Dispute Resolution in the Public Sector: What Makes Programs Survive, Thrive or Die?

Vol. 20 No. 3

By

Looking at how ADR programs have developed in the public sector over the past 40 years is a huge challenge. This article does not attempt to provide a comprehensive review of public sector dispute resolution or the extensive literature on this topic;[i] instead it focuses on insights from interviews with colleagues who have substantial experience in state court and administrative agency dispute resolution programs. In preparing this article we spoke with 19 colleagues who work in programs across the country. We think their experience and wisdom can provide valuable guidance.

Beginnings: ADR Programs in State Courts and Agencies

Many trace the movement to institute ADR in state courts and agencies to the 1970s, pointing to the 1976 Pound conference at which Frank Sander, the Harvard law professor and chair emeritus of the editorial board of this magazine, proposed a “multi-door courthouse” where disputes could be channeled to the most appropriate process or forum. That forum could be in the courts, but it could also be in agencies with jurisdiction over the issues involved. Advocates for the use of ADR in the public sector promoted it, particularly mediation, as a way for government to offer disputants more efficient, effective, and satisfying outcomes.

In the 1970s and 1980s, many courts implemented ADR programs. A 1987 study identified 152 court-annexed arbitration programs and another 500 non-arbitration programs, including those for family cases.[ii] By the early 1990s, 38 states and Washington, DC, had implemented some form of mediation for child custody and visitation disputes.

These programs represented a significant advance in the use of ADR by the courts, but implementation was far from universal. According to the 1987 study, at that time there were 2,253 state courts of general jurisdiction and 13,231 courts of limited jurisdiction in the country, so the 700 court ADR programs represented a limited penetration. Furthermore, the distribution of these programs was uneven: all 152 arbitration programs identified in that study were concentrated in the courts of 22 states and the District of Columbia, and 118 of the non-arbitration ADR programs were located in just four states. Overall, the 1987 study characterized the court ADR movement as in its very early stage.

There is no comparable study of ADR programs on the administrative side of state government, but information about administrative programs for particular types of disputes suggests that implementation there was similarly uneven.

Why were ADR programs not more universally adopted in the public sector? A Policy Consensus Initiative 1999 Work Group,[iii] consisting of leaders in the ADR field, identified several barriers to getting programs started, including:

  •  Lack of information and negative perceptions about ADR
  • Uncertainty about legal authority
  •  Lack of incentives
  • Lack of high-level leadership and support for change
  • Lack of money
  • Lack of training

They recognized, however, that the most persistent obstacle was organizational resistance to change.          

Leaders in the ADR field began taking steps to overcome these barriers. They identified and worked with champions at many levels – public leaders who could persuade others and exert pressure on existing institutions to adopt new practices. They worked for passage of legislation and executive orders to require implementation of ADR programs and provide staff and funding. They made efforts to create incentives (and remove disincentives) for the use of ADR.

Recognizing that expertise was needed, both to start new ADR programs and provide ongoing assistance, in the early 1980s leaders began creating state ADR centers or offices in the judiciary and the administrative branch. Support for centers in state courts came from the ABA, the State Justice Institute, and the National Center for State Courts, among other organizations. Support for state offices outside the judiciary was initiated by the National Institute for Dispute Resolution, working in concert with the states.            

Based on the needs of each state and taking into account its particular political climate, state centers were located where they could gain leadership support and resources. The existence and structure of these offices varied widely from state to state. In 1998, a Policy Consensus Initiative study found 28 state centers, six located in the administrative branch, 15 in the judicial branch, and seven in state university systems.[iv] These state centers served as important catalysts for the establishment of dispute resolution practices by providing information, education, training, and assistance with designing, implementing, and evaluating programs.

The Current Picture 

State Offices of Dispute Resolution

Over the past 15 years, some state offices in the administrative branch have disappeared, victims of inadequate support from state leaders and lack of funding. Others survived by migrating to universities, which, with their focus on research and evaluation as well as education and training, proved to be comfortable homes. Some programs changed their names to reflect the broader range of services they deliver. For example, one of the first “state offices,” the Massachusetts Office of Dispute Resolution, which was formerly located in the Commonwealth’s Executive Office for Administration and Finance, is now at the University of Massachusetts Boston, a land-grant university with a focus on public service, and is called the Massachusetts Office of Public Collaboration.

Advocates of ADR were encouraged to see that in 2013, Minnesota passed legislation creating the Office of Collaboration and Dispute Resolution within its Bureau of Mediation Services. Although the office presently has only one staff member and a limited budget, it is the first new state administrative office to be created in more than 15 years.

Offices in state court systems seem to have fared better than those in the administrative branch. Resolution Systems Institute’s Court ADR Resource Center identifies state ADR offices in 31 states. New state offices established in the judicial branch within the last 15 years include Maryland’s Mediation and Conflict Resolution Office (MACRO), which supports ADR efforts both within and outside the courts.

Administrative Agencies

Today mediation programs can be found in a variety of agencies, addressing disputes in a wide range of areas: consumer protection, special education, workers’ compensation, workplace/employee grievance, tax appeals, agricultural loans, home foreclosure, (both state agency and court-based), licensing and permitting, and state construction contracts. There is no consistency in covered subjects from state to state.

At the federal government level, a 2007 study similarly found great variation in the application of ADR in different program areas.[v] ADR was most frequently applied in equal employment opportunity and personnel disputes, less frequently in the area of contracting and procurement, and least frequently in civil enforcement disputes.

Generally speaking, our interviewees observed that state agencies have tended to take ADR programs in-house and use staff as mediators or facilitators. A few states, such as Texas, offer centralized mediation services through state hearing officer boards or offices of attorneys general. In some states, the push has been for agencies to contract for mediation services with practitioners outside government.

In states that have suffered fiscal problems or had a change in political makeup, interviewees described staffing and funding cutbacks that have led to the reduction or elimination of programs. They reported the following reasons why programs that once appeared established are now largely unused or have been abolished altogether, a list that looks remarkably similar to the one of obstacles to establishing ADR in the first place:

  • Lack of mandates to support continuing the programs
  • Budget cutbacks – especially when programs lacked mandates for support
  • Lack of good program design and/or feedback mechanisms to make corrections
  • Lack of leadership support or support from constituencies that serve as gatekeepers, including the legal community
  • Lack of key organizations, particularly state offices, for ongoing support
  • Lack of research and data to demonstrate program impacts and benefits – without effective evaluation, there is no way to justify a program’s existence

When asked about new initiatives, interviewees noted that mediation programs seem to spring up when new types of disputes arise, such as over foreclosures, oil spills, hurricane damage, or even cell phone towers, but these initiatives may not last because of poor design, lack of feedback and evaluation, or lack of buy-in from user groups.

Agencies still employ mediated or facilitated processes for disputes over policy development and implementation. Interviewees also described how agencies, in response to what they have learned from involvement with mediation, have made operational changes, moving “upstream” to try to resolve issues before they become deeply entrenched disputes. “Collaboration” has become a more acceptable term than “ADR,” and a broad range of collaborative processes are now being used to engage diverse stakeholders and the public. Again, interviewees observed that, over time, agency staff have started doing more and more of this work themselves. (See the article on Public Policy Mediation in this issue, page 22.)

In states where education and training programs for government employees continue through universities and other sources, however, interviewees are seeing increased interest and capacity for using ADR processes within state agencies and staff who assume helpful roles as champions for these practices.

Programs and Practices in Courts

Information gathered from colleagues and other sources suggests that institutionalization of ADR in the state courts continues to be uneven. On the negative side, some court-related ADR programs, including long-standing ones, have been downsized or eliminated as judicial budgets have been cut (New York state court programs and the Los Angeles programs, as described below, are just two examples).

 Court-related ADR Programs Threatened

Since 1981, the New York state court system has administered community dispute resolution centers serving all 62 counties of the state. Among other things, these centers provide ADR services in small civil and family cases. In mid-2011, the budget for the state court system was severely cut, and the budget for these centers was reduced by 50 percent. While these centers have implemented partnerships and other innovations to stretch their remaining resources, the budget cut has resulted in reduced services.

The Superior Court in Los Angeles County has offered some form of court-connected ADR for civil cases since 1978, beginning with arbitration and ultimately including mandatory and voluntary mediation, voluntary settlement conferences, and early neutral evaluation. In fiscal year 2008-2009, more than 17,500 cases were referred to these programs. In June 2013, in the face of large budget cuts, the court terminated all these ADR programs; it now offers only judicial settlement conferences and, through community dispute resolution programs, day-of-trial mediation in some small claims matters.[A1] 

Numerous articles have described how inadequate funding and other factors, including an over-focus on achieving settlement, have raised concerns about the quality of ADR services provided in court programs. For example, a 2007 article reported that because of inadequate resources, some California courts can offer parents only a maximum of one hour of mediation to resolve child custody and visitation issues.[vi]

In addition, some interviewees reported that as a result of growth in the private dispute resolution market, there has been pressure from private ADR providers on court programs, particularly those that provide free or low-cost services, to restrict their services to lower-value cases or low-income litigants or to change to a market-rate panel model. Some interviewees also believed that the availability of private alternatives contributed to the under-utilization of voluntary mediation programs for larger-value civil cases. Interviewees reported a continuing trend away from utilization of court arbitration programs, particularly where court mediation programs were available.

On the positive side, some interviewees reported long-hoped-for cultural shifts: a greater acceptance of ADR’s value where programs have been in place for decades; former neutrals now becoming judges who support use of ADR; and a greater proportion of attorneys who are more knowledgeable about and willing to use ADR. Many interviewees identified court ADR programs that have survived relatively unscathed despite court budget cuts and other pressures. Interviewees also identified innovative developments, including programs that are sharing some functions, such as case screening or scheduling, with partner organizations – community dispute resolution centers, local bar associations, or local law schools – and the development of new, more efficient tools for collecting and analyzing data about court ADR programs.

The number of new programs in the last 10 to 15 years reported by interviewees was also surprisingly large. As in administrative agencies, new court ADR programs were implemented to address emerging issues, such as foreclosure. New programs also focused on case types that present particular challenges or were not previously served by existing programs, such as civil harassment cases, large complex tort cases, and cases involving self-represented litigants.

Asked what makes a difference in whether court ADR programs survive, thrive, or die, interviewees often cited factors similar to those identified in administrative agencies, including:

  • Having a program “champion” within court or bar leadership
  •  Having a mandate for a certain ADR program
  • Having a dedicated funding stream for the program
  • Collection of data to monitor program functioning and/or help demonstrate achievement of program goals

Having judges and court staff who are knowledgeable about ADR and who have access to, or involvement in, court policy and budget-making, interviewees indicated, was crucial.

One factor alone was not generally enough to ensure a program’s survival or good health. For example, some programs with knowledgeable, supportive judges and staff did not survive if those individuals were not part of budgetary decision-making. Similarly, statutory mandates alone have not proven sufficient to sustain the use or quality of some court-annexed arbitration and custody mediation programs. However, interviewees told multiple stories of programs that did survive, despite cuts in court budgets and other pressures, when a key leader – such as a chief judge – was a champion.

Lessons Learned

Our interviewees and other leaders with long experience in the field all agree that ADR in the public sector is not where we anticipated it would be 40 years into this movement. The implementation, sustainability, and quality of programs are uneven. Although there are many reasons for this, it seems likely that, in the initial zeal of the movement, we were unrealistic about how quickly public institutions can change.

We seem to have expected successful implementation of an ADR program in one agency or court to remove barriers in other settings. While experience should – and happily often does – inform and assist in the implementation of ADR programs in new settings, each new setting has its own leaders, stakeholders, and culture. As a result, the same barriers have to be overcome again and again in each new setting.

We also underestimated organizational resistance to change. To successfully introduce new programs in courts and administrative agencies requires an understanding of those institutions because, as sociologist John W. Meyer has written: “their cultures, customs and habits are such that individuals or organizations within them, faced with a new problem, use their accustomed older solutions whether or not these ever worked or can reasonably be expected to work.”[vii] Successfully instituting a new practice or program may require more attention to how to integrate new approaches alongside traditional practices – or even how to change those traditional practices. That is a tall order, particularly when practices are strongly institutionalized, as in government bureaucracies.

Courts and administrative agencies took ADR programs and adapted them to their institutional cultures, some more beneficially than others. Our interviews suggest that good program design, one that recognizes organizational factors and is accompanied by a good feedback and reporting system, is critical to ensuring that an ADR program maintains high quality and is true to its goals. Ongoing leadership is also needed at many levels to secure political support as well as funding for both existing and new programs.

Succession planning is also critical. When well-known state champions have retired or left the scene and new leadership has not emerged, state offices, as well as agency and court-based ADR programs, have suffered or gone out of business. Interviewees identified strategies for developing new champions including:

  • Taking advantage of every opportunity to provide information, education, and training about ADR to key leaders
  • Involving important stakeholders in program development and ongoing program policy
  • Creating direct lines of communication with key leaders

The disappearance or diminution of state offices has meant that their staff members’ expertise was not available to support existing programs and leaders or find and cultivate new ones. State offices can play a critical role in overcoming ongoing organizational resistance to change: They can serve as catalysts or change agents, providing the knowledge and information that enable agencies and leaders to accomplish the objectives they set for their ADR programs. One promising illustration comes from the Massachusetts Office of Public Collaboration, which recently was able to get restoration of state funding for community mediation centers using an evidence-based study of the value and potential of community mediation.[viii] Its study convinced budget analysts, and ultimately the legislature, that the mediation centers deserved funding.

Perhaps the overarching lesson is that we need to be patient and persistent, that instituting high-quality ADR programs in thousands of settings is slow work, requiring continuing efforts to educate new leaders and demonstrate how ADR can provide efficient, effective, and satisfying outcomes in disputes resolved through courts and administrative agencies.

Chris Carlson is the former Executive Director of the Policy Consensus Initiative. She was the founding Executive Director of the Ohio Commission on Dispute Resolution and served as an advisor to the National Institute for Dispute Resolution's State Offices program. She can be reached at chrisrmcarlson@gmail.com. Heather Anderson is a Senior Attorney in the California Administrative Office of the Courts, where she has worked on a variety of projects designed to support and assist in the development of court-connected ADR programs for civil cases. She can be reached at heather.anderson@jud.ca.gov.

[1] See Symposium, Dispute Resolution and Capitulation to the Routine: Is There A Way Out?, 108 Penn. St. L. Rev. 1 et seq. (2003); Symposium, The Future of Court ADR: Mediation and Beyond, 95 Marq. L. Rev. 799 (2012).

[2] Susan Keilitz et al., State Adoption of Alternative Dispute Resolution: Where is It Today, St. Ct. J., Spring 1988, at 4, 6-8.

[3] Policy Consensus Initiative, Report on Barriers to the Use of ADR in the States and Approaches to Overcoming Them, available at http://www.policyconsensus.org/publications/reports/state_adr_barriers.html.

[4] Jill Purdy, Policy Consensus Initiative, An Overview of State Dispute Resolution Programs (1998), available at www.policyconsensus.org/publications/reports/state_dr_programs_overview.html .

[5] Tina Nabatchi, The Institutionalization of Alternative Dispute Resolution in the Federal Government, 67 Pub. Admin. Rev. 646 (2007).

[6] Judge Leonard Edwards, Comments on the Miller Commission Report: A California Perspective, 27 Pace L. Rev. 627, 649-50 (2007).

[7] John W. Meyer, Reflections on Institutional Theories of Organizations, in The SAGE Handbook of Organizational Institutionalism 788 (Royston Greenwood et al. eds., 2008).

[8] Susan Jeghelian et al., Mass. Office of Public Collaboration, Legislative Study: A Framework to Strengthen Massachusetts Community Mediation as a Cost-Effective Public Service (2011), available at http://cdn.umb.edu/images/mopc/MA_Legislative_Study_Report_on_Community_Mediation_Nov_2011.pdf .

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