The connections between lawyers and community mediation centers are strong and varied. Many lawyer-mediators received their basic mediation training through a community center. Lawyers and lawyer-mediators often work as volunteer mediators or serve as directors on community centers’ boards. Still others, including many lawyers who do not practice as mediators, refer clients, especially those whose disputes may not warrant litigation or a private mediator’s fee, to community mediation centers.
Community mediation centers have become part of the fabric of many local legal cultures, however, there is growing concern, if not outright alarm, about the centers’ long-term sustainability and ability to respond to increased demands for service.
This article examines one state’s experience in implementing a statutorily created statewide community dispute resolution system and offers recommendations for moving forward.
A Statewide Approach to Implementing Community Dispute Resolution
Michigan’s Community Dispute Resolution Act was enacted in 1988 to provide mediation and other forms of dispute resolution to citizens “as an alternative to the judicial process.” The program is administered by the Office of Dispute Resolution within the Michigan Supreme Court, State Court Administrative Office (SCAO). The Office of Dispute Resolution does not provide direct dispute resolution services to citizens but rather makes available grant funding to nonprofit and governmental organizations that provide such services.
In addition to administering all grant-related activities of the program, the office has developed mediator training standards, standards of conduct for mediators, and policies and procedures for promoting effective and accountable local dispute resolution center practices. The office also routinely evaluates mediation services, coordinates task forces and committees charged with improving ADR practices , and develops consumer education materials.
While each center is, by legislation, intended to be community-based and is encouraged to “target local dispute resolution needs,” the mediation process used by the centers today derives from a model curriculum developed by professors Joseph B. Stulberg and Lela P. Love in the 1990s.
Having a unified training approach and a model mediation process means that citizens, including lawyers who regularly participate in mediations, can expect to have the same type of mediation experience whether they are in Michigan’s Upper Peninsula or in downtown Detroit. Also, when mediators convene for advanced training programs, their shared training background serves as a ready foundation on which to build advanced skills.
Another advantage of state-level coordination of some program activities is that a state office may be better situated to obtain grants to implement new services. In Michigan, the SCAO has obtained funding to establish agricultural mediation, special-education mediation and child-protection mediation, as well as funds to provide domestic relations mediator training programs throughout the state and to conduct a variety of evaluation studies. A state office may also be able to liaison more effectively with other state agencies to secure funding and referrals.
If coordinating community mediation efforts through a state-level judicial office has had a downside, it is that over time, many of the centers have come to be recognized chiefly as court programs, and this has made effective local fund development much more challenging. Put differently, because so many community programs provide their service within the walls of the courts or through court referrals, as the “alternative to the judicial process,” many people – and many possible funders – think of them as extensions of the courts rather than community organizations worthy of support.
As centers continue to diversify their referral base, changing the public perception of being of service only to courts is one area of challenge they will continually need to address.
The two predominant state-level funding sources are general fund appropriations and court filing fee assessment revenue. Other center funding sources include a combination of fees for service, grants and locally raised non-restricted funds.
Michigan’s community dispute resolution initiative was originally funded by a $2 assessment per civil court filing, earmarked for the Community Dispute Resolution Program (CDRP) Fund. In the 1990s, the fund generated approximately $1.2 million and, because it was interest-bearing, as much as $85,000 in additional interest revenue could be used either to offset administrative costs or provide grants to the centers. In times of low interest rates, such as today, however, the interest totals less than $2,000 per year.
In response to lobbying of legislators by centers, in 2000 the legislature added an additional $500,000 annual general fund appropriation to the CDRP fund. Later, this appropriation was merged with the $2 fee assessment into a new formula that resulted in the CDRP fund’s receiving 5.2 percent of all civil filing fees received by the Michigan Department of Treasury. Until recently, this generated approximately $1.8 million annually for the program.
There are some advantages to this approach but also some limitations. Perhaps the key benefit is that the annual process of funding CDRP centers is typically not subject to the vagaries of the annual state budget appropriation process. Another advantage is that because statutes setting the amount of filing fees and their distribution are infrequently amended, the total amount of funding available for community mediation efforts has been fairly predictable.
New York State’s support of community dispute resolution centers, managed through an annual legislative appropriation process, provides a clear contrast. In 2011, the New York State Unified Court System received a $140 million funding reduction, resulting in a $4 million decrease in community dispute resolution funding. The 41 percent decrease in program funding resulted in the layoff of approximately 80 staff members, office closures, consolidation of service areas and reduction in hours of operation. (See the article by Kleiman in this issue).
This drastic result could, of course, take place even in states where funding is based on filing fees; a legislature could decide to reappropriate dispute resolution fees to other purposes. Still, the point here is that the relatively more secure filing fee-based funding mechanism may have some advantages over an annual appropriations process. However, even a filing fee system should not be considered a fail-proof method for long-term funding.
The primary disadvantage of a filing-fee funding model is that filing fee decreases result in reduced program funding. In Michigan, as elsewhere, civil filings are declining: Between 2007 and 2011, Michigan’s limited jurisdiction court – courts having jurisdiction up to $25,000 – civil filings decreased by over 95,000 cases, or 25 percent. Similarly, the number of small claims filings decreased by over 26,000 cases, or 31 percent. The combined effects of declining case filings, an interest rate of just over 1 percent, inflation (although currently low) and rising administrative costs have resulted in an 18 percent decrease in the CDRP fund from its all-time high in 2009.
National Funding Challenges
In a recent survey of community centers, the National Association for Community Mediation (NAFCM) identified a recession-related trend of declining funding for community dispute resolution and concluded that “[m]any of the challenges facing today’s programs are directly tied not to service demand or evolving conflict trends, but to funding hurdles and hardships.”
The authors of the NAFCM report, in a companion law review article, went on to paint a fairly grave picture of community mediation funding, noting that in 2010, 66 percent of survey respondents reported that their organization was negatively impacted by the recession and poorly positioned for sustainability in 2011.
The authors’ recommendations for responding to the centers’ funding challenges were to: (1) fundraise smartly; (2) seek specialized professional development; (3) enhance public awareness; (4) explore economies of scale, e.g., in developing standardized forms across service areas; (5) diversify funding sources through social entrepreneurial ventures; and (6) better collect and evaluate data.
While these remain important recommendations, they speak chiefly to local efforts community centers can take to bolster local funding. Additional steps might include collective and collaborative efforts by centers to obtain increased state and federal funding through the executive, legislative and judicial branches of government.
Despite the inherent challenges associated with state-level filing fee or legislative appropriations approaches to funding, centers may need to increasingly act in concert to diversify their funding approaches in the years ahead. In addition to the local efforts NAFCM has identified, centers may need to collaborate far more extensively to identify and obtain additional funding that would proverbially “raise all boats.”
A challenge, yes, but there has been some success in this area. In Michigan, centers receive funding through multiple sources:
• The Michigan State Department of Education, for special-education mediation.
• The U.S. Postal Service, for employment mediation.
• The U.S. Department of Agriculture, for loan and insurance claims.
• The Michigan Department of Civil Rights, for EEO claims.
• The federal Access and Visitation Grant, for parenting time and custody mediation.
The State Court Administrative Office and network of centers continue to seek out additional service areas, including those that can be supported with additional revenue.
Performance Measure Funding
A key function of a state office is to disburse program funding. Originally, Michigan’s program funding was entitlement-based. Centers received the total of funds generated through the civil court filing fees collected in their area.
This led to significant funding inequities related to demographics, since far fewer cases were filed in the more rural parts of the state. More problematic, however, was that once a center met a minimal threshold for funding, the formula provided little incentive for growth or efficient management.
In response, and working in conjunction with the centers, the SCAO developed a performance funding model incorporating the factors of case complexity – measured by the time spent on a case – and volume.
Approximately one-third of all available funding is now disbursed on the basis of performance measures, and while the formula is not perfect, it has been a significant step toward awarding funds on the basis of performance rather than entitlement.
Ensuring Quality of Process
While it might seem that promoting quality of service would take a back seat to responding to financial pressures, the reverse appears to be true. Centers have actually stepped up quality-assurance efforts, not only to ensure that clients have the best possible mediation experience but to help show prospective referral sources and funders that referrals of clients or dollars are a good investment.
The centers typically use a co-mediation model in which mediators and staff debrief cases, allowing everyone involved to learn from experience and talk about ways to improve services. Many centers also ask clients for feedback, through satisfaction surveys or other forms, and review those comments. Additionally, there is a clear trend toward centers conducting periodic reviews of mediators through observations conducted by experienced practitioners, and most centers also hold local advanced training seminars to develop mediators’ skills and address questions that invariably arise as the complexity of cases increases.
Providing mediation services through 18 centers to all of Michigan’s 83 counties will remain a significant challenge, but a number of opportunities may lie ahead for centers to “think differently” about expanding their services.
Parties can be hundreds of miles apart. Although striving to provide mediation venues close to the parties, with the growing availability of low-cost technology, centers have begun discussing how to manage mediation effectively using tablets, Skype, GoToMeeting video conferencing or other web-based tools. While bringing parties together for face-to-face meetings remains a defining feature of community mediation, the realities of funding, client preference and geography are likely to compel centers to adopt readily available technologies.
Assessing the role centers can play in helping courts meet specific performance objectives may present an additional opportunity. The Michigan judiciary has recently taken bold steps to measure and publish local court performance measures. The Michigan Supreme Court has adopted an Administrative Order requiring all courts to comply with State Court Administrative Office guidelines for collecting and publishing court performance data. Among the performance measures, modeled after the National Center for State Courts’ “CourTools” document, are compliance with case disposition time guidelines, perceptions of fairness, user satisfaction and collection rates. Dispute resolution centers, by providing early mediation services, are well poised to help courts meet a number of case management-related performance objectives.
Centers have been increasingly developing restorative justice services, in which juveniles are held accountable for their actions and victims and community members have a role in repairing the harm. As communities search for new ways to integrate young people, as an alternative to the “school-to-prison pipeline,” centers may have an important role to fulfill in facilitating victim and offender conversations.
Centers are also applying hybrid mediation processes to truancy, suspension, and expulsion-related conflicts in schools and are assessing their role in addressing bullying, although the mediation process itself is not a recommended vehicle for addressing this pressing problem in America’s schools.
Many centers have branched out into providing revenue-generating training programs for people whom the center does not expect to serve as volunteers. Such programs range from half-day workplace conflict management workshops to full 40-hour mediation training programs that may be attended by managers, human relations staff, state office workers, university professors and others.
Centers should also assess how they fit into court dockets designed to address specific community issues, including drug courts, drunk-driving courts, mental health courts, veterans’ courts and business courts. With the rapidly emerging focus on identifying litigants’ underlying issues, community mediation centers are well positioned to offer mediation and meeting facilitation services.
Community mediation also squarely addresses “access to justice” issues that many bar associations across the nation have identified as being problematic. Centers should be in touch with their state and local bar associations to learn about current access to justice initiatives and how they can help with them.
In an era where local funding remains precarious, as two writers describe it, defining their program’s goals in responding to community conflict remains a critical task for centers’ boards of directors. Board members might also take the opportunity to assess how their individual programs could work more concertedly to pursue state and national funding streams to continue the pioneering work begun only three decades ago, to support neighbors helping neighbors resolve some of life’s most critical challenges.
The nation’s network of community mediation centers has contributed significantly to citizens’ having access to high-quality, affordable and prompt dispute resolution services. The centers remain a tremendous resource for attorneys seeking mediation training and experience as mediators, as well as for clients whose cases might not need litigation and who can’t afford private mediation. In short, attorneys would do well to reach out to their local dispute resolution centers to learn how best this important community resource can be sustained. We can only hope that with additional local and state support, the centers will survive the current financial downturn and achieve even higher levels of service in the years to come.