through Consent, 18 LAW & Soc'Y REV. 11, 22-28 (1984). 14. Brett and Goldberg, Grievance Mediation in the Coallndustry, 97INDUS. AND LAB. REL. REV. 49, 56, 59-60 (1988). 15. Pearson, supra n. 11. 16. Federal Judicial Center, EXPERIMENTATION IN contro% ers~. It is, howe% er, an exceedingly important question. For, until we know why voluntary alternatives are not more used, any response to their underutiliza- tion will necessarily be based on specula- tion, with all the false starts and ineffi- cient expenditure of resources that entails. Researchers have already determined what proportion of disputes result in court filings by tracking disputes from their origin to their final disposition." However, that research does not disclose why those disputants who went to court did not utilize one of the alternatives to litigation. To answer the latter question, one might offer disputants their choice of adjudication or mediation. Those who chose adjudication rather than me- diation could be questioned concerning their reasons. Additionally, the charac- teristics of those who chose mediation could be compared with those who chose adjudication. In conducting research of this type with individuals who accepted and rejected mediation of child custody disputes, Pearson, Thoennes and Van- derKooi found that the lawyers' attitude toward mediation was the key factor in the choice of processes.1e Similar research could be conducted in conjunction with the multi-door courthouse experiments described by Finkelstein elsewhere in this issue.'s Lack of knowledge It is frequently asserted that a major rea- son for the failure to use alternatives to adjudication is lack of knowledge. One recent study, however, casts doubt upon this assertion. According to Merry and Silbey, who studied attitudes and behav- iors of disputing in three neighborhoods, disputants do not use alternatives to the extent hoped for by their proponents because by the time they are willing to turn to an outsider for help, they do not want what alternatives have to offer.20 They no longer wish to settle the dispute by discussion and negotiation; rather THE LAW: REPORT OF THE FEDERAL JUDICIAL CEN- TER ADVISORY COMMI7TEE ON EXPERIME NTATION IN THE LAW (Washington, D.C.: U.S. Government Printing Office, 1981). 17. Miller and Sarat, Grievances, Claims and Disputes: Assessing the Adversary Culture, 15 LAW AND Soc'Y. REV. 525 (1981). 18. Pearson, Thoennes and Vanderkooi, supra n. l. 19. Finkelstein, The D.C. Multi-Door Court- house, 69 JUDICATURE 305 (1986). 20. Merry and Silbey, What Do Plaintiffs Want? Reexarriining the Concept of Dispute, 9 JUST. SYS. J. 151 (1984). 294 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022247
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that participants in the alternative pro- cesses are as satisfied or more satisfied with those processes than are partici- pants in court adjudication." There are undoubtedly other ques- tions not mentioned here that are impor- tant f)r the futurc of the dispute resolu- tion moveatent as a whole or for particu- lar processes. The crucial point is that as such questions are identified they should be scrutinized to determine the extent to which they are susceptible to empirical research. Such research may, to be sure, have a limited effect on the resolution of the underlying legal and policy ques- tions, a phenomenon frequently noted (and bemoaned) by social science re- searchers.25 Still, empirical data can be influential in changing policy, particu- larly to the extent that existing policy is based on factual misconceptions. In a field as comparatively new as dispute resolution, such misconceptions are cer- tain to abound. Hence, the opportunity exists for empirical researchers to make a significant contribution to removing at least some of the impediments to the expanded use of alternative dispute reso- lution processes.zb Creating a coherent scheme It is implicit in the preceding discussion that dispute resolution mechanisms are dispersed all through the social fabric. Sometimes they are private; sometimes they are public. Sometimes they are mandatory; at other times they are op- tional. Wherever disputes arise between individuals and organizations, a com- plex network of possible grievance mech- anisms appears to be available for the venting of these grievances.27 The question naturally arises what, if any, relationship there should be between the different types of mechanisms. This question assumes importance not only for the disputant who might benefit from some guidance concerning where to take any particular dispute but also from the point of view of society seeking to pro- vide a coherent response to these requests. One can certainly envision a system in which there is some kind of hierarchy and structure within the formal public dispute resolution system, but where that system is complemented in some vague way by a vast and ill-understood network of indigenous dispute mecha- nisms. Indeed, that, in essence, is our Dispute resolution mechanisms are dispersed all through the social fabric. present system. Disputants may first try to utilize the vast array of informal mech- anisms that are provided in the particu- lar universe where the dispute arises, and then, as a last resort, take the dispute to the public forum, the court.28 At least that is the paradigm. In fact, of course, informal private mechanisms often are not available, or if they are, they are not resorted to, and the typically American habit of taking the case immediately to court often becomes the prevailing prac- tice. The net effect is that many disputes presented to court are not appropriate for court adjudication and could be bet- ter handled by some other mechanism.29 This situation led to a suggestion by one of the authors in a paper delivered at the Pound Conference in 197611 that, in lieu of the courthouse as we now know it, we might envision in years ahead a more comprehensive and diverse mechanism known as a Dispute Resolution Center, which would seek to provide a variety of dispute resolution processes, according to the needs of the particular dispute. Someone subsequently dubbed this con- 24. Pearson, supra n. 11. 25. Weiss, USING SOCIAL SCIENCE RESEARCH IN PuBLIC POLICY MAKING (Lexington, MA: Lexing- ton Books, 1977); Lindblom and Cohen, USABLE KNOWLEDGE (New Haven, CT: Yale University Press, 1979). 26. The need for additional empirical data is equalled by the need for careful analysis of both existing and newly-collected data. Galanter, Read- ing the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 U.C.L.A. L. REv. 4 (198.°,). 27. Galanter, Justice in Many Rooms, 19 J. OF LEG. PLURALISM 1 (1981). 28. "At present, it is almost accidental if com- munity members find their way to an appropriate 296 Judicature Volume 69, Number 5 February-March, 1986 cept "the multi-door t ourthouse. The multi-door courthouse What would such an institution look like? A provisional first-step type of multi-door courthouse could consist es- sentially of a screening and referral clerk who would seek to diagnose incoming cases and refer them to the most suitable process. Depending on the available mechanisms in the particular commun- ity, referrals might be made to media- tion, arbitration, court adjudication, fact finding, malpractice screening, a media action line or an ombudsman.31 One of the fringe benefits of such an institution is that it would provide an opportunity to learn more about what process is most appropriate for what kinds of disputes; it would also give helpful feedback concerning what "doors" were missing or not working effectively. That information could then be utilized to refine the model. The potential benefits of such an approach are enhanced responsiveness and effectiveness, possible time and cost savings, and the legitimization of var- ious alternative dispute resolution pro- cesses. N1'hat should result is less frustra- tion among the populace irt dealing with the vagaries of the legal system. An additional benefit would come from a better understanding of the peculiar ad- vantages and disadvantages of particular processes for specific types of disputes. There are also potential pitfalls. Not only will the success of a multi-door courthouse largely depend on the skill of the intake official, there is also a real danger-as with all administrative inno- vations-that it will become the genesis of a new bureaucracy that will result in Kafkaesque shunting of individuals from one "door" to another without any genu- ine effort to address the problems pres- forum other than the regular courts. Several other modes of dispute resolution already are available in many communities. Still, since they are operated by a hodge-podge of local government agencies, neigh- borhood organizations, and trade associations, citi- zens must be very knowledgeable about community resources to locate the right forum for their particu- lar dispute." Johnson, Toward a Responsive Jus- ttce System in STATE COURTS: ABLUEPRINT FORTHE FUTURE 122 (Williamsburg, VA: National Center for State Courts, 1978). 29. Sander, Varieties of Dispute Resolution, 70 F.R.D. 111 (1976). 30. Id. 31. For a description of the way cases are handled in a multi-door courthouse, see Finkelstein, supra n. 19. TITX 0022249 M
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each wants vindication. protection of his or her rights, an adk ocate to help in the battle, or a third party who will declare the other party wrong. Another approach to testing the hy- pothesis that lack of knowledge is a major barrier to the use c,f alternatiYes would be to compare the numher Of cases submitted to the judicial system and to, forexample, the neighborhood justice center, in two closely matched communities, preceding and following an extensive education program, using both the media and the schools in one of those communities. Any significant difference in the proportion of cases submitted to the neighborhood jus- tice center in the "educated" community compared to the control community could (absent other intervening variables) be attributed to the educational catn- paign; any significant increase in the total volume of cases presented to the neigh- borhood justice center and the courts combined in the "educated" community compared to the control community might also indicate that an effect of the education campaign was to reduce the frequency of "lumping it" or avoidance as a means of dispute resolution.21 Another means to determine the ex- tent to which lack of knowledge regard- ing alternatives explains their limited use is to provide such knowledge, to- gether with encouragement to try an alternative in appropriate cases, and facilitate access to the alternatives. That is the approach being taken by the multi-door courthouse experiments. What can research accomplish? Can we develop a satisfactory taxonomy of dispute resolution processes, match- ing disputes to appropriate dispute reso- lution processes? To some extent, the success of the multi-door courthouse ivill depend on the capacity of its staff to direct disputants to a process that is appropriate for their dispute. However, to the best of our knowledge, there are no empirical data on this question. To gen- "l. Felstiner, Abel and Sarat, The Emergenceand rransformation of Disputes: Naming, Blaming, Claming, 15 LAW AND Soc'Y. REV. 631 (1981). '-'2. Ihibaut and Walker, PROCEDURAL JUSTICE: A P YCHOLOGICAL ANALYSIS ( Hlllsdale, NJ: Lawrence F:rlbaum, 1975); LaTour, Houlden, Walker, and thibaut. Procedure: Transnafional Perspectives a ad Pre ferences, 86 YALE L. J. 258 (1976); Brett, Pro- dural Justice in Symposium, JUSTICE: BEYOND F2~trY THEORY (Convention, Academy of Man- Kement, 1983). -°i1. Fiss, supra n. 6, erate such data, a laboratory experiment might be conducted in which the same dispute was dealt with in a variety of dispute resolution processes. Measures could then be taken of settlement rate, cost, speed, participant satisfaction with process and outcome, and other rele%ant kariables. If such an experiment were conducted with a number of different t~,pes of disputes, varying in such criteria as subject matter, amount at issue, pres- ence or absence of a continuing relation- ship, presence or absence of a substantial power disparity, etc., one would begin to develop some empirical basis for sug- gesting that a particular type of dispute might be best handled in a particular process. Laboratory experiments of this nature, in which the same dispute has been subjected to a variety of dispute resolution processes, and participant satisfaction measured in each, have been conducted by Thibaut and Walker, LaTour, et al and Brett.22 Can we develop a sophisticated cost- benefit analysis for the various dispute resolution processes? Doing so presents substantial questions of measurement. Some items can be measured in financial terms, some in psychological terms, some not at all. For example, many of the costs to both the public and the parties of resolving a dispute in one process or another-attorneys' fees, dispute resolv- ers' salaries-are easily measurable in financial terms. Similarly, some benefits, such as increased compliance and deter- rence of future disputes, can be translated into financial terms. There are, however, some items, such as participant satisfaction, that can be measured only in psychological terms, and others that cannot be measured at all. What, for example, is the cost to the jus- tice system or the parties of a dispute being settled in mediation, but no prece- dent being set, as it would be in adjudica- tion?23 Another problem of cost-benefit analysis in this context is the difficulty in determining the appropriate unit of mea- surement. If mediation does, indeed, lead to greater compliance and deterrence of future disputes, its benefits extend be- yond the individual case in which it is used, and treating the case as the approp- riate unit of measurement would be mis- leading. In sum, the most that research may be able to accomplish in this context is to provide a variety of measures on which to compare some of the costs and benefits of the various dispute resolution processes. Still, even those data, limited as they are, are preferable to sheer impres- sionisrn as a means for allocating limited funds among these processes. Is there a danger that in our preoccu- pati.on with finding the appropriate dis- pute resolution process, we will lose sight of the need for fair outcomes? While one cannot engage in empirical research bearing directly on this specula- tive question, it is possible to design research with the aim of minimizing the danger that the need for fair outcomes will be overlooked. For exatnple;, in doing the research necessary to develop a taxonomy of dispute resolution pro- cesses, one could include among the measures to be examined both objective criteria such as the efficiency of the out- come (the extent to which joint gains have been maximized) and subjective criteria such as the parties' satisfaction with outcome, as distinguished frotn process. Indeed, considerable research has already been done on participant satisfaction. That research suggests that satisfaction with process is related to satisfaction with outcoms:'-disputants who believe that a dispute resolution process was fair tend also to believe r.hat the outcome was fair. Is there a danger that the availability of alternatives will shunt low and middle- income disputants to a form of second class j ustice, consisting primarily of semi- coerced compromise settlements, while the so-called first-class justice offered by the courts becomes available only to the rich and powerful? To some extent, this question presents an issue of definition. What is first-class justice? If it is defined as a method of resolving disputes that includes legal representation, formal rules of procedure, and a resolution based upon law, then those alternatives that are mediatory in nature will inevitably be labelled second-class, and the central question essentially answers itself. If, however, first-class justice is defined as that dispute resolution process which most satisfies the participants, research can be conducted by surveying the users of the alternative processes concerning their satisfaction with them, and com- paring their responses with those of the users of the courts. Much of that research has been done, and uniformly concludes TITX 0022248 295 I
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Im Review Essay Dispute resolution: the periphery becomes the core Dispute Resolution, by Stephen B. Goldberg, Eric D. Green and Frank E. A. Sander. Little Brown & Co., Boston, MA 02106. 1985. 594 pages. $28.00. by Carrie Menkel-Meadow In recent years a subject called "alterna- tive dispute resolution" has garnered much attention in the literature of judi- cial administration, litigation manage- ment, legal scholarship and legal educa- tion. Some call this attention a social movement because it calls for greater access to courts and greater flexibility in resolving a myriad of social and legal problems. Others see the developments encompassed by the phrase "alternative dispute resolution" as a problematic effort to streamline litigation and to pri- vatize and separate some disputes from others. For me, one of the more interest- ing aspects of this development has been the misnomer attached to the "move- ment." For the processes included-ne- gotiation, arbitration, mediation, sum- mary proceedings-are hardly alterna- tives: they are the norm for dispute resolution. Litigation in the form of trial held in court is, in fact, the "alterna- tive" when over 90 per cent of all cases, civil and criminal, are settled before trial. Happily, the first text to emerge in this field,' Dispute Resolution, by Stephen Goldberg, Eric Green and Frank Sander, will help to correct the gross disparities in attention paid to the various forms of dispute resolution in modern legal edu- cation. Whether the emergence of a few new texts and courses in legal education will effectively attract our attention to the core of dispute resolvers' activities, rather than to the periphery of the trial and appellate opinion, is a subject I will address later in this review, but books like Dispute Resolution will certainly give us the opportunity to reconceptual- ize our study of the legal system. In this essay I will review the state of the field which produced Dispute Resolution, the choices made by the authors to educate us about the field and the implications of the publication of such a book for teaching and research in this "new" field. Why ADR now? In their preface, the authors suggest that although many forms of dispute resolu- tion now popular (such as arbitration and negotiation), are not new, the late 1960s produced a "flowering of interest in alternative forms of dispute settle- ment." (p. 3) This development arose because of the confluence of the increase in legal rights asserted through lawsuits in a time of legal and social activism with a decrease in the number or quality of social institutions (churches, families, communities, schools and local govern- ment units) able to deal with and resolve these new competing demands. Thus, the volume of cases increased and there was a need to "process" them. At the same time, many of the "move- ments" of the 1960s also demanded not only more substantive rights, but greater procedural rights, flexibility, and partic- ipation in the determination of disputes. "Maximum feasible participation" was a phrase attached to many social pro- grams of the '60s, and this theme is echoed in many of the attempts to return disputes to the communities in which they occurred. Intellectual developments in this period, such as the work of Laura Nader in dispute studies in other cul- tures2 and Lon Fuller in legal scholar- ship,3 suggested experimenting with other forms of resolving different types of disputes, leading to such concrete developments as the neighborhood jus- tice centers.' This period also saw the rise of anti-professionalism, or at least a demystification of professional work and a demand for lay or client participation in legal services as well as other profes- sionally delivered help. It seems clear to us now that the themes of this period were participation, flexibility of both process and result and access to justice of those previously foreclosed, as well as extension of models of procedural jus- tice into such other domains as the workplace, local community and family. In the mid-1970s another stream of interest in "alternative" dispute resolu- tion came from different sources. The American Bar Association established a Special Committee on Minor Disputes, the Chief Justice began speaking out on the need to deflect some cases out of the judicial machinery into other forms of dispute processing,5 and large law firms, the insurance industry and companies with large litigation budgets began to study and consider faster and cheaper ways of managing disputes at. a time when court dockets "seemed" congestedfi and litigation costs seemed grossly out of line. In addition, complex and technical cases were being decided by those (both judge and jury) who might not have the technical expertise to understand the underlying dispute. To this wing of the alternative dispute resolution movement the important themes are efficiency, speed of processing, transaction costs in get- ting disputes resolved and technical com- petance for "best" results. In the 1980s we sit listening to a caco- phony of voices talking about dispute resolution for a number of different rea- sons and raising a number of different values, rationales and j ustifications for a wide variety of different proposals. The social forces which join to bring us this interest in dispute resolution-both practical and theoretical-are themselves sometimes in dispute or conflict. Is ADR outside of courts being suggested at a time when certain groups have recently obtained their rights in civil rights, torts, or warranties? Are the well-endowed bet- ter able to buy the dispute resolution device that best meets their needs? Has one wing of ADR, motivated by cost sav- l. There will soon be others including Kano- WI[Z, CASES AND MATERIALS ON ALTERNATIVE DIs- PUTE RESOLUTION (St. Paul, '*1N: West, 1985); Ris- kin, MEDIATION (St. Paul, MN: West, 1986), Rogers & Salem, MATERIALS FOR STUDY OF VIEDIATION (New York: Matthew Bender, 1986); Riskin & West- brook, MATERIALS ON ALTERNATIVE DISPUTE PRO- CESSING AND LAWYERS (St. Paul, MN: West, 1985). 2. Nader & Todd, THE DISPUTING PROCESS- LAw IN TEN SocIETIES (New York, NY: Columbia University Press, 1978). 3. Fuller, Mediation-Its Form and Functions, 44 So. CAL. L. REV. 305 (1971); Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353 (1979). 4. Tomasic & Feeley, NEIGHBORHOOD JUSTICE: ASSESSMENT OF AN EMERGING IDEA (New York: Longman, 1982). 5. See e.g., Burger, Agenda for 2000 A.D.-A Need for Systematic Anticipation, 70 F.R.D. 83 (1976). 6. See Galanter, Reading the Landscape of Dis- putes: What We Know and Don't Know (And Think We Know) About Our Allegedly Conten- tious and Litigious Society, 31 UCLA L. REV. 4 (1983), for an argument that our dockets are not nearly as crowded as we think. 300 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022253
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struggle often ensues o\er vchether the occupation will become fully profession- alized with specialized degree programs and exclusionary licensing. There are vigorous advocates of pro- fessionalization of mediation. Robert Coulson, president of the American Arbi- tration Association, has recently issued a call for "a full-fledged profession of Cer- tified Public iVlediator."Ie He visualizes a system in which local courts would reg- ulate mediators as they now regulate lawyers, and litigation could not be undertaken without the assurance by a CPM that mediation had been fully util- ized in an effort to avoid litigation. Although most CPMs would be lawyers certified by the court, there would be a role for nonlawyers in specialized sub- stantive areas.39 Others oppose efforts to professional- ize the alternatives movement. They con- tend that professionalization is inconsis- tent with the goal of community building through lay dispute resolution. They are also concerned that replacing volunteer mediators with paid professionals will increase costs and restrict the availability of alternatives.'o While at present there is no legal regu- lation of the private practice of dispute resolution, there is an increasing ten- dency by public agencies to set min- imum education and experience require- ments for mediators. The California, Connecticut, Nevada, and Oregon courts, for example, require that family media- tors employed by them have a master's degree in counseling, social work, or a related field, as well as substantial expe- rience. Other courts require that media- tors working in court-established media- tion programs be members of the bar or establish their expertise in the subject of the dispute.at The pros and cons of such standards and of greater regulation of private medi- ation are discussed by Folberg and Tay- lor.92 As they point out, some commenta- tors argue that minimum education and experience requirements and licensure of practitioners are necessary to protect an unknowing public from incompe- tents and charlatans. These commenta- tors point out that the quality of services cannot easily be judged by the results obtained, and that most clients will have little or no experience against which to evaluate the performance of a mediator 298 Judicature Volume 69, Number 5 February-March, 1986 or other dispute resolution practitioner. Further, the generally private, informal, and interdisciplinary nature of dispute resolution practice increases the danger that "bad" or unfair practices will occur and go undetected. Codes and standards A logical conclusion of this reasoning is not only to set minimum educational and experience requirements, but also to establish standards of practice that will enable clients to judge the quality of the services they receive. Such standards can serve as a set of expectations and min- imally acceptable common practices for the service offered, thereby protecting both the client and the provider by defin- ing what is "reasonable care,"49 Others, however, argue that alternative dispute resolution is still such a new field that it is difficult if not impossible to set stand- ards of practice with any degree of conf i- dence. In lieu of standards of practice, they would do no more than articulate basic ethical precepts, derived from fun- damental notions of fairness, decency, and morality. We doubt whether this distinction between standards of practice and ethi- cal limitations-between "do's" and "don'ts" in Folberg and Taylor's termi- nology"-is easy to apply in practice or serves much purpose. Codes of ethics for arbitrators have been promulgated by the American Arbitration Association and other arbitration associations.45 Standards of practice and codes of ethics have also been promulgated by inter- ested and responsible groups in the fields of family and labor mediation. Others will undoubtedly follow. The real ques- tion is what use is to be made of such standards and codes. If they are used to educate novice practitioners and inform the public of what is generally consi- dered good practice, and to serve as guidelines for agencies and courts when judging whether a practitioner has used reasonable care, then careful and flexible use of such standards will be beneficial. 38. Coulson, PROFESSIONAL MEDIATION OF CIVIL DISPUTES (New York: American Arbitration Associ- ation, 1984). 39. Id. at 24-25, 32-33. 40. Pipkin and Rifkin, supra n. 37 at 207. 4 1. The issue also arises in connection with con- fidentiality statutes that seek to limit the individu- als who are entitled to the statutory protections. See e.g., Mass. Ann. Laws c. 233, §28c (1985). 42. Folberg and Taylor, MEDIATION: A COMPRE- HENSIV E GUIDE To RESOLVING CONFLICTS W ITHOUT If, however, they are applied rigidly or for the purpose of protecting the turf of a particular group, then such standards are likely to retard desirable experimen- tation and growth. It is therefore important to consider how standards might be enforced. There are four traditional options: n regulation and licensing by gov- ernment; . self-regulation and licensing by a trade or professional organization with expulsion the ultimate sanction; •liability principles, i.e., suits for malpractice or negligence; • public disclosure and the operation of the marketplace, coupled, perhaps, with certification of expertise or edu- cation. These options are not mutually exclu- sive. In most professions (e.g., law, med- icine) standards of practice and ethical behavior are enforced in all of these ways. But these professions tend to be well-established, cohesive, and highly developed, as opposed to the emerging dispute resolution profession. Moreover, even in the older, estab- lished professions, critics contend that professionalization, when coupled with standards and licensure, serves more to protect the turf of the powerful than the interests of the public. The tendency of professionals to create a monopoly by employing licensing standards in an economically self-interested manner is well documented.46 Indeed, the "higher" stages of professionalization are charac- terized by this development and by the conflicts within the developing profes- sion and with outsiders that this inevita- bly generates. According to Wilensky97 and Pipkin and Rifkin,48 a pecking order emerges that stratifies practition- ers and creates conflict and internecine struggles between new and old cohorts of practitioners, and between practition- ers of the new occupation and other occupations who claim the same terri- tory. These final stages of professional development typically involve the for- LITIGATION 244 (San Francisco, Jossey-Bass, 1984) 43. Id. at 250. 44. Id. 45. Hay, Carnevale, and Sinicropi, Professionah zation: Selected Ethical Issues in Dispute Resolu tion, 9 JUST.SYS.J. 228. 236 (1984). 46. Gellhorn, Abuse of Occupational Licensinc 44 U.CHI.L.REV. 6, 39 (1976). 47. Wilensky, supra n. 36. 48. Pipkin and Rifkin, supra n. 17. TITX 0022251 ~
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Focus The D.C. Multi-Door Courthouse by Linda J. Finkelstein W hen Chief Justice Warren E. Burger asked Professor Frank Sander of the Har- vard Law School to present a paper to the Pound Conference in April 1976, he was unaware that he was providing a forum for the first discus- sion of the multi-door courthouse con- cept. The central thrust of Professor Sander's paper was the proposition that a variety of case processing options should be available to the public. Profes- sor Sander identified the need for a mul- ti-faceted "Dispute Resolution Center" where disputes would be analyzed and directed to the most appropriate forums. The Young Lawyers Division of the American Bar Association reprinted Pro- fessor Sander's paper in Barrister, and gave his concept a name: "the Multi- Door Courthouse." Five years later, David R. Brink, during his tenure as President of the American Bar Associa- tion, suggested to the ABA's Special Committee on Alternative Means of Dis- pute Resolution that it undertake an action-oriented dispute resolution pro- gram. He and Ronald L. Olson, Chair of the Special Committee, recommended an experimental Multi-Door Courthouse Program, and the Special Committee took all the next steps. Committee members selected the Dis- trictof Columbia, Houston andTulsa to be Multi-Door project sites even before the Multi-Door Courthouse idea was fully developed. "It was a bit of the `do- ing-and-thin ki ng-abou t-i t-af terward' approach," comments Professor Sander. "But that may have been the only way. Had we analyzed all the potential prob- lems and pitfalls at the beginning, we might never have gotten started." With the full backing of the ABA, but with no identified funds to ensure full implementation support, the three Mul- ti-Door Courthouse projects got under- way in 1984. As part of a much larger national effort to expand the traditional justice system by acknowledging the validity of alternative methods of resolv- ing disputes, the Multi-Door Courthouse brings the court itself, and city and county bar associations, into the national reform effort. The court, by offering alternatives, and the bar, by promoting them, further legitimize the notion that litigation is not always the best nor the only approach to conflict resolution. The District of Columbia's Multi- Door Courthouse is the D.C. Superior Court-a large, urban trial court with jurisdiction over all local legal matters. Implementation of Multi-Door involved a dual commitment by Chief Judge H. Carl Moultrie I and the court to the D.C. community: first, the court would in- crease the range of options it offered citi- zens in the resolution of their varied dis- putes and, second, it would acquaint them with the various alternatives avail- able, helping them select the most suita- ble processes and programs. An essential element of the District's Multi-Door effort is a sophisticated screening and referral operation that is both visible and accessible to the public. With over 40 dispute resolution pro- grams operating in the D.C. community, citizens are rarely aware of the options available to them. Even many justice sys- tem officials are unaware of the variety of dispute resolution alternatives. Intake centers As a first step in developing the D.C. Multi-Door Program, the Superior Court opened two Intake Centers in January 1985 to serve at the hub of the city's dis- pute resolution network. Located at the places people go when they are involved in disputes-the courthouse and the D.C. Bar's Lawyer Referral and Information Service-the Centers educate people about alternative programs and services. The basic tool of Intake Center staff is a comprehensive referral manual which includes descriptions of over 300 dispute resolution, legal and social service pro- grams in the D.C. community. With general information about dispute reso- lution techniques and specific informa- tion about basic services, eligibility stan- dards, and operational procedures of individual programs, Intake Specialists familiarize disputants with their optiorts, suggest the best approach for the resolu- tion of particular disputes and recorn- mend specific programs which are poten- tially of greatest use. For example, a person involved in a dispute regarding the failure of a car dealer to repair a new car might be referred to a program that provides mediation services to automo- bile dealers or manufacturers and new car purchasers. A person seeking changes in a custody or visitation agreement might be referred to the court's new Domestic Relations Mediation Program. In the first nine months of operation, the Multi-Door Intake Centers served over 2,250 people involved in a variety of disputes from child support and custody to unpaid loans, automobile accidents, home repairs, property damage, and contractual obligations. About 75 per cent of the people seeking help were referred to alternative programs such as university and law school clinics, govern- mental conciliation and arbitration pro- grams, court-based mediation and arbi- tration, consumer action programs, business-sponsored mediation, and com- munity-based mediation and arbitration. New programs Two new dispute resolution programs have been initiated by the court as part of its commitment to the Multi-Door exper- iment. The first, started in April, offers mediation of small claims cases either as an alternative to filing a lawsuit or as an alternative to appearing before a judge on the day of trial. Multi-Door staff inform potential litigants about the me- diation option when they come to file a case in the Small Claims Branch of the court. If the would-be plaintiff is inter- TITX 0022258 305 I
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mation of associations which seek the support of law to impose licensure re- strictions on practitioners arid thus pro- tect the territory from outsiders and ex- clude the unqualified and unscrupulous. At some point in this process, the profes- sion codifies its rules 4 r•thic, as a basis for self-regulation. If the alternatives atmement de%elops in the direction of licensure, the impetus is likely to come from public agencies that employ mediators and which must decide, in making employment deci- sions, who is qualified to be a mediator. California and other states with publicly supported mediation programs chose to specify formal training and degrees. Rather than specify the kind of degree a person had to have to be a mediator-an approach that is bound to engage the agency in a highly charged and broad- based turf battle between lawyers and those in the healingprofessions-Michi- gan chose instead to specify the skills that a mediator had to possess. This approach may only serve to cam- ouflage the conflict by specifying skills that go with a certain kind of education. .NIoreover, the likely result of specifying skills is the establishment of an industry offering to provide eager practitioners with such skills. There is still the prob- lem of ensuring that practitioners actu- ally possess the skills that their degrees advertise for them. Thus, either the teach- ers that train practitioners in these skills (or their schools) may have to be licensed (the same old problem), or practitioners will have to be tested. This raises the difficult question of whether it is possi- ble at this time to do skills testing of dispute resolution practitioners. «e believe that it is possible to devise and administer a skills test that could effectively screen for basic mediator com- lxtency and ethics. Any such test would hatie to be carefully pretested andadmin- i,tered with flexibility, however, so as not to > exclude practitioners on the basis of lt'gitimate differences of theory or style. Certification and training 1 compromise between full-scale profes- sionalization with licensure and no pro- t<'Ssionalization at all would be the estab- li,hment of certification and training programs for dispute resolution practi- _.---- utl9 tt-~, Carnevale and Sinicropi, supra n. 45, at tioners. Certification would indicate that the certified individual met the criteria established by the certifying organiza- tion, and so provide potentially useful information to users, but would not bar practice by non-certified persons. Al- though the same problems of defining good practice and skills testing exist with certification as with licensure, the absence of any occupational exclusion- ary power minimizes the problem. Many flowers can bloom and the public may learn to identify the flowers and choose among them. This appears to be the approach favored by the Ethics Commit- tee of the Society of Professionals in Dis- pute Resolution, although the commit- tee took no formal position on licensure, certification or training.49 A form of certification program for arbitrators, pursuant to which lists of arbitrators certified as meeting minimum criteria are made available on request, is currently administered by the American Arbitration Association and the Federal Mediation and Conciliation Service. Similarly, the Center for Public Re- sources and the american Arbitration As- sociation provide lists of prominent me- diators and private judges. But certifica- tion or listing by these organizations is based essentially on recommendations or number of cases handled. There is no attempt at testing, and no effort to train those certified or to monitor their perfor- mance. Only a serious violation of ethi- cal rules will cause a listed arbitrator to be removed from the AAA or FMCS lists. A different approach to certification is offered by educational programs that offer training in dispute resolution skills, and certification based on that training. Some of these programs are university- based, others are free-standing. Some last as long as a year, others no longer than a weekend. Many of these programs do not attempt to evaluate the compet- ency of participants, and others certify everyone who completes the program. Hence, there is apt to be little correlation between possessing a certificate from some of these programs and possessing the certified skills. Despite those shortcomings, certifica- tion, together with the operation of mar- ket forces and legal liability for malprac- tice, appears to be a better approach than licensure for the dispute resolution field at the present time. Notwithstanding problems at the edges in defining ;tan- dards of good practice and ethical litnita- tions, and in ensuring quality training and monitoring of certified practitioners, certification by responsible organizations and well-established and operated train- ing programs may be of some help to the inexperienced consumer. Licensure, on the other hand, adds little to certification in the way of consumer protection, and creates the very real danger that in enforc- ing licensing rules, professional self-in- terest will predominate over consumer protection. Whichever approach is taken, given the conceptual ferment in this field, it is important that standards and norms not be viewed as immutable pre- cepts, but as subject to experience, debate and modification. Conclusion The alternative dispute resolution move- ment is at a critical turn in the road. After 10 years or so of scholarly inquiry and practical experimentation, our knowledge of the field has been substan- tially enhanced and there is a far greater awareness, both among the general pub- lic and in the legal community, of the promise of alternative dispute settlement. What we need now is a multi-pron,ged effort to expand our limited present understanding of the field. This will require continued experimentation and research, as well as further attempts to conceptualize the field. It will necessi- tate enhanced public education about the benefits to be derived from alterna- tive modes of dispute settlement. Ways must be found to develop career paths and employment opportunities for tal- ented individuals who wish to devote their lives to providing alternative dis- pute resolution services. This will prob- ably require, at least in the short run, some infusion of public financing. Above all, if the movement is to hold any signif- icant promise of gaining a permanent foothold on the American scene, it will require the broadened involvement and support not only of the legal and legal education establishments but also of the society at large. 0 STEPHEN B. GOLDBERG is a professor of law at Northwestern University. ERIC D. GREEN is a professor of law at Bos- ton University. FRANK E. A. SANDER is a professor of law at Harvard University. TITX 0022252 299 I
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ings and efficiency, coopted the process begun by others seeking humane values in the resolution of di.iputes? Thus, the timingof interest in dispute resolution is propitious..'.ctivists, theor- ists and practitioners alike have come to understand that courts and court-like adjudication is not the unl~, wav to resolve a dispute. Given the many differ- ent ways disputes can he resolved, we should consider, study and, in the law schools, teach about all of them so that dispute resolvers-lawyers, judges and clients-can make intelligent judgments about which forms to use and why. Most important, we can begin to ask, as Lon Fuller did in 1962, what are the different moralities of each dispute resolution device (p. 248), and what are the social, political and jurisprudential effects of choosing one form or another. Our con- sideration of these issues will be greatly enhanced by works like Dispute Resolu- tion which brings these themes and issues to the forefront of our attention, rather than at the periphery such as in speeches, instead of cases, in digressions in civil procedure instead of in courses on dispute resolution, and in sidelights in litigation training rather than train- ing of its own. ", Emerging themes Goldberg, Green and Sander have worked hard and fast to produce this first text in dispute resolution. They have provided an excellent overview of the primary and hybrid processes, and have identified the major themes and policy issues presented by this confluence of interest from many different quarters in dispute resolution. Since they have taken the plunge and gone first with their choices about how to treat this material, it will be easier for those who follow to 7. Only recently have such trial trainingorgan- izations as the National Institute for Trial Advocacy (XIT.\) begun to offer training in such dispute resolving skills as negotiation. 8. Supra n. 3. 9. Mnookin & Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L. J. 950 (1979). 10. See my own arguments about the weaknesses of the claims of those who favor adjudication in \Ienkel-Meadow, For and Against Settlement: For What Purpose the Mandatory Settlement Confer- ence!, 33 UCLA L. REV. 301 (1985). 11. See for example the useful teaching exercise contrasting arbitration and mediation in Riskin, .tfediation in the Law Schools, 34 J. OF LEGAL EDCc. 259, 265 (1984) and the experimental studies of Thibaut &Walker, PROCEDURAL JUSTICE: A PSY- CNOLOGICAL ANALYSIS (Melbourne, FL: Krieger, 1975). see what works and what doesn't. As a friendly critic I will explore their major themes, organizing principles and choices with an eye toward seeing how Dispute Resolution best can be used in teaching about the core activities of dis- pute resolution. The first organizing principle appears to be the order they chose for exploring dispute resolution processes. The au- thors begin with the most voluntary, two-party form of negotiation and move to increased roles for third party interve- nors and more compulsory processes in dispute resolution-mediation, adjudi- cation and arbitration. These are what the authors identify as the "primary" processes: the pure forms with relatively clear roles for the participants-direct negotiators, facilitators and deciders; with variations on those themes. The authors then move to the hybrid pro- cesses: variations and combinations of these primary forms- the negotiation/ adjudication/arbitration of the mini- trial, summary j ury trial, med-arb, spe- cial masters and expert fact-finders. Perhaps if the authors had begun with adjudication they might have provided another focus and a somewhat easier way for novitiates in this field to under- stand it. Students, for example, will, in the present world, still know more about adjudication than any of the other pro- cesses and it would be useful, therefore, to introduce other forms of dispute reso- lution in juxtaposition to what students have come to see as the "norm" or core concern of dispute resolvers. The conceptual material for looking at adjudication first is rich and might best introduce dispute resolution by ex- amining such works as Lon Fuller's "The Forms and Limits of Adjudica- tion,"8 Mnookin & Kornhauser's "Bar- gaining in the Shadow of the Law"9 and the excerpts from the Council on the Role of Courts study (p. 176). These materials would raise important ques- tions about just what it is that courts and adjudication offer that we have come to regard as central to our system of justice -why do we place so much trust in a third party decider? When do the parties know better than the neutral? When do we need public articulation of rules and publicly viewed processes? When are court results and procedures too rigid and limited for the problems presented? With students probably already com- mitted to the values adjudication is in- tended to express, these questions would be answered best by exploring them first. Then the weaknesses of both the value claims and the empirical claims about courts can be gradually explored.to A transition from adjudication to arbitra- tion at the beginning would be a useful teaching illustration of how easily the "core" shifts and becomes the periphery because it fails to meet all needs (such as when the disputants move to arbitration from adjudication so they can exercise some control over choosing the adjudi- cator and softening the evidentiary rules). Pedagogically, the contrast between ad- j udication and other forms of dispute resolution early in the study would raise students' consciousnesses about the sub- tle changes in form and what different processes attempt to accomplish." As the different processes are presented in the book, there is a need for more con- ceptual organization and questioning about the very deep issues that transcend form. One could ask of each form, for example, if it is an expression of the quali- tative side of dispute resolution (the hope for better solutions, greater party partici- pation) or quantitative dispute resolu- tion (more disputes can be handled more easily, cheaper, faster this way). As Fuller suggests, what are the moralities of each form? Does mediation place a higher value on agreement and peace as Fuller and Fiss suggest where adjudication and arbitration place a higher value on the rule of law and "justice?" My own view on this important ques- tion is that it is not a simple question of form-both forms express both values, depending on the nature of the dispute, who the parties are and who the third parties are. But organizing the material to probe this question repeatedly with respect to each of the surveyed topics might deepen students' understanding of the why's, as well as the how's of dis- pute resolution processes. Conceptual guideposts Any book which attempts to present as much material as this ambitious work does ought to provide those conceptual guideposts and recurring themes that take the reader through the underlying structures that organize the many ex- cerpted materials. Thus, my own taste TITX 0022254 301
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to the profession will educate their cli- ents, their seniors at the bar and bench, and more importantly, their adversaries in disputing. I have already seen the fruits of such labors as students of mine join law firms with a commitment to exploring other .vays of disputing. The crucial issue in the teaching of dispute resolution is to make the "peri- pheral" concern of ADR a "core" con- cern. To the extent that ADR is tacked on as just another class in civil procedure or torts, students will continue to see courts and trial and appellate adjudication as the core legal activity.lVlore importantly, while the reading of cases does teach the skill of "thinking like a lawyer" in lit- igating by teaching how to select the relevant, how to distinguish one situa- tion from another, a complete education in dispute resolution must include other skills-such as conflict resolution, fact investigation and preparation, question- ing, judgment, problem solving and empathy training, to name a few. For those who seek to specialize in particular fields, such as environmental or family dispute resolution, skills must be com- bined with complex substantive knowl- edge (technical and psychological respec- tively) and legal information. This means that dispute resolution must be taught pervasively in all courses and must be integrated into the process and substantive concerns of all areas of law. Thus, discussions of changes in pro- ducts liability policy should include dis- cussion of mini-trials and the Asbestos Claims Facility. Contracts courses should treat the issue of preventive conflict reso- lution by discussing and engaging in the drafting of dispute resolution clauses, exploring the differences between arbi- tration, mediation or "good faith" nego- tiation clauses.29 Advanced courses will be necessary, too, since skills training in these areas (negotiation, arbitration award drafting, mediation facilitation, mini-trial presentation) requires close supervision and the opportunity for re- peated behavioral exercises. Dispute Resolution is a good first en- try in the field for many of these pur- poses. It probably will most often be used in the single advanced course in dispute resolution, but it should be used pervasively in first year courses and other specialized courses (family law, en- vironmental law, and commercial trans- actions, to name a few) to illustrate the use of dispute resolution mechanisms in the making of the law and the ordering of social and legal relations. The book will need to be supplemented for skills training purposes, but the last chapter provides nine excellent disputes for use in simulation exercises or simply for class discussion. The authors have written a teacher's manual90 to assist the interested teacher in developing either a survey course or a more specialized course in one of the par- ticular dispute resolution processes. The teaching of "alternative dispute resolu- tion" in most law schools is evidenced by a recent survey of the ABA Council on Legal Education, and conferences on the teaching of dispute resolution sponsored by the American Arbitration Association and the American Association of Law Schools.31 One interesting sociological question to which attention should be paid in this context is who is doing this teaching? To what extent are the "core" subject teachers working in this area and to what extent have we created another "marginalized" entry into the legal cur- riculum? It is no accident that in some schools the ADR teachers are the keepers of the '60s flames, either in their com- mitments to access issues or clinical edu- cation methodologies. It seems to me that with the pervasiveness of disputes in our social and political lives, issues in con- sidering how we should best resolve disputes-public, private, large and small-is central to our concerns in creat- ing and maintaining a legal system, both from a proceduralist and substantive per- spective. Thus, we cannot afford to leave these important issues to the periphery of our curriculum. Conclusion Goldberg, Green and Sander have sug- gested an enticing and stimulating re- search and teaching agenda for those interested in both the quality and effi- ciency of justice: we must evaluate em- pirically the claims made on behalf of ADR. Are disputants differentially satis- fied with different processes? Do they comply better with the more voluntary processes? What new hybrid forms will emerge from the primary forms or "old" hybrid forms? Whose interests will they serve? Will ADR itself become so bureau- cratized that there will soon be alterna- tives to ADR, or, as is already emerging, will there be a plea to return to the more standard forms of adjudication?g2 How will a broader conception of what it is appropriate to teach students about dis- pute resolution effect our daily transac- tions and, perhaps more importantly, our international transactions? The National Institute for Dispute Resolution has funded some important research projects and curricular experi- ments to begin working on these ques- tions and others. Organizations as di- verse as the Center for Public Resources, a consortium of business lawyers, and the Federal Judicial Center are engaged in studying and providing training pro- grams to both those in the public and private sectors who are pursuing dispute resolution both within, and outside of, conventional court structures. Dispute Resolution by Goldberg, Green and Sander heralds the earnest study of dispute resolution in the law schools. This "new" field is still in a state of flux with many important issues to be addressed-public accountability, segregation of dispute resolution struc- tures, quality of justice vs. efficiency of justice concerns, standardization or bu- reaucratization vs. flexibility and open- ended creativity in new institution build- ing, compulsory vs. voluntary processes, power imbalances and the relation of informal procedures to our formal rule- making structures, to name a few. But the formal introduction of these issues into legal scholarship and legal educa- tion is to be welcomed. I applaud this first entry into the field as we begin to watch the further development of the emerging issues in dispute resolution as all forms of dispute resolution penetrate the core of adjudication, now taught and conceived as the "only" worthy form of dispute resolution. 0 29. See Gray, Dispute Resolution Clauses-Some Thoughts on Ends and Means, 2 ALTERNATIVES 12 (1984). 30. Goldberg, Green & Sander, TEACHER'S MAN- UAL POR DISPUTE RESOLUTION (1985). 81. ABA Section on Legal Education and Admis- sion to the Bar, Survey on ADR Courses in ABA Accredited Law Schools (1985). The AAA confer- ence was held Oct. 4-5, 1985 in New York and the AALS Workshop on ADR was held on January 4, 1986 in New Orleans. 32. Resnik, Managerial Judges, 96 HARV. L. REV. 576 (1982) and Resnik, Failing Faith: Adjudicatory Procedure in Decline, U. CHI. L. REw. (1986). CARRIE MENKEL-MEADOW is a professor at the UCLA School of Law. 304 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022257 k t
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ented. In acEdition, there are ~ome diffi- cult questions that mttst be addressed such as whether the multi-door court- house should bea centralized institution under one roof, or more akin to a wheel, with a core operation at the center, sup- plemented b,: satellite intake and referral offices. .lnother critical rlttestion- whether the refenal should he manda- tory or voluntary-is discussed below. Institutionalization It should be recognized that the multi- door courthouse is but one form of pub- licly provided alternative dispute resolu- tion. The issues surrormding the public institutionalization of alternatives, or their private provision through public funding, are vital issues that warrant further discussion. The case for public institutionaliza- tion of alternatives rests on a number of propositions. Since courts are publicly provided, why should an alternative pro- cess that might be more effective in partic- ular cases not be publicly provided? Un- less it is, society creates a financial disin- centive to the use of the more effective process. Moreover, for better or worse, the courthouse is where most American citi- zens ultimately go if they cannot other- vcise resolve their disputes. Hence, from the point of view of public education and exposure, as well as enhanced credibility, governmental provision of alternatives in the courthouse itself may be essential. The question of mandatory use of al- ternatives raises different issues depend- ing in large part on the effect to be given to the mandated process. As indicated earlier, coercion into mediation does not seem objectionable, as long as there is no coercion in mediation to accept a partic- ular outcome, and as long as unsuccess- ful mediation does not serve as a barrier to adjudication. Similarly, we perceive no persuasive objection to mandating non-binding arbitration as a precondi- tion to litigation for small or middle-size money claims. If, however, participation in mandatory mediation or arbitration 12. The National Institute for Dispute Resolu- n°n appears to be well aware of the problems of 1n,titutionalizing successful programs. Lacking hr tund, to achieve that goal itself, it has attempted u,e its limited resources to leverage public-sector -md uther private-sector funds. ?s. Edelman, Institutionalizing Dispute Resolu- '-n.9/ternatives.9 JUaT.SYS.J. 134 (1984). 11 . ',tarks, johnson and Szanton, DISPUTE RESO- ~ t r1p"' tN A.NfERICA: PROCESSES IN EVOLUTION 69-74 ~%-t,hington, D.C.: National Institute for Dispute were to bar access to the courts, serious constitutional questions would be pres- ented. Inasmuch, however, as no pro- gram for the mandatory use of alterna- tives has this effect, the more realistic question concerns the extent to which the outcome of a mandatory alternative should be allowed to affect the adj udica- tion process (e.g., by financial precondi- tions on resort to court or use in court of the non-court result). Public institutionalization of alterna- tives involves their public funding; that is a powerful additional argument put forward by the proponents of institu- tionalization, who are all too mindful of the fact that private foundations are con- stantly searching for novel experiments, and are usually not interested in facili- tating the continuation of successful pilot programs.sz But public funding does not necessar- ily imply public provision of dispute resolution services. Governments might make grants to private organizations; this is the path taken by New York State, which supports more than 30 privately operated community dispute resolution programs in the state. Texas, meanwhile, has developed a novel path for raising public funds for alternative dispute reso- lution; it has authorized counties to add a surcharge to the civil filing fee, with the accumulated funds to be used to fund alternative programs. The possibility of federal funding for dispute resolution programs was at least temporarily aborted when the Dispute Resolution Act of 1980 was not funded. Institutionalization, whether public or private, carries with it potent dangers. Any attempt to make an experiment permanent and larger in scale is likely to result in increasing bureaucratization.93 As the proportion of volunteers declines, the exuberance and excitement that initi- ally pervaded the project may give way to routinization and burnout. Particu- larly where public funds are involved, bureaucratic job requirements are likely to be imposed, and political influences Resolution, 1984). 35. American Bar Association, DISPUTE RESOLU- TION PROGRAM DIRECTORY (Washington, D.C.: American Bar Association, 1983). 36. Wilensky, The Professionalization of Eve- ryone?, 70 AtiI.J.Soc. 137 (1964). 37. Pipkin and Rifkin, The Social Organization in Alternative Dispute Resolution: Implications for Professionalization of Mediation, 9 JvsT.SYS.J. 204, 205-206 (1984). may come into play. Whether an innova- tive program can withstand "success" by effectively making the transition to insti- tutionalization may well be the ultimate test of the program. A final question concerns thecompet- ing claims of alternatives and the courts for limited public funds. Ideally, the funds should go to that system which is more cost effective or qualitatively su- perior. But, as was noted earlier, we are only beginning to accumulate adequate sophisticated data to help make that j udgment. Pending obtaining that data, we need to hedge our bets by encourag- ing experimentation with alternatives, coupled with careful research to deter- mine their effectiveness. Professionalization As the practice of dispute resolution out- side the courts expands, the question arises how to ensure high standards of practice and ethical behavior. A related question is how prospective users can find high quality dispute resolution ser- vices suited to their needs. These questions urgently require an- swers. In recent years, the number of per- sons and organizations offering media- tion and other dispute resolution services has increased significantly. In addition to a dozen or more national and regional organizations that offer a broad range of dispute resolution services,3' there are over 180 local mediation programs,gs Further, both lawyers and other profes- sionals are more often offering media- tion as one of their services. Ensuring high standards is also impor- tant at this time because the alternatives movement is in the early stage of profes- sional development. According to Wilen- sky'sS6 typology of the steps through which "occupations" pass on the way to becoming "professions," the alternatives movement is in the stage of professional- ization in which people work at the occupation full-time, practitioners press for the establishment of training schools, enthusiastic leaders emerge who are the protagonists of some new technique, and activists engage in much soul search- ing on "whether the occupation is a pro- fession, what the professional tasks are, how to raise the quality of recruits, and so on." As this occurs, there is "a self- conscious effort to define and redefine the core tasks of the occupation, "" and a TITX 0022250 297
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tions for program outcornes, in a manual entitled Introducing Court Arbitration: A Policymaker's Guide.'s Below I briefly summarize this material, highlighting the most significant design features. What cases should be eligible for the program? Most programs are limited to money damage suits that fall below a specified dollar amount. The higher a program's jurisdictional limit, the greater the proportion of the caseload that may be diverted from the trial calen- dar, and the greater the potential for re- ducing congestion on that calendar. 15. Rolph, 1NTRODCCIVG COtiRTARBITRATION: A PoLICY11t.iReR's Grtoe (Santa Monica, CA: The Rand Corporation, 1984). 16. Plaintiffs' attorneys may bypass arbitration because they wish to delay setting a value on the claim, because they want to send a signal to the defense regarding the strength of their position, or because they object to the program per se. 17. Multiple-arbitrator panels are often con- structed to represent plaintiff and defense perspec- tives, which may lead to greater acceptance of their decision. II'ho should determine eligibilityl In the normal court routine, the court does not attempt to determine the dollar value of a suit, and the plaintiff's own assess- ment has a strategic purpose, which raises questions about its accuracy. If court personnel assess case value, they can be assured of diverting most eligible cases to arbitration, but the time they must take to do so increases court costs. If litigants (e.g., the plaintiff's attorney) assess eligibility, a considerable number of cases may evade the program16 and be placed on the trial list, but the court will be spared additional expense. What qualifications should be re- quired of those who volunteer to serve as arbitrators? If arbitrators are required to have extensive andi or specialized expe- rience (e.g., at least five years of personal injury trial experience), then they are more likely to deliver awards that are satisfactory to other practitioners. But ilar programs in the private sector indi- where attorneys are offered the choice cates that trial attorneys, when selecting between arbitration (evaluation) or medi- between binding arbitration and profes- ation, the courts may be persuaded to sional mediation, select mediation more provide mediation as an option. Then, than 75 per cent of the time. This obser- they may need to identify lawyers who vation is based on our experience with are qualified and prepared to serve as thousands of cases where representatives mediators. Perhaps a selected group of of the AAA have been authorized by lawyers will require specific training in insurance companies to offer that option mediation skillsi to claimant attorneys.3 In my recent book, ProfessionatMedi= True, the setting is somewhat different cetion of Civill}osputes,4 I suggested that in a court program. AAA representatives the creation of a profession of Certified are offering the choice of binding arbi- = PublicMediatcraswouldofferlawyersan. tration before an experienced trial attor- alternative c~aree5r, in addition to provid- ney or mediation with a trained, profes- ing the courts with an attractive, off- sional lawyer-mediatoL Nevertheless, the budget, auxiliary service. If my expecta- preference expressed by daimant atttnr- tion about the evolution of court-admin- neys towards mediation appears consis- istered arbitration is acauatte, mediation tently throughout the United Sttatres. programs will appear in' the courts in If a similar preference becomes re- coming years. If lativyers prefer media- flected in court-administered programs tion, as our experience in the private 3. American Arbirratiou Aasociation ADR IInsu- rance Program caseload stapstics for October 1, 1984 through October $1. 1985. sector would-indicate, there is no reason for courts not to offer that service. Many members of the bar are acquir- ing experience attd training as mediators 4- Cwulson, pROessszoN,,wL Mzsunort oF crvn, and are looking for fields in which to DtsrctTFS(lsiecvYork:AmericanArbftraticmAssoci- ation, t984). practice those sfGillE.$ Mediation is the the candidate pool will be limited, and the supply of arbitrators may therefore be insufficient to hear cases in a timely fashion. If qualifications are loose„ the supply will be greater but the decisions may be less acceptable, leading to more appeals for trial. How many arbitrators should decide a case? If only one arbitrator is required to hear each case, it will be easier to admin- ister the program and easier to meet the demand for volunteer arbitrators. But attorneys may be more inclined to ques- tion the decision of a single arbitrator, leading to a higher rate of appeal. If three or five arbitrators are required, the task of administering the program will be greater, and the per case costs for arbi- trator fees may be more, but practition- ers may be more inclined to accept the arbitration outcome." Who should select the arbitrators to hear each case? If the attorneys have diated under the AAA's insurance alterna- tive dispute resolution program, nine out of 1Q are settled. This compares favorably with the settlement record of court: ad- ministered arbitration programs. Moreover, the quality of the mediation process is better than court-administered arbitration where the award is based on a perfunctory presentation by the parties and an evaluation by a panel of three non-specialized lawyers. In' mediation, the parties have an opportunity to discuss the issues at tlteir, leisure, reaching ann agreement that reflects a m utxtally accept- able compromise... The clients themselves are more involved in mediation than they would be in an arbitration hearing. I believe that court-administered arbi- tration programs will evolve inevitabiy towards mediation. The mec}iators,will be lawyers who have become specialists in-dispute resolution. They will operate under the overall supervision of the local courts. This will constitute one long step towards a new profession of Certi- fied Public Mediators. O 5. Atnerican>sarAssoc,'ation.spaciafcomrrtitma- s'Ieepinggiantofaltematiitedisputereso- on Alternative MeansoE Dispute ResKotution. At rz14 lttti€!n. ~ ex ICnce would NATiVg DrSYUT6 RE.40LUTIQN': WHO'S INGHAA6E.OF Again, ~ .'E~O@ERT COULSONiB arwideltt'Otths/4~t- MIDUrlotv? (Washingwn. D.G.: 1982). eonfirnithatnotml[.Inca3esactuallyme- 1Carr/lrEtitration Rssocietion. TITX 0022230 277
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ested in mediation and the second party agrees to participate, mediation is sche- duled within a few days. Small claims litigants are also offered the opportunity to mediate on their trial date. Fifty volunteer mediators, selected from over 220 applicants, handle small claims cases with each mediator serving in the court about once a week. The volunteers, who agreed to mediate for a one-year period, participated in an in- tensive mediation training program. Program mediators include attorneys, re- tired government officials, teachers, stu- dents, law enforcement officials, busi- ness men and women, and sociologists. In seven months, over 1,550 small claims cases entered mediation, and about 60 per cent of the cases were resolved through the mediation process. In November, the court initiated a Domestic Relations Mediation Program to deal with such matters as custody, support, visitation and personal prop- erty distribution. The court also pro- vides free mediation services to parties seeking Civil Protection Orders after a judge has issued the CPO and details of the order need to be worked out. Thirty volunteers have been trained to mediate domestic relations disputes. Most of them are attorneys or mental health profes- sionals, and many have had previous experience as mediators. Funding Funds to operate the Intake Centers and the Superior Court's two new mediation programs through January 1987 were raised by the American Bar Association, its Special Committee on Dispute Reso- lution and the District of Columbia Bar. When grant funding expires, all services will be continued by the court and pro- vided to the public as part of regular court operations. In both Tulsa and Houston, where the Bar Association is the Multi-Door pro- ject sponsor, revenues from court filing fees will underwrite some or all future Multi-Door costs. In Houston, funds raised from a $5 fee imposed on civil case filings in Harris County are spent on alternative dispute resolution, with a large percentage of the funds underwrit- ing Multi-Door Program costs. In Tulsa, the recently enacted "Dispute Resolu- tion Centers Act" provides that $2 will be added to the filing fee for probate, small claims, domestic relations and general civil cases. Beginning in the spring of 1986, the Oklahoma State Court Administrator will use the funds to issue awards to city and county juris- dictions to operate dispute resolution programs. The Tulsa Multi-Door pro- gram will be one applicant. The future What lies ahead for the Multi-Door pro- grams? Experimentation with dispute resolution alternatives and the develop- ment of additional court-based pro- grams. For example, the District of Co- lumbia plans four new programs. If funds are available, the programs will start in 1986 and 1987. The first is an experiment designed to accelerate the resolution of major civil disputes. Two judges, working closely with a consultant with broad knowledge of dispute resolution techniques, will try a variety of alternative ways of resolving disputes. Results will be closely moni- tored. Other civil judges will then be asked to join the experiment and try the techniques that have proven effective in the court. At the conclusion of the experimental period, results will be shared with all judges. Successful techniques may lead to rule changes, encouraging further ex- perimentation and the expanded use of alternatives. Second, a mediation program for mi- nor criminal, delinquency and PINS (Persons in Need of Supervision) cases will be offered. The agreement of pro- secutors will be sought to ensure routine diversion of certain types of criminal, delinquency and PINS cases from the criminal justice system into mediation. In appropriate delinquency and crimi- nal cases, enforceable restitution con- tracts will be worked out between the parties. In PINS cases, the mediation sessions will typically involve multiple parties: the juvenile, family members and school officials. Third, an experimental program will be conducted to test the impact of man- datory arbitration in the District of Co- lumbia. About 200 civil cases will be assigned, at random, to arbitration, and the cases will be heard by court-certified arbitrators. Cases will be carefully moni- tored, and data will be evaluated to determine client and attorney satisfac- tion, preparation and case processing time, cost, length of arbitration sessions, trials de novo, and other outcomes. The findings will assist the court and the D.C. Bar in determining the feasibility and structure of a permanent mandatory arbitration program. Finally, a series of mediated meetings will be held to establish an interagency plan to address the special education needs of many of the city's adjudicated youth. In studying the implementation of the Education for All Handicapped Children Act of 1975 (P.L. 94-142) in the District of Columbia, the General Ac- counting Office issued a report recently which noted that large numbers of adju- dicated youth are not afforded special education opportunities and that coordi- nation among the involved city agencies is a contributing factor. Accordingly, a series of meetings modeled af ter the Mass- achusetts town development plans will be held with key agency and advocacy representatives participating. The goals include development of a plan for place- ment of adjudicated youth into special education programs, determination of needed resources, development of a plan to secure such resources, and establish- ment of a system to handle conflicts aris- ing from special education placements. In the future, the Tulsa and Houston Multi-Door programs, like the D.C. Multi-Door Courthouse, will expand the public's dispute resolution options. Additional new "doors" will open offer- ing more and more alternatives so long as there is a public need. At the same time, the Multi-Door Courthouses will strengthen links to community programs to ensure the continued viability of dis- pute resolution systems. The alternatives movement, begun by members of the legal establishment, seems to be coming into its own. Citizens, state legislatures, law schools, court sys- tems and area bar associations have joined individual judges and attorneys in a reform effort that seems destined to im- prove the justice system. The three experi- mental Multi-Door Courthouses may well become models for courts through- out the nation if the current trend con- tinues and the public response to the availability of alternatives intensifies. 0 LINDA J. FINKELSTEIN is Director of the Multi-Door Dispute Aesolution Program for the District of Columbia. 306 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022259
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would run toward more topic headings in each chapter-divisions to set off the different theoretical models of negotia- tion, for example, principled negotia- tion, competitive negotiation, styles of negotiation, theoretical models, from other issues like ethics in negotiating. The undifferentiated presentation of many excerpts reinforces some readers fears that there is no underlying struc- ture to this inquiry. Looking at my own field of negotia- tion, for example, the chapter might have more sharply differentiated the lively debate in the literature between different conceptual models of negotia- tion as well as different stylistic choices. The undifferentiated readings reinforce what is to me a dangerous conflation of conception and behavior, where goals and styles may create a more subtle range than a simple dichotomous choice be- tween "cooperative and competitive."1z What is a student to make of these read- ings? Suggestions for tactical choices, understanding of how to choose from competing theoretical models, when to lie-these questions operate on several different levels and the levels are not clearly enough articulated. I understand the need to choose a small taste for a survey treatment, but there is still a need to explore the deeper conceptual issues and to notify the reader when levels change. I would have pre- ferred more theoretical material (Axel- rod, for example,19 on the theoretic im- plications of cooperation as a strategy, Gilligant' on the implications of gen- der-differentiated behavior), some explic- itly skills-oriented material (Fisher & Ury, Bellow & Moulton),ts some mate- rial drawing on the differences in nego- tiating depending on context (i.e. dis- pute negotiation and its differences from transactional negotiations), the role of the client in negotiation, and finally, some philosophical material raising some of the difficult issues presented by negotiation as a form of dispute resolu- tion (is compromise moral, must we/ when should we abandon principles for what other greater goods?).16 I dwell in this field because it is my own, but my point extends to all the dispute processes presented in the book. A more clearly presented conceptual or- ganization with topic headings might better reveal the deeply textured and structured nature of all the dispute reso- lution processes in ways which would clarify and illuminate the issues both for the student and for the teacher and researcher in this area. Thus, the media- tion chapter might benefit from some conceptual markings on the important theoretical differences between, for exam- ple, more therapeutic modelsl7 from case processing models.1e The introduction suggests the themes the authors have set for their inquiry-four different articu- lated justifications or goals for dispute resolution. Each chapter might have been oriented around these themes or reprised through questions after each reading, rather than at chapter's end. Critical and policy issues The authors present an excellent list of critical and policy issues that can be ap- plied across the board to all forms of dispute resolution (pages 13-14), such as noting that the early euphoric advocacy for these "alternatives" has worn off; why hasn't ADR become the accepted core for dispute processing? Should par- ticular forms of dispute resolution be made compulsory or does that destroy the essence of "alternative" dispute reso- lution? Can disputes be prospectively assigned to the appropriate form of dis- pute resolution? Will such dispute "tracking" result in class-based segrega- tions where some forms will be available to those who can pay and others only to those who have few resources? Will the use of private dispute resolution with an emphasis on compromise and accom- rnodation threaten our system of public accountability and rule-making? Will dispute resolution in "alternative" forms become as "bureaucratized" as the pres- ent court system? How should dispute resolution be managedr Should there be 12. See my extended discussion of these issues in Menkel-Meadow, Toward Another t'iew of Legal Negotiation: The Structure of Problem-Solving, 31 UCLA L. REV. 754 (1984); Menkel-Meadow, Legal Negotiation: .4 Study of Strategies /n Search of a Theory, AM. BAR. F. RES. J. 905 (1983). 13. Axelrod, THE EVOLUTION OF COOPERATION (New York, NY: Basic Books, Inc., 1984). 14. Gilligan, IN A DIFFERENT VOICE (Cambridge, MA: Harvard University Press, 1982). 15. Fisher & t'ry, GETTI?!G TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN (New York, NY: Penguin Books, Inc., 1981); Bellow & Moulton, THE LAWYERING PROCESS: NEGOTIATION (St. Paul, MN: Foundation Press, 1978). 16. See e.g., Luban, Bargaining and Compro- mise: Recent Work on Negotiation and Informal Justice, 14 PHIL. & Pua. AFFAIRS 397 (1985); Pen- nock & Chapman, eds., NOMOS XXI: COMPROMISE IN ETHICS, LAW & POLITICS (New York, NY: New separately trained dispute resolvers, new professionals with rrew• skills, or lav people assisting other lay people? How should dispute resolution forms other than court-managed litigation be fi- nanced? What are the implications of private or public financing? These are very important questions. Some are implicitly critical of the alter- native dispute resolution proposals for new forms. Although many of these issues are touched on in questions at the conclusion of each chapter and in greater depth in Chapter 13, "Overcoming Im- pediments to the Use of Alternative Dis- pute Resolution," it seems to me that the critical issues are not sufficiently can- vassed in each of the chapters devoted to the particular processes of dispute reso- lution. The mediation chapter, for exam- ple, should present and deal with cri- tiques of mediation from feminist quart- ers, where it is argued that people of disparate power will abuse each other in informal processes.19 Both the media- tion and arbitration sections should take on the question of hybridization to the point of bastardization of both processes when mixes of role occur, such as when the mediator "suggests" solutions to the point of "deciding" a dispute, and the arbitrator enlists the parties' "participa- tion" in the award to the point of abdi- cating responsibility for the decision. (An issue which is explored well in the hybrid section on med-arb (p. 2.17-268)). My concern here is that the book has something of an advocate's tone-each process is presented relatively blemish free until the questions at the end of the chapter or Chapter 13. A rigorous teacher or student of dispute resolution pro- cesses will prefer to examine the warts simultaneously. Where, one might ask, are excerpts of such trenchent criticisms York University Press, 1979). 17. See e.g., Friedman, Mediation: Reducing De- pendence on Lawyers and Courts to Achieve Jus- tice, in Warner, ed., PEOPLE'S L. REV. 42 (Berkeley, CA: Nolo Press, 1980); Haynes, DIVORCE NIEDIA- TION: A PRACTICAL GUIDE FOR THERAPISTS AND COUNSELORS (New York, NY: Springer Publishing Co. Inc., 1981); Riskin, Mediation and Lawyers, 43 OHIO ST. L. J. 29 (1982). 18. Such as the small claims programs described in the Maiman & McEwen article found at page 123 of Dispute Resolution. 19, See e.g., Lerman, Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women, 7 HARV. W. L. J. 57 (1984); Rifkin, Mediation From A Feminist Perspective: Promise and Problems, 2 LAW & INEqCALITY 21 (1984); Woods, Mediation: A Backlash to Women's Progress on Family Law Issues, 19 CLEARINGHOUSE REV. 431 (1985). 302 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022255
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Community mediation in Massachusetts: lessons from a decade of development by Albie M. Davis Wi th a remarkable burst of c oll;rborative issues have arisen% What trends are occur- energy and an en~ iable inf!rsion of fed- rin,g% In 1985, the Administrative Office eral dollars, coinmunit% rnriiiation was of the District Court of the Trial Court of born in Massachusetts in 1975 with the Jlassachusetts posed these, and other arri%al of the t"rban Court Program in questions, as part of the first phase of a Dorchester. Within a few months of its three-year project to promote the appro- birth, volunteer mediators w°ere trained priate use of mediation within the 69 and successfully demonstrating the abil- district courts in Massachusetts. ity to help their neighbors resolve dis- putes which otherwise might come be- fore the Dorchester District Court as criminal matters. During its first few years, the program was poked, probed and often praised by evaluators and academics from across the nation. It served as a model for numerous neighborhood justice centers and Urban Court mediators conducted training throughout Massachusetts and in other states as well. In 1982, the program died a quiet death, unnoticed by most, except for the program's multiracial group of com- munity mediators. Rather than mourn their loss, they pulled themselves to- gether, formed an association of their own, (Urban Court Mediation, Inc., a sentimental choice) and forged a new partnership with a neighborhood youth program, the Dorchester Youth Colla- borative. These volunteers were deter- mined to keep mediation services avail- able to their community. The birth and death and resurrection of community mediation in Dorchester typifies the power of this simple, straightforward dispute resolution pro- cess to capture the minds and hearts of Bay State residents. In spite of the fact that many predicted the demise of the .%3assachusetts community mediation movement, in particular after the pas- sage of court reorganization and tax re- form legislation in 1978 and the drastic reduction of federal LEAA funds in sub- sequent years, the movement has grown; it has survived. Just what happened to community mediation between the start of the Urban Court program in 1975 and the present? It is alive, but how healthy is it? How many programs are there? How are they organized? How are they funded? What kinds of cases are being mediated? What Need for mediation Samuel E. Zoll, chief justice of the dis- trict court, initiated the Mediation Pro- ject because he realized that "the winner- take-all approach of adjudication is not well suited to resolve many of the dis- putes which are brought to district courts." Every day in Massachusetts hundreds of disputes flare up between neighbors, husbands and wives, land- lords and tenants, parents and children, consumers and merchants and others who are acquainted with one another. Many of these conflicts escalate to the point where extreme dissension or even violence erupts. Sooner or later a good number find their way into one of the district courts. Some of these conflicts have reached the point where the presence of the court is necessary to preserve public norms, set precedent or punish an offender. A per- son with a history of repeated violence against a family member may need a j udicial sanction to understand that such behavior is unacceptable. On the other hand, many cases do not require or even qualify for judicial attention. Fred Babson may be unable to accept that Mary Kincaid no longer wants to live with him, and he may call her con- tinuously at work or at home in an at- tempt to reconcile. Technically he might be guilty of harassment. Rafael Hernan- dez, upon reaching the limit of his patience, may come to court because his next door neighbor, Frank Smithson, continuously parks in the spot which he, Rafael, has shoveled of snow. His anger may be justified, but chances are Mr. Smithson has not violated the law. Interpreting its mandate narrowly, a district court could either move forward on these kinds of complaints, thus trig- gering prosecution, or it could send the parties away. Either option seems fool- hardy. Fred and Raphael, and others like them, are not hardened criminals. They are average citizens caught in a web of all-too-human emotions. Yet, research has shown that the interpersonal dis- putes in which they are embroiled are often the stuff from which future violent crimes arise. People need practical assis- tance in resolving their problems, not litigation or the judicial cold shoulder. Community mediation programs, which train and supervise volunteer me- diators, offer an ideal method for resolv- ing these kinds of disputes, which so frequently come to the attention of dis- trict court personnel. Mediators do rrot judge who is right or wrong: instead they offer the parties a safe and confiden- tial environment to talk freely about their concerns. The mediation process makes room for the expression of emo- tions as well as opinions. Once the causes of the dispute have been fully aired, the natural problem-solving ca- pacity of the people involved is put to work. The question becomes not who wins and who loses, but how will they mend the rift and what kind of a rela- tionship, if any, do they need or want in the future. Current status The potential healing quality of com- munity mediation, plus its ability to promote a positive relationship between the courts and the community, guided the District Court's Mediation Project as it began its work. The first task was to assess the current status of the move- ment. During the first half of 1985, site visits were made to 28 mediation pro- grams (a 29th program was started in November, 1985). Lengthy interviews were conducted with community media- tion program staff. In January, 1986, a 200-page report was published contain- ing profiles on each program and a cross-program analysis. What were the findings from this research? The wide- angle lens shows the existence of one program in 1975 and 29 programs in 1985. The close-up lens reveals addi- tional insights. TITX 0022260 307 I
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As predicted, several programs did die during the late seventies andearly eight- ies. Of these, six were court-affiliated programs supported by LEAA and; or CETA Funds. On the other hand, some LEAA and CETA sponsored programs survived, and sonie of these were also located in the courts, Titi•o of the survit- ing court-based programs, Salem and Framingham, formed private, non-profit corporations which allowed them to seek private funding. Coincidentally, the end of the Urban Court Program in 1982 and its reemer- gence as the Dorchester Mediation Pro- gram in 1983, marked the beginning of a new era of growth. Since that time, 20 new programs have started and no pro- grams have ended. The two major state agencies responsible for the recent growth of community mediation in Massachusetts are the Department of Social Services (DSS) and the Depart- ment of the Attorney General (DAG). Funding DSS has funded nine programs to pro- vide mediation for families with children in need of services (CHIN S in Massachu- setts; PINS. MINS, etc., in other states). DAG funds six programs conducting mediation between consumers and mer- chants and landlords and tenants. Among the other supporters of media- Lion are universities, city governments, private sources, district courts, district attorneys and a housing authority. Over $1.2 million was spent on Mas- sachusetts community mediation dur- ing fiscal year 1985. Thirty-eight per cent of those dollars came from DSS. Private foundations, trusts and corpora- tions, including the United Way, pro- vided 19 per cent of the support. Educa- tional institutions, the Trial Court of the Commonwealth and DAG were the next largest contributors. The range of annual program budgets is $9,000 to $102,000; the average pro- gram operates on an annual budget of $46,750, has 1.4 staff members, handles 195 referrals and mediates 117 cases. In contrast, the budget for the first full year of the Urban Court Program, some 10 years earlier, was $141,000. The average staff size of Massachusetts programs in 1979 was four. (A national study of six potential models conducted by Dan McGillis for the U.S. Department of Jus- tice in 1977 showed an average staff size of six. ) Services provided Form follows funding. The most recent trend in Massachusetts has been toward specialized service and new starts, largely because DSS and DAG saw that media- tion could be useful to their constituen- cies and took the initiative to support programs to serve their clientele. This trend is in variance with New York State, where the unified court system operates a Community Dispute Resolution Cen- ters Program, which has an appropria- tion of over $1.6 million to fund up to 50 per cent of local program budgets. The administrators of the New York program report that they are encouraging pro- grams to consolidate or expand in order to provide general mediation services to specific geographic areas. At present, programs can be divided into six service categories-general ser- vice (a range of services including crimi- nal, civil and juvenile), family (children in need of services cases), consumer (con- sumer-merchant and landlord-tenant), housing development (disputes involv- ing residents of housing developments), restitution (post-trial mediation) and di- vorce. The one program in Massachu- setts which handles divorce is very small; its mediation component is secondary to its research component-it handled only six cases in FY 1985. Interestingly, di- vorce mediation by community volun- teers or consultants is a major aspect of mediation in two neighboring states, New Hampshire and Maine. (Editor's note: See "Mandatory mediation of di- vorce: Maine's experience," by Lincoln Clark and Jane Orbeton, page 310.) Collectively, community mediation programs handled 3,894 referrals and mediated 2,364 cases. Several factors seemed to influence the number of medi- ations conducted by any one program. The Massachusetts experience confinned what national studies have shown- programs which are older, located in densely populated communities, are closely tied to the courts or handle small claims will have higher caseloads. Addi- tionally, those programs which special- ize in mediating CHINS cases, cases which require considerable intake and follow-up, and often are scheduled for several sessions, have lower caseloads than programs svhich handle ~,mall claims or criminal cases. A consistent process While the kind of cases mediated varies, the practice of mediation in Massachu- setts is remarkably consistent. This con- sistency can be traced to the influence of the Urban Court Program. Consultants from the Urban Court trained staff and mediators for the early programs, who, in turn, went on to train mediators for later programs. Urban Court mediators were originally trained by staff from the Institute for Mediation and Conflict Res- olution (IMCR) in New York. The IMCR style had been developed by George Nicolau, a labor mediator with com- munity empowerment experience, and IMCR staff. Additional influences were provided by the Crime and Justice Foun- dation, which conducted some early training using a staff member who had previously directed the Columbus Night Prosecutors Program. In recent years, the theory of "principled negotiations," promoted by the Program on Negotia- tion at Harvard Law School, has been woven into many training experiences. In general, mediation is offered as a free, confidential and private service. Sessions are scheduled at the conven- ience of the parties, usually in the even- ings or on weekends in mediation cen- ters, churches, town halls, schools or other places not connected to the courts. (The exceptions are those programs which mediate small claims in court on the day they are scheduled for a hearing. ) The process takes from 30 minutes to four or more hours. The typical "session lasts two to three hours. CHINS cases may go two or more sessions. Mediators work in co-equal teams of two; often they are chosen to "mirror" the parties, that is, if a dispute is between black and white neighbors, a black- white mediation team will be selected. If the conflict involves a man and a woman, a male-fernale team will be chosen. With all parties present, the mediators explain the process, attempt to earn trust and begin to draw out the general out- lines of the dispute. These full-group sessions are followed by private sessions held with individual parties to bring out additional feelings and information, to identify issues and interests and to solicit suggestions. Between the large and 308 Judicature Volume 69, Number 5 February-Afarch, 1986 TITX 0022261
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of informal justice as :\bel's " I he Con- tradictiutu of Informal Justice,"=0 Hof- richter's ".Neighborhood Justice and the Social Control Problems of American Capitalism,"" Auerbach's "Justice Without Law?,"'-2 and Nlerrv's "Media- tion in tionindustrial Societies"?" Each of these articlrs t,tnd these are orll~,' SUnle St:lectle)tls/ Ia.es important issues about dispute resolution that are not treated elsewhere in the text-issues such as the increased mobilization of the state against the poor, the historical cfe%eloprnents that have decreased the conlmunity solidarity thought to be needed for community based dispute resolution programs, the cross-cultural fallacies ,vhich we import into our dis- cussion of dispute resolution when we try to use forms from other cultures. All of these issues and more are essential to the consideration of the advantages of "alternative dispute resolution" in our society in its present form. A well-educated student of ADR should encounter these rigorous cri- tiques early and often to be able to understand the complex social and his- torical dimensions of efforts to modify our procedural system. Whose endow- ments are affected and in what ways? Which values are being expressed in each of the forms? Related to this is this reader's desire for some historical treat- ment of these issues. How, for example, do the small claims courts of today de- rive from earlier efforts to simplify and make more accessible the legal system? One very important issue facing all students of dispute resolution is sug- gested by the excerpts provided by the authors but dealt with explicitly by only a few-what is the relation of the form of dispute resolution to the type of case or manner of dispute resolution? As Fel- stiner and Williams point out, it may not be the subject matter of the dispute 20. Abel, The Contradictions of Informal Justice in Abel, THE POLITICS OF I\FORNAL JUSTICE (()r- lando, FL: Academic Press Inc., 1982). 21. Hofricluer, Neighborhood Justice and the Social Control Problems of American Capitalism: A Perspective, in Abel, supra n. 20. 22. Auerbach, JUSTICE WITHOUT LAw? (New York, NY: Oxford University Press, Inc., 1983). 23. Merry, The Social Organization of Mediation in Nonindustrial Societies: Implications for In- formal Community Justice in America, in Abel, Vol. 2, supra n. 20, at 17. 24. The exceptions are a few law schools, like CUNY Law School, which use simulations and other materials, in addition to the appellate case, for the teaching of law and lawyering. Another that affects the "mediator's capacity to produce positive results." Instead, it may have more to do with the morphology of the dispute-where issues of dispute lie close to the surface, resolution by one form may be different than where dis- putes reflect "personal scripts, psychic conditions or social conditions" and are eleeplc buried "tmderlying causes'' (p. 359). Thus, efforts to easily categorize cases for one form of dispute resolution or another may fail if done on the basis of easily assessed "external" or demo- graphic variables, rather than the more complex "internal" dimensions of the dispute. This is an issue that might pro- ductively have been explored in the oth- erwise excellent illustrations of applica- tions of dispute resolution to particular subject areas found in Chapters 6-12 (family disputes, neighborhood justice centers, intra-institutional disputes- schools, prisons and large employing organizations, consumer and environ- mental disputes, intergovernmental and international disputes). As an introduction to the primary and hybrid processes of dispute resolution, ,vith applications to specific subject areas and questions about basic policy issues, Dispute Resolution works as an impor- tant survey and overview of the field. If it doesn't deal with all of the deeper concep- tual and empirical issues about dispute resolution that is because the authors hope to stimulate the rest of us to do that work by engaging us to think about, teach and study the questions they have raised about the dispute resolution pro- cesses. How then, might Dispute Reso- lution effect our conceptions about the core and the periphery in studying about dispute processes in the law school? Core and periphery The appearance of Dispute Resolution presents us with an important opportun- exception is the teaching of criminal procedure, not through procedural rules, but with constitutional principles. 25. Supra n. 12. 26. Mnookin & Kornhauser, supra n. 9. 27. Galanter, "...A Settlement Judge, Not A Trial Judge" Judicial Mediation in the United States, 12 J. OF LAw & Soc'r 1(1985). 28. Cramton, ADR in the Schools: An Introduc- tion, and Flaherty, Refining the Law Curriculum, in 3(10) Alternatives to the High Cost of Litigation at 1 and 8 respectively (1985). See also symposium issue on Alternative Dispute Resolution in the Law Curriculum in 34 J. OF LEGAL EDUCATION 229-339 (1984). ity to reorient the wa~we think of le gal processes. In virtually all law schools, law is taught from the appellate opinion and procedure is taught from the rules for conducting trials and the litigation which precedes the trial.24 A broader .conception of dispute resolution gives us the opportunity to teach future lawy- ers that their function nlay be more complex (and worthwhile) than simply engaging in traditional litigation. I have argued elsevdhere25 that court models of dispute resolution too nar- rowly limit our conception of what is possible in resolving disputes. We tend to think of the sort of solutions courts are empowered to award-money damages and injunctions-and to argue for these things with appeals to principles that would be recognized in court, even when we are disputing outside of the court. Others have framed this argument in dif- ferent terminology with similar effect. NTnookin & Kornhauser argue that the rules provided by courts give the parties the bargaining chips they use in their dealings in bargaining "in the shadow of the law."26 Galanter has argued that d.is- puting is one large process called'`litigo- tiation," where clear boundaries between litigation (through adjudication) and ne- gotiation are blurred in the similarities of behaviors and arguments.27 The emergence of a book like Dispute Resolution enables us to see how sim- plistic such a view of disputing is and its simplicity is deceptive. The different processes described and illustrated in Dispute Resolution through case stu- dies, descriptions and sample procedu- ral rules demonstrate how much more varied our studies should be and how much more diverse our teaching should be. In their own review of the impedi- ments to the use of alternative dispute resolution (p. 486-7), the authors suggest the crucial role played by lawyers in thwarting attempts to try different pro- cesses. Lawyers work with what they are familiar with. The control they exert over their knowledge of the litigation system to advise clients is an important dimension of limiting what is made available to clients. Thus, the early edu- cation of law students to understand the varieties of dispute processing seems crucial. As the teaching of different meth- ods of dispute resolution makes its way through the law schoo1s,28 new entrants TITX 0022256 303
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ing the position and importance of set- tlement in the pre-trial conference. Some judges, he reported, considered settle- ment "the chief purpose of the proceed- ing," while others believed that settle- ments emerged as a by-product of the clarification of issues and preparation for trial. Professor Sunderland himself clearly thought that "maximum benefit from the pre-trial conference would be obtained if it were administered primar- ily for the purpose of designating and eliminating issues, facilitating proof and disposing of preliminary matter, with settlement playing a secondary role."18 A federal judicial administrator serv- ing as secretary of the Committee on Pre- Trial Procedure of the Judicial Confer- ence of Senior Circuit Judges surveyed judges on their attitudes toward pre-trial and found that "[i]n general the opinion is that it is proper for the judge to ask the parties whether settlement has been dis- cussed. This opens the subject up and there are many judges who will not go further without the request of the par- ties."t7 The Committee's opinion that "settlements are a useful by-product of pre-trial procedure..."ts was fortified, ac- cording to Shafroth, by a survey of all federal judges. Shafroth's excerpts from the responses of five of the judges sur- veyed suggest that those j udges saw them- selves as initiators of settlement discus- sions but not as participants in them. In the 1940s, settlement was viewed as a by-product of pre-trial procedure. We have stood steadfastly against the per- version of the pretrial procedure into a device for forcing settlement.... With us, because the overriding, primary, almost exclusive function of the pretrial confer- ence is to further the dispositiorr of the cases according to right and justice on the merits, the contribution of the conference to a settlement, can never be the reason for the conference, but merely an incidentat, although, of course, valuable, result of it.* But even before this, the by-product doctrine began to be qualified. Chief Judge Murrah observed, "[t]he settle- ment of cases is not a primary objective of pre-trial conferences, but, when prop- erly presented,, it is an important by- product and often the logical result of pre-trial."=' He suggested that a judge might not only ask whether settlement The by-product view has been considered, but "may even go In 1944, the Judicial Conference of the, furthes and make discseet sugrsticrosas United States approved the recommen;m to tbirpttssibk otteaomwof [Bj;r' dations of its Pre Trialy Cottttniteet, in~ pointing±'=out- tl* pitfalWo6Xgoing t& cluding the view that settlemenEis a"~. tri4thept!e-trkI fu(*,e.. c~ atNdnpt tt>~~ ~_ product of good pre-ttial.: p cTea"if'tl~.way for a settlen~at;~ rather than a Pr tottiaint~ of both patt~ ~y ~~s.~ ~~ _.. __ - ' .. . actively pursued by the-j "by-product" view re vailing notion in the k w;1him tlitfed hidj§ Arr esia~ 1isfi"iik"settknient=oriented ' pme-triat into the 1950s. witl'r aetiW'judiciah' participatioinu was AddressingtheAttotnelrw;e~395g ffouriahiit~in aotne 'state.courts. Judgt Conference on Court CAmMmd1ft*andk: Corneliasl: Hsrrttngtou`ot ft'6rFuill~ Delay in Litigation, Justiee, B>sennm-- Cowtoff".tiokCouttty,fcrexaat*des~,. derlared:° Ii ~ ~ ~ ib r ~ t i~ ee ~c tti. a l~ '~~ ~~r"t l u ~. ~ havecesrseNANJbdfctal°'prooliwt year! it 16. Sunderland. P.ocsdtns for Actri.FConfiw tion:'6ett9ft`ttdeGtmttTallofr/ntioR,W^shing-• elimtis>alsapppBhw,Xk 4opmes& itself to' enc« in the Federal Coustr, 3 WYomtta L]. 20e1~ (1949): toa. D.C.195et at 87:' 21. Mtutalr, stepas aw 19; at 42At= buyittaselels.iltasieusibW alf~~etiGabl!'" 17. Shafroth. pn-7}iot Tecbniqaes of Feda$9- k Povide1t~•mechar} blr W'11teb;* IudYer. 21 Dtcrs 260 (1944)h~ 23: Ni®r, Pre,TYwW nn tlu Unitsd Stuti~ 25 Ctaw disptites IUwbe diepoeerl' of iifl a way tiiaw,. 18 ld at252 " B. Rsv. 70!(19M,' leaves-al#j]ittsties;satisfied`fnattadcif otwo>< . 19. Mnnah, Fra7tiiet Ptocsdur#;.! Strtentent of I F r 24. Id at 7Gtl:> . . ; boft~dirsgrttntteeis and* wifl'P a- gnevanua ts ss nti.ls, 14 F. lt: D. 424 (1964) teprinted. 2S- Robsow Sftewtim+.B lt"twa- 87t P"l;±`T~" 20. "Ptoaedinp of the Attorney General's CA~w, 1~rvratd nne,4atibC.W j:344'(19 6lX;. - , . agaWa+oouz+ewankOMtlaawt l:rshexild+i&F„ femtce on Court Conge.don and Delay in Isdga- 29: Nua., stow iL 23, .017 •71a., °„ crcase th!'ase'o[ tliE~oOtn'tatiw ;' `'• '. informal conferences in negligence cases: A memorandum ... is required to be filled out by counsel for the plaintiff before the hearing. At the hearing I examine the pleadings and the police and accident pre- vention reports which are public records. I, also, examine the statements of witnesses which are submitted by both counsel and any other data either counsel wishes to submit. I do not disclose to either counsel what is contained in the file of the other. If it is a case that I conclude would go to a jury at the close of the plaintiff's rase I so advise counsel and then request an expression from counsel for plaintiff as to the amount for which he would settle and adjust his case, and inquire if there were any offers of settlement prior to the court hearing. Then I inquire of the defendant's counsel at what figure he values the case?s Judge Harrington continues: ... After a frank discussion by counsel as to the value of the case, I give expression as to what, in my judgement, the case should be settled for. I would say that in approxi- mately 90 percent of the cases the counsel agree on a figure approximating the court's recommendation. The figure the court expresses is not compulsory and if counsel cannot agree, then the case is reassigned to the head of the assignment division for an immediate jury trial :• A similar picture is supplied by a Municipal Court of Chicago judge... writing six years latet: After all the information is examined, the court aska the plaintiff what he feels would be a reasonable settlement. The defendant is then askedasto whathe figures the value of thecase:If thepertiescaa agree, theeotut does noaintervvm HaR.eveg if they do not seem to be able to ua& a cotompro.eise fig- ure, the court very often attanp~ to britg . the pattica ta a bstaFs, upoa which tlfe case.. can be mediaseLI6 cbttnsef-rieqtqart the cotstwill' give ~ .- if, st hul"s tbtr, valuceb tlie etiwa Wha 'l7~pt~a tb~us tlte'' court exp~.preia+~ ~iie and i$l, counedcrunot agF.ai- tt~caMri~, tti~t givrr~ a triaFitnmberand p.ce&bat t1*6riiJ'ca11v.~° In additior~, an'ar~pgvpwmt ot.. '•pre-trial~O,' `surre>tistgtht scene in ,1947, found`aa [>is, satisfaction thar- _ Pre-trisl seesnrttoba.edeveioipeftmethods, . . of ~..witbin ahe., TITX 0022212
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that either party failed to make a good faith effort to mediate or failed without good cause to appear for mediation af ter receiving notice of the scheduled time for mediation, an appropriate sanction may be applied. The court may order the parties to submit to mediation, dismiss the action or any part of the action, render a decision or j udgment by default, or assess attorney's fees and costs. The future In addition to divorces the Court Media- tion Service has also been handling over a thousand small claims cases a year and the volume is quite certain to increase. Possible new directions are mediations of probate, guardianship and child protec- tion proceedings, infractions of building codes and zoning ordinances, boundary disputes, and more landlord-tenant cases. The expansion of mediation in Maine is due to so many factors that perhaps it can only be explained by the cliche that it is an idea whose time has come. But it would not have started without the sup- port of the Maine Bar Association and the sponsorship of the Judicial Depart- ment; it would not have grown so rapidly without competent mediators artd the sta- tutory action of the legislature. Inquiries show the widespread national interest in Maine's innovative efforts to reduce ad- versarial confrontations in court. 0 LINCOLN CLARK is the Director and JANE ORBETON is the Deputy Director of the Court Mediation Service of Maine's Judicial Department. Eighth Circuit Court of Appeals pre-argument conference program By John H. Martin Since the 1976 Pound Conference, there has been a virtual explosion in the devel- oprnent of alternative resolution pro- cesses to litigation in almost all substan- tive areas. Courts have been no exception to this phenomena. Many state appellate courts throughout the country have es- tablished mediation programs designed to settle cases and reduce their backlog. In addition, several U.S. circuit courts of appeals have established pre-argument conference programs as authorized by Rule 33 of the Federal Rules of Appellate Procedure. Court congestion and costs have contributed to the establishment and utilization of these programs. The Second Circuit program, estab- lished in 1974, entails mandatory per- sonal conferences with attorneys in al- most all private civil cases. The Sixth Circuit program, established in 1982, operates similarly but primarily through telephone conferences. The Eighth Cir- cuit program, established in 1981, util- izes a combination of personal and tele- phone conferences. The Seventh Circuit, the D.C. Circuit, and the Ninth Circuit all have pre-argument conference pro- grams which concentrate not upon set- tlement but upon coordination of the various and complex steps of perfecting an appeal such as designation of the record, briefing schedules, and coordi- nation and page limitation of briefs. The programs of the Second, Sixth, to this phenomenon. Many state appel- late courts throughout the country have established mediation programs designed to settle cases and reduce their backlog. In addition, several U.S. circuit courts of appeals have established pre-argument conference programs as authorized by Rule 33 of the Federal Rules of Appellate Procedure. Court congestion and costs have contributed to the establishment and utilization of these programs. Eighth Circuit procedures The Eighth Circuit Program differs from the others significantly in that participa- tion is completely voluntary for attor- neys and parties; parties have a statutory right to have their cases adjudicated. The Program concentrates on settlement, although another purpose is to simplify, clarify, and sometimes reduce by agree- ment the issues presented. Conferences are scheduled for this purpose alone when the issues are unusually numerous or complex, but they usually occur as the natural by-product of settlement discus- sion. They are conducted with attorneys in person whenever possible in St. Louis, St. Paul, Little Rock, and other cities, although the geographic breadth of the circuit necessitates that discussion oc- curs substantially by telephone. Only civil cases are subject to the Pro- gram and involve damage suits primarily. Social Security, tax, labor, and other cases involving substantive agency programs are excluded by Court Rule, as well as all postconviction suits and civil rights cases (unless a money judgment is involved). The file furnished to the Program by the clerk of court contains the district court docket en tries and j udge's opinion, if any, together with the Appellant's Appeal Information Form which, be- sides listing issues, indicates any desire to participate in the Program. After reviewing the file for possible jurisdictional defects, the Director con- tacts both sides separately to explore possible settlement if either has indi- cated interest. Sometimes post trial mo- tions and briefs are requested for a better understanding of the facts and issues in the case. The Director attempts to de- velop offers from each side, without determining a bottom line, before at- tempting to arrange a conference. The absence of any or little movement by either side usually indicates no interest in settlement, and those cases generally are not set for conference. In cases that offer some potential for settlement the Director arranges conferences. If per- sonal conferences are impractical, sev- eral telephone conferences are conducted with each party, where offers and coun- teroffers are conveyed and which fre- 312 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022265 ~
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Mandatory mediation of divorce: Maine's experience by Lincoln Clark and Jane Orbeton Voluntarv mediation of divorces has been utilized in Maine and in other states for several years. Mandatory mediation of divorces in which child custody or visita- tion is a contested issue was introduced in California in 19811 and in Maine in 1984.2 Maine's statutes, basedon the laws of California and other states, were passed after public hearings that in- cluded testimony of judges and members of the Court Mediation Service on their experience with voluntary mediation. Also influential were the report of the Commission to Study Child Custody and testimony given by members of the commission. The legislature, concerned over how best to protect the interests of children in divorce, decided on manda- tory mediation. Maine's statute provides for manda- tory mediation of all contested cases in which the parties have minor children. Mandatory mediation also applies to unmarried parents seeking an order on parental rights and responsibilities and child support.' It applies to judicial sep- aration,' and to parties seeking tempor- ary, permanent, and post-divorce orders.s In Maine, mediation is a step in the domestic relations process, an oppor- tunity for the parties to try one more time to settle the issues in their legal action before a trial in court. The case that is settled proceeds to an uncontested hearing on the basis of the agreement. The case that is not settled may return to mediation again, may be negotiated toward settlement outside mediation or may proceed to a contested trial. Parties in cases that have not settled have frequently thanked the mediators for the opportunity to talk with their spouses and with the mediators. Parties in cases which have settled have left mediation with a plan for the future that they fashioned, and that can serve as a foundation from which to parent co- operatively. It was these goals which the Maine legislature was seeking when they instituted mandatory mediation. The number of cases handled by the Court Mediation Service is approaching 5000 per year, of which about 4000 are contested divorce actions. There are 60 Figure 1 DIVorce medierlone Jenuery through June 1985 ryoe end oi.oo.umn >.;rE.,-,_JI ,sa9.60'~ I C, e a • ~ cemm-a.._v." . . - Y' NUEDS 350 2~'0 _neP JOS ,J o NCTFEfcppEC3382a i > b. nA mediators serving all 50 of Maine's dis- trict and superior courts. Complete agreements are reached in a single medi- ation session in 41 per cent of all divorce cases. Another 19 per cent are continued to a second or third mediation. Fourteen per cent are resolved after the mediation by the parties without the participation of a judge or a mediator. Eight per cent were withdrawn by the parties (see Fig- ure 1). The remaining 18 per cent go to the court for trial. The Court Mediation Service is gov- erned by Maine statutes and the policies of the Court Mediation Committee. This committee, chaired by the chief justice, is composed of four judges, the state court administrator, and the director of the Court Mediation Service. Maine's Court Mediation Service is distinctive in that it has become com- pletely financed by the state's Judicial Department. In addition to divorces, it handles a wide variety of other types of cases-small claims, landlord-tenant, and major civil litigation cases. The mediator decides whether the case should be continued for further mediation or referred to court for trial. Mediators recruit, nominate, train, assign and eval- uate other mediators. The scheduling of mediations is done cooperatively with clerks of court. Start-up problems That there were seNeral problems at the beginning of mandatory mediation was no surprise. There were a flood of cases and an insufficient number of trained mediators, many attorneys were unfamil- iar with mediation, there was a lack of rooms for mediations, and parties failed to appear or cancelled. The first few months following the passage of the 3ta- tute in July 1984 were hectic. Now, less than a year later, scheduling systems and operating procedures are running quite smoothly and rarely must a case wait more than a month for a mediation date. Many prospective participants were apprehensive about mandatory media- tion. The mediators themselves feared recalcitrance of parties to participate actively. They now report no significant difference in the degree of cooperation of the parties between mandatory and vol- untary mediation. Some parties simply accept mediation as a required step in the procedure to obtain a divorce; more 1. California Civil Code §4607. 2. 19 Maine Revised Statutes §214, 581 and 752 (1984). 3. 19 M.R.S.A. §214 (1984). 4. 19 M.R.S.A. §581 (1984). 5. 19 M.R.S.A. §752 (1984). 310 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022263
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Discover the magic of Insta-Cite on4VESTIAW. Insta-Cite on WESTLAW provides new case citations nine to twelve weeks faster than our competitor, Lexis/Auto Cite. You see, Insta-Cite citation verification/case history services have an editorial staff of lawyers to keep it up-to-date. Insta-Cite is faster and easier to use than Lexis, too. Instant access is direct on WESTLAW from any case or case citation. And cross checking Shepard's citations as well as using other helpful functions like FIND, LOCATE and even Black's Law Dictionary is done with one ~~ simple command. Call today for more information. WESTLAW Superronty 7hats No Illusion West Publishing Co. P0 Bos o-S~_c Copyright 1985 West Publishing Company I ~00 ±_'&JI0•1~Jro12 _"H-'.~01 TITX 0022269
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blencl" thir l part} tac iiitlri1 nw ith clis- putant coutrol o( outcomr, 1ud hetuce i', inherently imprecise :Ind rttauipulable. In theory, ntediation is a ~ofuntanpro- cess whereby n:o or uwre disputants arl ite at a n1utuallv acc eptable s03fution •.cith the h('lp of a ncuull third p.uM. ln tltct, "omeuftlhrseft,t;_i:, , nrt,ftcn fack- itrg. Becauu•ol ihe nc,t,.tucnnlulon it•lu( - tance of ~)ne party cu participate in mediation, okert or co%k rt pressttre is brought against the reluctant party. As regards the element of coercion, a distinction shotild be drawn between coer- cion "into" and coercion "in" mediation. Although ideally a disputant should be able to make a knowing choice between going to mediation and going to court, a bit of a push towards mediation does not seem too serious, given the general ignor- ance of that process, as long as the dispu- tants are free to choose any outcome they wish ira the mediation proceeding. In a recent piece, Professor Owen Fiss of 1`ale Law School launched a ringing attack on one of the fundamental pre- mises of the alternatives movement- that settlement as a general rule is a social good.° Fiss contends that settle- ment necessarily involves a compromise of legal entitlements, which is of partic- ular concern when there is a sharp power disparity between the parties. I'he case against mediating disputes of the disadvantaged has been articu- lated with particular fervor by radical critics of the legal system, for they see the alternatives movement as a calculated effort by the establishment to discourage the disadvantaged from asserting their legal rights' and hence as simply another form of social control. By way of factual support, these critics point out that the three Neighborhood Justice Centers that were set up by the United States Depart- ment of Justice in the late seventies were in fact used predominantly by lower income disputants.s Another argument raised on behalf of the lower income users of alternatives is that they are relegated to "second class" j ustice while the rich preempt the courts. 6. Fiss, Against Settlement, 93 YALE L.J. 1987 (198-i). 7. Abel, The Contradictions of Informal Jus- tue, in Abel, ed., THE PoLlrlcs OF INFORMAL Jc•s- TICE: THE .a.NfERICAV EXPERIEVCE I(New York: A(ademic Press, 1982); Auerbach, JUSTICE Iti'ITH- oUT LAw? (New York, Oxford. 1983). 8. Cook, Roehl and Shepard, NEIGHBORHOOD JUSTICE CENTERS FIELD rEST: FINAL EVALUATION Like most slogans, the term -;econd class" justice tequires closer anal~ sis. It appears to consist of three distinct ideas. The first is that the thrust of the medi- ation process is towards a surrender of le:;al rights; its goal is settlement, not rtiOn of principle. This is the thesis that is ,o forcefully as;erted by Fiss, not ou1% trom the per,pective of the individ- u,ll disputant but also in terms of the potential harm to society where socially important issues are at stake. To take a common example, if a consumer who has been victimized by a merchant sues in small claims court and then is referred to mediation, the case may be settled by having the vendor make some modest payment, without the consumer ever being apprised of his right to get treble damages under the applicable consumer protection act. The second concern is that mediation lacks the legal protections associated with the adjudicatory process. Lawyers rarely participate in mediation, there are no evi- dentiary rules to prevent the introduction of unreliable or even prejudicial evidence, and in criminal-type cases no provision is made for the assertion of constitutional rights, such as the privilege against self- incrimination. In short, there is no gua- rantee of due process in mediation. The assumption that underlies both preceding arguments-that many per- sons "relegated" to alternative processes would prefer to go to court-is doubtful at best. Where the disputants have an ongoing relationship, or the dispute is polycentric,9 mediation may be far more responsive to the needs of the disputants than adjudication. Consider, for exam- ple, sexual harassment in the work place. While adjudication, if successful, would provide vindication, it might also create such tension that a continuation of the employment relationship might, as a practical matter, be extremely difficult. In such a situation, employees might well prefer mediation to adjudication. Another assumption of the "second- class" justice argument is that if lower- income disputants were not relegated to REPORT (Washington, D.C,: U.S. Government Printing Office, 1980). 9. Fuller, The Forms and Limits of Adjudica- tion, 92 HARV.L.REV. 353 (1979). 10. Singer, Nonjudicial Dispute Resolution Mechanisrns: The Effects on Justicefor the Poor, 13 CLEARINGHOUSE REV. 569 ( t979); Rowe, Predic ting the Effects of Attorney Fee Shifting, 47 LAw AND COtiTEntP. PROBS. 139 (1984). alternatiwe processes, tlie~ would receive the procedural protections and hall- blown trial inherent in the phrase "first- class" justice. In actuality, however, most "minor" disputes are shunted aside or mass-processed by the j udicial system in a w•a} that provides very little of the deliberative flavor that is the advertised hallmark of adj udic:ation. Hence, the real choice may often be between media- tion and surrogates for true adjudica- tion. In this connection it is crueial. to draw a sharp distinction between com- plex and pathbreaking litigation (such as a desegregation case that receives a disproportionate amount of judicial at- tention) and run-of-the-mill civil or criminal cases that are far more likely to be thoughtfully considered in the alter- native processes. A third implication of the "second class" justice argument is that media- tion, by focusing on accommodative resolutions of individual disputes, pre- vents aggregate solutions. For example, using the previous consumer fraud exam- ple, if a manufacturer has committed flagrant violations of the consumer pro- tection laws, these wrongs will not be effectively redressed if the perpetrator is allowed to "buy off" individual com- plainants through settlements that do not address directly the legality of the underlying practice. Here again the assumption that the asserted deficiency is necessarily avoided in court is open to question. To be sure, a class action may be brought, or an indi- vidual case may create a binding prece- dent, but the vast preponderance of cases in court are settled without addressing any broader recurring issue that may be involved. This is particularly true of the high volume lower-level courts where most of these cases are brought. Hence what may be best is a mechanism (such as a consumer protection bureau in an attorney general's office) that effectively blends redress of individual grievances (perhaps through mediation) with aggre- gate relief through adjudication for "pat- tern and practice" violations. In the final analysis, the question is how best to bring about change by indi- vidual or by institutional defendants. Sometimes lawsuits represent the most promising way; at other times, institu- tional change is brought about best from within, through accommodative pro- TITX 0022246 293 1
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tary gain obtained post arbitration. Litigants' perceptions. We have now measured litigant satisfaction with arbi- tration programs in four different juris- dictions, with substantially different pro- gram rules. In each jurisdiction, the overwhelming majority of individual litigants whom we surveyed were quite satisfied with the program. Although winners are generally more satisfied than losers, a majority of the latter are at least somewhat satisfied with the program. This high level of satisfaction is appar- ently attributable to litigants' satisfac- tion with the arbitration procedure it- self. We have found that most individual litigants have a simple definition of what constitutes a fair dispute resolution procedure: they want an opportunity to have their cases heard and decided by an impartial third party. In courts that offer an arbitration alternative, unlike most metropolitan courts in which an expen- sive and time-consuming trial is the only alternative to settlement, litigants with small suits are accorded this opportun- ity. Most find it a fair process. Program design variations As should be clear from the discussion above, although all court-administered arbitration programs share certain key features, program design varies substan- tially. Even within a state, where all pro- grams are operating under the same authorizing statute, there may be con- siderable variation from jurisdiction to jurisdiction. Typically, programs are de- signed in part through legislative deci- sionmaking (with inputs from state judi- cial councils or court administrative offices, from the bar, and from other lob- bying organizations) and in part through the formal court rulemaking process. Often special bench and bar committees are established locally as well to draft The coming evolution in court-administered arbitration by Robert Coulson Prophets have enjoyed a lackluster rec- ord in recent years. Nevertheless, I am prepared to forecast that court-adminis- tered arbitration programs will flourish in both state and federal court systems and that they will change in fundamen- tal ways, and for the better. As discussed in theaccompanyingarti- cle by Deborah Hensler, mandatory court-annexed arbitration programs for relatively small civil disputes have been a major, recent reform in the American civil justice system. As news of this experiment percolates through the judi- cial community, court after court has been contemplating the installation of some such alternative dispute resolution - system. Numerous judicial cnn€erences of the AAA. The primary influence, as would be expected, will come from the bar. At pres- ent, lawyer-arbitrators on court-annexed panels have been willing to serve as volttnteers or for whatever nominal fee may have been established by local court rule or by the legislature. There will be steady pressure to increase such fees. Some of the programs have already had to raise the level of compensation.Y When the arbitrators are paid several hundred dollars per case or some amount that covers their overhead approaching their normal professional billing rate, the cost of such programs must increase, perhaps becoming prohibitive. At tbat point, there will be pressure on on the subject have been sclteduled in courts to use a single arbitratotr, rather recent years where advocates for court ` than the panel of three: Such a change arbitration have argued'that this is an may also be reqttired'toaccotnmodate to idea whose time has cctme.? Indeed, I am the irnpedittnau that some busy lawyers one of thcnse enthusiasts. will no lotsger be willing to serve asarbi- My experience with the voluntary pro- tratnra on matters which they regard as cesses of the American Arbitration A.sao- relatively trivial, below their level of ciation, moreover, convince me that eoo- expertise. (Many civil disputes being lutionary pressures will i.nevitably arhit'sted under these programs require change the s tructu.re of these court pa+o• the arbitrators to put a price on personW grams. Similar pressures- hax* inftta- or property dansages and do not require enced the various rules and prooedwm* soph*icpttd kg,t# skills.) Thus, botb rules of local program operation. Historically, there was a tendency for these groups to fashion new programs after previously established programs in neighboring states and jurisdictions. Now that information about program de- sign is more readily available, the process of program design may be somewhat more systematic. But ensuring that a program is acceptable to key constituen- cies-lawyers, insurance companies, pub- lic advocates-is still a key component of program design. Our evaluation research suggests that there are many ways of designing court-administered arbitration programs to meet their objectives. ICJ researchers have identified a small number of key decisions that must be made in designing and implementing court-administered arbitration programs. We discuss the range of options open to policymakers and administrators in mak- ing these decisions, and their implica- economic and professional factors will nudge such programs towards using a single arbitrator. Another tendency is likely to present itself. Now, arbitrators are instructed to evaluate the case. They are warned not to attempt to mediate a settlement. That instruction seems sound because the pro- gram uses a rotating panel of lawyers, most of whom do not have mediation skills. But as lawyer-arbitrators become expe- rienced with these programs, and particu- larly when they serve frequently as sole arbittators, they may become activists. Rather than serving as relatively passive arbittator-evaluawrs, they may pattici::. paoe more actively in settlement negotiaM tions-in effect, becoming mediators. In part, this may occur because they are en- couraged to do so by the parties' attorneys, Our experience with somewhat sim=. t. BucW3~ l.„t't Therr a Batt.r iiwyl, 68 A.H.A.J. 247 (I9K)C Sri= Tlse.4#fern.tiw l3ispute Rarolw troK Ato.e+a.q.r.lw Utwxww, 4tiAautrw'rwK j, 9 (5" 19M . , 2. Cok*-.irr"exed.lrbitiwNeair ths9eues 7iiWk. Cowt 5WW»r; Sawnwmt br Ileberair R,. Heesift tascitwe faaa CAd Jwtiar, Ths Aand C:arporatim prepw" 6arsanow Juqli0imr coemmitoee &ub+oetk~ naic6eeetGewrls, Febras" 1, t984, at 7.
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(continued from page 253) as being a relatively closed process." Few courts have developed rulemaking procedures that encourage the consider- ation of new rules by other than bar and bench interests. Because of the considerable effect that court-connected ADR programs poten- tially will have on the administration of justice in our society, the judiciary might consider opening to broader participa- tion the rulemaking process by which these programs are established. Expand- ing opportunities for nonlawyer partic- ipation in the fashioning of these new programs might assist in providing an- swers to a key question posed by Maurice Rosenberg in his insightful Query in this symposium issue: "How can we as- sure that the forum will fit the fuss?" 0 12. See, e.g., Grau, JUDICIAL RL'LEMAKING: AD- MINISTRATION, ACCESS AND ACCOUNTABILITY (Chi- cago: American Judicature Society, 1978). Wein- stein, REFORM OF COURT RULE-MAKING PROCEDURES (Columbus: Ohio State University Press, 1977). JAMES J. ALFINI is an associate professor at The Florida State University College of Law. He was on the staff of the American Judica- ture Society from 1973 to December, 1985, serving as Assistant Director of Research, Director of Research, and, most recently, Assistant Executive Director for Programs. Today The Justice Award, the Society's highest recognition, is presented for significant contributions to improving the admin- istration of justice nationally. AJS mem- bers and friends are invited to suggest possible recipients of the 1986 award by sending a letter of nomination and sup- porting materials to Society headquar- ters by March 21. The 1985 Justice Award recipients were Ruth and Fred Friendly, the Honorable Dorothy W. Nelson, and The National Judicial College. Nominations for the 1986-87 Board of Directors may be submitted by AJS mem- bers, along with an indication of demon- strated interest by nominees in areas of concern to AJS, to the Nominating Com- mittee at Society headquarters. Nomina- tions must be received by March 21. The American Judicature Society re- VIEWS FROM THE BENCH The Judiciary and Constitutional Politics COLLECTED AND EDITED BY MARK W. CANNON AND DAVID M. O'BRIEN FOREWORD BY WARREN E. BURGER, CHIEF JUSTICE OF THE UNITED STATES "This is a remarkable collection of instructive views on many aspects of the judicial process, with many readable observations useful to both lawyers and laymen:" Erwin N. Griswold, former Dean, Harvard Law School "Views From the Bench is a most valuable and useful collection of scholarly essays:' Edward D. Re, Chief Judge, U.S. Court of International Trade "The articles in Views from the Bench will give comfort to court watchers, political scientists and all who love liberty that the judicial process is alive and well, and that it is proceeding at a measured gait and under proper restraints." Griffin B. Bell, former Attorney General of the United States Included are selections by Chief Justice Warren E. Burger and Justices William J. Brennan, Jr., Sandra Day O'Connor, Lewis F. Powell, Jr., William H. Rehnquist, and John Paul Stevens. Also included are leading members of the federal and state judiciary: Ruggero J. Aldisert, Robert H. Bork, Frank M. Coffin, Henry J. Friendly, Frank M. Johnson, Jr., William Wayne Justice, Hans A. Linde, Howard T. Markey, Carl McGowan, Dallin H. Oaks, Alvin B. Rubin, Antonin Scalia, Walter V. Schaefer, J. Clifford Wallace, and Ralph K. Winter. ISBN 0-934540-34-9 $z5•oo cloth (plus $z.oo UPS) to: Chatham House Publishers, Inc., Box One, Chatham, New Jersey 07928. cently presented a Herbert Harley Award to the Honorable Alexander P. Waugh, a retired judge of the Superior Court of New Jersey and a Special Merit Citation to Julius A. McCurdy, a nonlawyer from Decatur, Georgia. Judge Waugh was honored for his ser- vice to improving the administration of justice in New Jersey as both a member of the bar and the bench. During his career, Judge Waugh served as chairman of the National Conference of State Trial Judges and on the faculty of the National Institute for Trial Advocacy and the Na- tional College of State Trial Judges. He was also active on numerous supreme court committees concerned with im- proving the courts. Mr. McCurdy served as president of the Citizens' Judicial Study Commission of Georgia, Inc., in the 1960s. The work of that Commission, under Mr. McCurdy's leadership, lead to establishment of the Governor's Judicial Nominating Com- mission, the Judicial Qualifications Commission, the Judicial Council of Georgia, and the Administrative Office of the Courts. Plans are now underway for the 10th National Conference for Judicial Con- duct Organizations, sponsored by AJS's Center for Judicial Conduct Organiza- tions. The conference will be held Sep- tember 17-19, 1986 at the Holiday Inn, Chicago City Centre. A faculty of experts from across the nation will present lec- tures and seminars concerning judicial ethics and conduct for judicial conduct commission members and staff, lawyers, judges and others interested in the field of judicial ethics. Further details about the conference will be announced. 13 314 Judicature Volume 69, Number 5 February-March, 1986 TITX 0022267
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seem to welc ome mediation as iii ;tlter• natice to a trial in court. .attorneys' fears that concessions or compromises in mediation might prej- udice ongoing litigation have dirnin- ished. Some attorneys have reported that they are negotiating more a,greernents- a desirable trend that is ,,dt.tcing the number of contested tases. llecliation is particularly useful when parties with their attorneys cannot resolve their dif- ferences by negotiation. More and more attorneys are expressing appreciation when mediators offer creative proposals to break impasses blocking negotiation. Polls of attorneys report no noticeable ok erall effect on legal costs-lower when mediation succeeds, higher when it fails. Comparing states I1'hile both Maine and California have legislated mandatory mediation, there are many significant differences. In Cali- fornia, mediation is restricted to custody and visitation issues. In Maine, all dis- puted issues must be mediated if the par- ties have minor children and also when there are no minor children if so ordered by a judge. The broader range of issues covered in Maine's mediation stems from the conviction that many issues in a divorce affect the children. Where the children will live, which parent gets the family residence, how the mortgage will be covered, who will get the family car, who will pay the overdue doctor's bills and whether there will be support pay- ment are subject to mediation. Mediators in California may exclude attorneys from the mediation session where the mediator deems exclusion of counsel to be appropriate or necessary. In Maine, attorneys are encouraged to participate and, indeed, they may not be forced to leave the mediation. Practice and procedures vary with the mediator, the court, and the region in Maine with regards to the manner in which attor- neys participate. Sometimes they are present for the entire mediation, some- times they are present for part or they consult with their clients before a final decision is made. The choice is made by the party and attorney together. Most attorneys participate cooperatively with the parties and the mediator to work out n. Rule 408, Maine Rules of Evidence. 7. Chapter 53, Public Laws of 1985. .In agreement. In addition, attorneys are an essential resource when legal issues arise since the rnediators are cautioned not to give any legal opinions or advice. In C:alifornia, as of January 1, 1984, all nlediators were required to have a mas- ters degree in psychology, social work, marria-e, familv and child counseling or psychotherapy. The backgrounds of Maine's mediators are very heterogene- olls. In addition to counselors, they include retired business executives, chap- lains, college presidents, community ser- vice leaders, professors, school teachers, social workers, a Navy captain, a proba- tion officer, and attorneys not engaged in the practice of domestic relations. We disagree with the tendency in many states, and the special interest pressures in other states and in Maine, to establish mandatory background qualifications in the absence of any tested evidence of their relevance. We have not found any correlation between mediator back- ground and performance; much more important than professional background are attributes which can only be judged subjectively. A series of interviews can attempt to determine if the prospective mediator is a paragon who can elicit and propose creative solutions (paramount because mediation is most useful when neither the parties or their attorneys could negotiate a solution), is impartial, empathetic, able to control emotional outbursts, and facilitate communication between the parties and attorneys. The recruitment problem is further com- pounded by lack of agreement on how to measure performance. We think the me- diator is truly successful if he or she initiates a process that results in the par- ents undertaking to resolve their com- mon child rearing problems after they are separated-but we do not know how to measure this. Clearly "Who will be a good mediator?" is no easier to answer than "Who will be a good judge?" The California statute declares the mediation proceedings to be private and confidential. It also provides that com- munications from the parties to the mediator are deemed to be official infor- tnation and are therefore inadmissable in court. In Maine, the privacy of media- tion is insured by an amendment to the Maine Rules of Evidence: "Evidence of conduct or statements by any party or mediator at a court-sponsored domestic relations mediation session is not adnlis- sable for any purpose. "e Mediators in California may make a recommendation to the court as to cus- tody or visitation of the child or children and may recommend mutual restraining orders. When an agreement has not been reached, the mediator may recommend that the court order an investigation of the family prior to a contested hearing. Mediators in Maine do not have author- ity to report or make such recommenda- tions to the court. It is felt that this limita- tion on the power of the mediators en- hances their role as impartial catalysts for settlement and increases the trust which the parties feel toward the mediators. Fine tuning An amendment to the statutes passed March 31, 1985 remedied two problems encountered with the statute of July 25, 1984-delays in motions pending arid the absence of sanctions for failure to make a good faith effort to mediate or to appear.' There are three possible court divorce proceedings: a temporary order, called a "motion pending;" the divorce; and a m.o- tion to amend the divorce decree. The statute mandates mediation in all three of these stages. There are situations de- scribed in some motions pending, how- ever, which, for the sake of the family, warrant an immediate decision by a judge. The amendment authorized a judge to hear a motion pending on any issue for which good cause for temporary relief has been shown. The parties then go to mediation on any remaining issues. The statute provides that "when agree- ment through mediation is not reached on any issues, the court must determine that the parties made a good faith effort to mediate the issues before proceeding with a hearing." It may prove difficult to enforce that provision. Nevertheless, the legislature's Judiciary Committee re- jected the idea of removing the "good faith" requirement from the statute- parties should mediate in good faith. Sometimes a mediation cannot be held because one party, usually the defendant, fails to appear. The resulting additional costs, inconvenience, and time lost are resented by the participants who have kept their appointment. While one ab- sence is usually "forgiven," repeated absences of a party may be brought to the attention of the court. If the court finds TITX 0022264 311 ! I
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quentk result in agreenient. Personal conferences last between one hourand 111 day depending on the nutn- ber scheduled and the progress being made. Usually it is helpful for attorneys to bring their client to the discussions. .\lthouKh there are no formal rules, the Director u'ualk in:rixei thr diseuasiutn bN~ recltte;ting the 1lapcllant to li.'t the issues on appeal and assess the likeli- hood of success on eaclt is.ue. Some- tinres prior settlement discussions fotrn the basis for starting the discussions. The Direc tor then functions in an inter- tnediary role usually separating the par- ties and assisting in the development of of fers convey ed through him to each side. The Director functions as a mediator with the parties..as is true in labor medi- ation, the most productive efforts occur in meeting separately with each side. The mediator becomes the avenue of effective communication; and parties are able to express themselves in an open and free atmosphere without becoming defensive about "position." If the attorneys can formulate settle- ment offers that reflect the range of reas- onable estimates on appeal, a bargain- ing relationship is established, at least for a short time, that may result in a complete settlement. Even in damage suit litigation a mediator can suggest other ways for the parties to accommo- date the different interests. The ideas may be unorthodox, but often trigger a spinoff idea that results in a proposal that settles an issue. In commercial lit- igation, executives are very imaginative and adept in this process. Varied techniques The dispute between the parties can be expanded to include settlement of other litigation, resulting in increased cost savings to the parties. The appeal might be delaved for a time to allow action to occur which, if not rendering the appeal moot, will substarnially affect the relief sought by the appellant. Action might be taken on an interim basis to see how that result might affect the desire to proceed with the appeal or the proposal neces- sary to settle the appeal, e.g., efforts to sell property, settlement discussions with third parties not directly involved in the litigation, advisory fact-finding by a privately selected third party. The dispute might be substantially re- duced by a settlement amon,g some of the parties, leaving a fraction of the case for decision. Sometimes payment can take the form of goods or services, a t least parti- ally, e.g., a.service contract or sale of fu- ture goods may be arranged rather than requiring payment of hard cash. Future cc;rtuni»iotr rates c atr be adjusted up~ti•ard or downward. Structured settlements in the personal injury area can be arranged that appeal to both sides due to the usual increased earning power of an insurance company compared to an individual, the need for protection of the individual's recovery from dissipation, and the non- taxable feature of personal injury settle- ments. Legal fees sometimes are willingly adjusted to increase the net recovery to a client. Scheduled time payments, taking into account the value of the use of money, is a common method of avoiding impasse on a cash settlement basis. Involving other representatives with more authority or knowledge than those participating in the discussions can pro- duce new ideas and proposals. Multiple parties with differing interests on one side of an appeal may authorize a com- mon representative to negotiate to avoid infighting and the possibility that sep- arate parties would fare worse than a united side. Associations of competitive employers and unions engaged in multi- craft bargaining recognized this phe- nomenon years ago. Common to both labor negotiation and litigation bargaining is the necessity of making modified offers. Without of- fers from both sides, no contract can result, unless one merely accepts the oth- er's offer. The mediator urges the parties to modify a prior offer; in this way momentum is built as the rate of offers being made increases. That momentum can take over negotiations and create a settlement psychology, bringing a dis- pute to conclusion, absent some disturb- ing interruption. Those who are reluc- tant to make an offer (e.g., for fear of displaying a weakness or because they do not want to bid against themselves, etc.) migh t consider that af ter the bargaining, the appeal will usually terminate bar- gaining so as to remove the perceived harm. One might also consider that an offer be conditioned upon a complete agreement being achieved, absent which all offers are withdrawn. On rare occa- sions, after all discussions fail, a media- ror can make a recommendation to each side and not disclose either party's accep- tance of it until each party separately indicates its consent to the mediator. Timingconsiderations are also impor- tant in settlement discussions. Settlement discussions after the briefs are completed are usually unproductive since each side has done its work and only need await a court decision. This remo,~es the possi- bility of closing the settlement range by anticipating savings in research and brief work. Briefs seldom persuade opposing counsel and may exacerbate an otherwise cooperative atmosphere. Therefore, the appellant's brief deadline functions the same as a contract expiration date in labor-to gauge when discussions and "final offers" should be made. Building on techniques used in the labor field, the Pre-argument Confer- ence Settlement Program in the Eighth Circuit has proven effective in dealing with the increasing caseload of the court and assisting in the consensual resolu- tion of cases with substantial cost sav- ings to the parties. It appears that ap- proximately 100 cases per year are settled as a direct result of the Program. Nfany of the techniques can be employed at the trial level in settlement discussions di- rectly between the parties. In either stage, counsel can thereby simultaneously avoid problems associated with the in- creasing expense of litigation and en- hance the results for and satisfaction of their clients. O JOHN H. MARTIN is the director of the Eighth Circuit Court ofAppeats Pre-Argument Con- ference Program. TITX 0022266 313 . 
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~mall gruup se,sions, mr_cliator, cat.rus to pl,ui ~tratcgy. Mediators are trained to listen care- fully and empathically, suspend judg- ment, tease out the positives, manage conflict, build the will to settle and shape the settlement. When a settlement has been wached. thr,at~rtetnent is put in ti% riting 'rnd signed b% the partiey and the mediators. Most prograuis consider these Nvritten agi-eements as " good fai th" rather than legally binding agreements. Data is not currently collected in a uniform manner, so a statewide "success rate" (percentage of agreements reached) is difficult to generate, but it would appear to be in the 85 per cent range. Evaluating the movement What does this information about fund- ing, affiliation, program design and case- load mean? Clearly the movement is alive, butjust how healthy is it? The Dis- trict Court Mediation Project found both grounds for optimism and cause for concern. On the positive side is the ability of community mediation programs to take root in an often shifting base of fiscal support. Furthermore, the primary fund- ing sources-DSS, DAG, the trial court, the uni%ersities and some private sources report an on-going commitment to sup- porting the use of mediation in the future. «'hat was originally seen by some as a dispute resolution method most appro- priate for urban populations has proven equally popular in suburban and rural communities. Programs have taken hold in communities as diverse as the cities of Boston and Springfield, more suburban communities such as Salem and Fra- mingham, the rural town of Athol and even the island of Martha's Vineyard. The range of disputes that are being resolved through community mediation is wide, encompassing matters which might otherwise enter the criminal, civil or juvenile justice system. While the patterns are not consistent, there are examples of well-conceived and well-established relationships between programs and the police, private attor- neys and public defenders, district attor- neys and court personnel. These exam- ples demonstrate that philosophical and practical barriers to mediation can be overcome through thoughtful collabo- ration. Six hundred and eighty-four ,% [assac husetts citizen, are ccurentlv sen- ing as mediators for local programs. HundrecEs of others have recei%~ed media- tion training in previous years. This growing body of skilled dispute resolvers cannot help but have a positive long- term impact upon comrnunitv life in this state. Local progranu hase joined together to address key issues facing the field of conimunity mediation. In just two years, the Massachusetts Association of Media- tion Programs has grown from an infor- mal gathering of project directors to an organization which sponsors major state- wide conferences for mediators, pub- lishes a newsletter, has working commit- tees and advocates for community mediation at local and statewide levels. Problem areas What is the downside of this picture? Every program is concerned about fund- ing, A few programs teeter on the brink of fiscal collapse. The strong emotional and philosophical commitment of local sponsoring agencies and community vol- unteers has been difficult to translate into reliable funding. Programs have learned to live lean, sometimes at the expense of staff morale and, ultimately, program effectiveness. The growth pauern of programs is potentially troublesome. New, special- ized, small-scale programs are being de- veloped, sometimes in close proximity to existing programs which are already underfunded and underutilized. The un- derutilization of mediation services is a problem for all but a few programs. In part, this is because so many programs are new and just establishing their sys- tems, reputations and relationships. When a program doesn't attract enough cases, several negative consequences oc- cur. Staff members suffer energy-drain- ing anxiety about their ability to justify continued funding. Program morale drops as mediators, trained, ready, but not used, suffer a loss of confidence. The newness of mediation in combi- nation with the sharp contrast that its private, collaborative nature presents to the public, adversarial quality of the courts guarantees that it will meet with some resistance from justice system per- sonnel. A few programs have established constructive communications with jus- tice referral sources, but many report considerable frustration becau~e tltev cannot open such a dialogue. The future As the Mediation Project enters its sec- ond phase, it seems that, of these many issues, two loom large. One is the search for stable funding. Local programs, their sponsors and funders alike, must begin to consider how their own plans and policies converge to impact upon the field as a whole. Also, the question must be asked, is it time for a more coordi- nated statewide approach toward the support of community mediation? The second issue is learning how to carefully craft a support system for com- munity mediation that avoids the well- documented tendency of today's reform to become tomorrow's red-tape bound institution. This is no simple task. Medi- ation's effectiveness rests in its simplic- ity. Freed from the rigid requirements of the conventional legal system, media- tion offers parties a respectful and straightforward way to address their dif- ferences and develop workable agree- ments for the future. In order to offer mediation in the context of our due process-oriented legal system, consiefer- able attention must be paid to determin- ing when mediation is appropriate and when it is not, that is, when the public interest is best-served by allowing parties to settle their differences in private and when a more public, and thus more for- mal, resolution is called for. As community mediation enters its second decade in Massachusetts, and programs reach out for a broader and more stable base of support, basic policy questions regarding the appropriate use of the process and the training and supervision of volunteer mediators will be the subject of increased discussion and debate. Change is needed. Change is inevitable. The District Court Media- tion Project looks forward to working with others to meet the challenge of change in a way that preserves the prom- ise of mediation. 0 ALBIE M. DAVIS is director of the mediation project of the District Court Department of the Trial Court of the Commonwealth of Massachusetts. TITX 0022262 309
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30ARD OF DIRECTORS American Judicature Society 'o promote the effective administration of justice founded in 1913 25 East Washington Street Chicago, Illinois 60602 312/558-6900 EXECUTIVE COMMITTEE President: L. Stanley Chauvin, Jr. Chairman of the Board: Victor G. Rosenblum Vice Presidents: Benjamin R. Civiletti E. G. Marshall Diana E. Murphy Secretary: William W. Crawford Treasurer: Karl F. Nygren Other Members: Brooksley E. Born Mark I. Harrison Lillemor T. Robb William K. Slate, II Robert F. Utter Noel V. Lateef immediate Past President: Talbot D'Alemberte Immediate Past Chairman: R. Arnold Kramer Executive Vice President and Director: George H. Williams Alabama: N. Lee Cooper, C. C Torbert, Jr. Ataska: Richard O. Gantz Arizona: 1ar', ~ ' ;on James 0 tiatnawav arrar.sas: : i. . .`:awbern aiifornia: !,n;el H Bie,man. J,..dith C Chirlin, Dorothy'N. e!son John L. Newburn, Jaoae Novotny, Robert D Raven, Gordon D Schaber Maynard J. Toll. James D. Ward Colorado: Jim R. Carrigan, E. Gordon Gee, Edward E. Pringle. Walter A. Steele Connecticut: James R. Greenfield Delaware: Victor F. Battaglia, E. N. Carpenter, II, Sally V. Hawkins, Andrew G. T. Moore, II Distrlct of Columbia: Brooksley E. Born, William J. Brennan, Jr., Gladys Kessler A. Leo Levin Florida: Martha W. Barrett, Talbot D'Alemberte. Ann Loughridge Kerr. Ben F. Overton, Roderick N. Petrey, Fletcher G, Rush, David U. Strawn, Alan C. Sundberg Georgia: Joseph R. Bankoff. Roy E. Barnes, Harold G. Clarke, Rosalie FitzPatrick, Robert H. Hall Hawaii: Clinton R. Ashford Idaho: Merrily Munther Illinois: David C. Bogan, Michael L. Cochran, William W. Crawford. Robert P. Cummins, John C. Feirich, Thomas B. Haynes, Albert E. Jenner, Jr., Thomas J. Johnson, Amy S. Levin, Karl F. Nygren, Victor G. Rosenblum, Gerald C. Snyder Indiana: John R. Carr, 111, Donald L. Jackson, William F. McNagny Iowa: W. Ward Reynoldson Kansas: E. Dudley Smith Kentucky: L. Stanley Chauvin, Jr., Richard M. Sullivan Louisiana: John C. Combe, Jr., Lawrence P. Simon Maine: Duane D. Fitzgerald Maryland: Benjamin R. Civiletti, Bruce A. Kaufman, Frank A. Kaufman, Robert L. Weinberg Massachusetts: Frederick G. Fisher, Jr., Roy A. Hammer, Julia A. Kaufmann Michigan: John S. Clark, Julia D. Darlow, Dean S. Lewis, Wade H. McCree, Jr., Henry L. Vtbolfenden Minnesota: G. Alan Cunningham, John C. McNulty, Diana E. Murphy, Brian P. Short, Robert A. Stein Mississippi: E. C. Ward Missouri: Robert O. Hetlage, Elmo B. Hunter, William E. Turnage +Aontana: Robert Corontzos 7J .i. ,..meson . Dhn 0 Nebraska: James W. Hewitt Nevada: Noel E. Manoukian New Hampshire: ',Voliam F Batcheider New Jersey: 'Nilliam J. Brennan. III, irwin I Kimme!man, Stewart G. Pollock New Mexico: Lucy M. Salazar, Robert S. Skinner New York: Herbert Brownell, Robert B. Fiske. Jr., David L. Hoffberg, Noel V. Lateef. Robert MacCrate, E. G. Marshall, Lillernor T. Robb, Maurice Rosenberg, Martha Redfield Wallace North Caroilna: E. Osborne Ayscue, Jr.. Anita C. Earp, James 8. McMillan North Dakota: Kirk Smith Ohio: John C. Elam, John P. Hehman, Earl F. Morr s, Robert G. Stachler, David C. 'Neiner Oklahoma: E. D. Hieronymus, William G. Paul Oregon: Douglas G. Houser Pennsylvania: Arlin M. Adams, Frank B. 8oyie, Arthur D. Hellman, Robert M. Landis, Arden J. Oison, Harold R. Schmidt, Bernard G. Segal, Wiiliam K. Slate. II, Paul H. Titus Rhode Island: Joseph R. Weisberger South Carolina: Augustine T Smythe South Dakota: Mark W. Barnett Tennessee: Albert C. Harvey, R. Arnold Kramer Texas: Cecil E. Burney, Cheryl H. Chapman, Joe R. Greenhill, Morris Harrell, Lloyd Lochridge, Blake Tartt Utah: Christine M. Durham Vermont: William B. Gray Virginia: R. Harvey Chappell, Jr., Thomas T Lawson, William T. Prince, Robert A. Shapiro Washington: J. David Andrews, Robert F. Utter West Virginia: Current vacancy Wisconsin: Shirley S. Abrahamson Wyoming: Robert E. Heizer, Jr., R. Stanley Lowe Past Presidents (Ex Officio Directors): William J. Jameson, Albert E. Jenner, Jr., Cecil E. Burney, Henry L. Wbolfenden, Herbert Brownell, Gerald C. Snyder, Elmo B. Hunter, Robert H. H®It, John S. Clark, Arlin M. Adams, Fletcher G. Rush, Robert MacCrate, E. N. Carpenter. II, Talbot D'Alemberte Psst Chairmen of the Board (Ex Officio Directors): Bernard G. Segat, William J. Brennan, Jr., Elmo B. Hunter, Earl F. Morris, Maynard J. Toll, Edward E. Pringle, John C. McNulty, Dorothy 1N. Neison, Martha Redfietd Wallace, R. Arnold Kramer TITX 0022268 I
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