General Practice, Solo & Small Firm DivisionMagazine
Court-Connected ADR: New Qualifications Guidelines Say Quality Buck Stops at the Court
By Susan Keilitz
As the marketplace for dispute resolution services continues to expand, courts are stepping up their efforts to ensure the quality and competence of practitioners providing dispute resolution services through court-connected programs.
These efforts are articulated in a new set of recommendations for qualifying practitioners in court-connected dispute resolution programs published by the Society of Professionals in Dispute Resolution (SPIDR). Qualifying Dispute Resolution Practitioners: Guidelines for Court-Connected Programs (Guidelines) is the work of the Commission on Qualifications for Court-Connected Dispute Resolution Programs. The commission is composed of experts who represent those who are concerned about the quality of dispute resolution in the courts – judges, court managers, dispute resolution program administrators, practitioners and researchers. Its Guidelines are intended to assist courts in developing meaningful, achievable, and fair qualification standards for dispute resolution practitioners.
The Guidelines build upon two earlier reports by the SPIDR Commission on Qualifications, Qualifying Neutrals: the Basic Principles (1989) and Ensuring Competence and Quality in Dispute Resolution Practice (1995). The principles set forth in these publications form the foundation for the Guidelines, including the key concepts that: (1) the formulation of standards of competence and qualifications should be undertaken through consultation with all stakeholders; (2) qualifications criteria should be based primarily on performance; and (3) multiple paths to competence should be recognized.
The Guidelines are clear that courts are responsible for ensuring the quality of dispute resolution in court-connected programs through the establishment and maintenance of qualification standards for dispute resolution practitioners.
This article looks at some of the principles and recommendations in the Guidelines that signify crucial shifts in the role of courts in dispute resolution: the commitment to court responsibility for ensuring the competence of dispute resolution practitioners, the acknowledgment of the importance of professionalism in dispute resolution practice, and the need for high standards to promote this professionalism.
Ensuring Practitioner Competence. The scope of the Guidelines establishes the fundamental responsibility of courts for practitioner qualifications for court-connected programs. Such programs are defined as circumstances in which a court maintains a roster of dispute resolution practitioners or providers, or refers cases to a dispute resolution practitioner or provider, whether on a voluntary or mandatory basis – including any service operated or funded by the court, any service or program provided by an organization, as well as services provided by an individual.
Recommendation 1.1 clarifies that courts are responsible for assuring the quality of the dispute resolution process when they make referrals to a process or practitioner, provide specific information on a process or practitioners, or maintain a list of practitioners.
The Guidelines acknowledge that the responsibility for ensuring competence is ongoing. Recommendation 2.8 states that courts should periodically reevaluate the competency of dispute resolution practitioners, considering factors such as party satisfaction and the practitioner’s ability to narrow the issues in dispute.
To be competent, court-connected dispute resolution services must be readily accessible to all potential parties, regardless of their income, race, ethnicity, gender, age, disability or other distinguishable characteristic. Such services also should be appropriate for the dispute and for the parties.
Achieving open access requires not only fair and uncomplicated referral procedures and opportunities for low-cost services, but also dispute resolution approaches that account for cultural and individual differences. The Guidelines advise that multicultural and bias-awareness training should be required of all practitioners, and that courts should consider experimenting with dispute resolution techniques that might better suit the needs or reflect the experiences of parties from the various economic, racial, ethnic and other groups in the community served by the court. Specifically, Recommendation 2.2 provides that courts should ensure that qualification requirements do not systematically exclude dispute resolution practitioners from particular racial, ethnic, or cultural groups. Recommendation 1.3 provides that courts should ensure wide access to services, satisfy the needs of the parties and promote innovation and experimentation in the types of services available.
Promoting Professionalism. The Guidelines emphasize the value of setting specific qualification requirements, performance evaluation measures, and standards of practice to ensure the competence of dispute resolution practitioners. Such requirements, standards, and accountability measures are the hallmarks of professionalism, which courts have the obligation to promote.
Recommendation 2.3 provides that courts should ensure that practitioners of particular dispute resolution processes have mastery of a specific set of skills and knowledge needed to perform that process. The Guidelines spell out some of these skills and areas of knowledge, and refer to competencies developed by professional organizations and court systems.
The Guidelines’ uncompromising stance on the need for training and the courts’ explicit role in setting standards for training is reflected in several recommendations. For example, courts should specify the content of the training curriculum, the methods of training used, and qualifications of trainers (Recommendation 3.1); courts should require "satisfactory completion" of the requisite hours of training in the dispute resolution process (Recommendation 3.3); courts should not accept prior professional experience as a substitute for training in dispute resolution (Recommendation 3.5); and courts should not accept prior training in a dispute resolution process as satisfaction of the courts training requirement unless the court determines that the prior training is substantially equivalent to that which is required by the court for the same process (Recommendation 3.6).
Professional competency also includes adherence to standards of ethics and professional conduct and accountability to the consumers of dispute resolution services. Recommendation 4.4 provides that courts should require practitioners to adhere to an ethics code and be subject to a grievance process. Issues commonly addressed in codes of ethics and standards of conduct include impartiality, informed consent, conflict of interest, confidentiality, disclosure of fees, advertising, and withdrawal from the dispute resolution process.
The Guidelines recognize that a grievance process is necessary to provide an avenue of relief for parties who experience real or perceived harm from the performance of a dispute resolution practitioner. Recommendation 4.5 admonishes courts to consider the potential civil liability of practitioners and providers in the design of dispute resolution programs, and suggests that the issue may be addressed through ethical standards, specialized training, malpractice insurance, and the development of qualified immunity for practitioners in court-connected programs.
Evolving Standards. The principles and recommendations presented in the Guidelines set high standards of court responsibility for establishing and monitoring the qualifications of practitioners in court-connected dispute resolution programs. Concomitantly, the Guidelines articulate great expectations for practitioner competence and professionalism. In crafting the Guidelines, the commission recognizes the variation across jurisdictions in both the development of dispute resolution services and the models employed to provide or make available these services. The Guidelines are intended, therefore, to be a tool that can be adapted to meet the individual needs of state and local jurisdictions.
Susan Keilitz is a senior research associate at the National Center for State Courts.
- This article is an abridged and edited version of one that originally appeared on page 7 in Dispute Resolution Magazine, Spring 1997 (3:3).