Increasing Court Involvement in the Alternative Dispute Resolution Process
In the early stages of alternative dispute resolution, most courts recognized and allowed for outside ADR, typically mediation. This occurred primarily in the area of domestic relations. This branched out into business mediation in some areas, but in most cases, these resolution attempts were arranged and managed outside the court process.
Arbitration was also available, most often through arbitrators affiliated with the American Arbitration Association. Local better business bureaus offered then and still offer arbitration that involves consumer-business disputes.
Beginning in 2003, ADR began to become more a facet of litigation, managed and even sponsored by courts. Much of this began through efforts in Florida and Maryland. Florida introduced legislation that required mediation for most local disputes prior to litigation. Maryland began advertising mediation and ADR in general to the public as a means of resolving disputes prior to the filing of claims in court. California and Illinois were close behind.
It was about this time that ADR training was taking off across the United States. Attorneys and social laypersons were being trained to provide mediation services in schools, hospitals, nursing homes, and the workplace. It seemed that the primary focus of mediators during this phase was training other mediators. In fact, there was considerable discussion at these training sessions as to whether there would be enough work for all of the mediators being trained.
Fortunately, the trend has been and is continuing to be a significant increase in the ADR process throughout the civil court system. This seems to take one of two main tracks:
1. Mediation being offered directly by the courts, utilizing mediators employed by the courts themselves. In my case, the first mediations that I performed were for the Small Claims Division of the Akron Municipal Court, in Akron, Ohio, mediating small claims cases on Saturday mornings as a mandatory part of the process for the litigants. We were able to mediate a significant percentage of the cases, providing a satisfactory result for the litigants and an efficient outlet for the court. This has blossomed into a successful mediation program being offered in all Summit County Common Pleas cases on an optional basis for civil cases. As an attorney, I have participated in a number of these mediations and now discuss ADR at the time of initial client representation as a valid and positive method to resolve the case in an efficient time and cost basis. In addition, many courts are utilizing settlement conferences that are part mediation, part arbitration prior to final pretrial hearings in an attempt to resolve issues. If these conferences are not successful, the primary issues and differences are clarified for all parties, including the court, prior to the trial phase of the litigation. The mediation phases of litigation also seem to persuade the attorneys to be more cooperative throughout the process, as well.
2. Arbitration is also becoming a growing trend throughout the court system. Retired judges are offering their services to act as arbitrators, inside and outside the traditional court system. With our clients, we discuss mediation, arbitration, and litigation as the three possible steps in any lawsuit. Most arbitrations are still being held outside the courthouse by former judges or experienced attorneys; however, many judges in various jurisdictions are offering bench trials that are becoming more like arbitrations and less like litigation.
These increasing trends toward ADR as a primary and no longer just an “alternate” means of resolution are altering the litigation process also. In addition to discussing ADR with our clients at the time of representation, we utilize the upcoming mediation as one of the primary functions of our trial strategy. I prefer to complete all or most of the depositions prior to any ADR sessions, including mediation. I am finding that most trial attorneys that have experience with these processes are also focused on completing discovery sooner so that they are better prepared to mediate when the time comes.
In addition, firms and attorneys that were somewhat opposed to ADR just a few years ago are now open to mediation and arbitration as a way to resolve the dispute or at least narrow the issues prior to the negotiation and settlement phase that typically occurs on the eve of trial. These preliminary attempts at ADR, even if unsuccessful, give all parties valuable information that seems to provide stipulation of the agreed facts and clarification of the strong and weak positions of the parties, enabling the attorneys to work diligently on the remaining differences prior to trial rather than begin the negotiation phase with one week to go.
The courts have also shifted their approach to these disputes, assuming at the first scheduling conference that the attorneys have begun discussions regarding the ultimate resolution of the case. This is apparent in discussions with the judges’ staff attorneys as well as the magistrates and judges themselves. This trend toward increasing ADR is continuing and growing, and needs to be a part of every trial attorney’s arsenal and strategy to securing the best possible outcome for the client.
Jeffrey A. Carr is a solo practitioner in Akron, Ohio, is licensed in OH and PA, and concentrates on construction and real estate law, primarily as a trial attorney. In addition, Jeff is certified as a mediator and divorce mediator in the State of Ohio. He also serves as a mediator for FINRA, an organization that helps settle disputes in the securities and financial services area. He has served as an arbitrator for the Better Business Bureau and a mediator for the Akron Municipal Court. He currently teaches business law as an adjunct professor at the University of Akron.
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