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February 29, 2024

Advancing Judicial Training for Mediation and Other ADR

Laurel Stevenson

Mediation has long been the preferred approach to resolution without extensive litigation, although other ADR options may be appropriate and available, depending on the jurisdiction. In utilizing court-connected ADR programs and training judges and staff, it is helpful to start with an understanding of applicable legislation.

For federal courts, The Alternative Dispute Resolution Act, 28 U.S.C. §§ 651-658, requires each district court to authorize and design its own ADR program. ADR procedures vary from court to court consistent with each court’s program. Federal courts also utilize Rule 16 settlement conferences pursuant to 28 U.S.C. §636.

Some states have adopted legislation regarding ADR, while other states remain without legislation. A detailed explanation of state courts with applicable legislation is beyond the scope of this article, but awareness of applicable legislative requirements is essential for program design and training.

In addition to knowledge of applicable legislation, understanding the types and complexities of cases within a particular court is helpful. A court with multiple eviction cases will require a different program and training approach from a court with multiple complex and/or multi-party cases.

An unusual or catastrophic event may also warrant a different approach to ADR design and training. In the wake of the pandemic, many courts had an influx of insurance coverage cases, along with multiple cases involving constitutional and other challenges to masking and immunization requirements. Assigning staff to monitor overall case filings and case developments can lead to improved judicial efficiencies, especially when combined with initial and on-going training for judges and staff.

A judge’s role is primarily adjudicatory with the law and rules often requiring a specific and structured approach, whereas mediation and other ADR tends to be a more flexible process. For active judges who also serve as mediators, transitioning from an adjudicatory role to a neutral in mediation requires skills that are essential for serving as a judge such as patience, impartiality, and respect, along with the ability to foster communication and collaboration.

At the core of mediation is self-determination which is “a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.” Parties are often influenced by competing values, and/or physical or emotional considerations. To assist the parties, “The mediator will ask questions, reframe issues, assist the parties to understand each other, and help identify solutions. Mediators do not take sides, pass down decisions, offer legal advice or reveal confidences.”

Using open-ended questions with parties can be an effective way for a neutral to explore competing values and other considerations. Below are but some examples:

Is there anything that would help you better understand the other party’s perspective?

Are there any practical concerns I should know that might help me better understand the dispute?

Do you have other concerns that we have not already talked about that you think would be helpful to discuss?

Have you considered how it might feel to you to have the dispute resolved today as opposed to a year or more of litigation?

Understanding when, if, and how to ask any of the foregoing questions is a challenge for all mediators; not only judges who serve as mediators. The Model Standards of Conduct for Mediators serve as fundamental ethical guidelines for all mediators in all practice contexts. In addition to self-determination, the Standards include but are not limited to: Impartiality; Conflicts of Interest; Competence; Confidentiality; Quality of the Process; and Advancement of Mediation Practice. As no one standard takes precedence over another, understanding when and how to balance the standards to honor and protect the process may vary from dispute to dispute or case to case.

Add in that some states have adopted the Uniform Mediation Act, and others have legislation with varying standards for mediators and other neutrals, providing judges and other court staff with appropriate training and information is essential. In North Carolina for example, Standard 1 Competency, subsection (a) provides that “A mediator’s most important qualification is the mediator’s competence in the procedural aspects of facilitating the resolution of the dispute, rather than the mediator’s technical knowledge relating to the subject of the dispute.”

A not uncommon situation in mediation involves power imbalances, including but not limited to: Size; Age; Gender; Race; Knowledge; Experience; and Position. There are also types of power which can arise such as “reward-based” or “connection-based.” Other complexities may exist which “is why recognizing the potential for a power imbalance, identifying where the power may be coming from, and watching for the signals that the imbalance is affecting the situation is important for a neutral to understand.”

Program implementation and training will vary depending on whether a court-connected ADR program offers only mediation, or other ADR forms such as facilitative communications, early evaluation, mini-trials, and/or summary jury trials. In developing training sessions and materials, having input from attorney-advocates, neutrals, judges and other participants regarding current trends, and/or challenges is helpful. Input can be obtained in a variety of ways, including roundtable discussions, surveys, or one-on-one conversations.

Given the variety of cases judges handle and the fact that many attorneys practice in multiple jurisdictions, having additional perspectives and staying abreast of litigation trends is essential to providing relevant and quality training. Another excellent source for expanding ADR programs and/or training is Indisputably.org. Please also feel free to contact the ABA’s Court ADR Committee for further information.

    Laurel Stevenson

    Mediator and Facilitator

    Laurel Stevenson is a 1989 graduate of the University of Missouri-Columbia School of Law where she was a member of the Journal of Dispute Resolution. She spent more than two decades as a litigator in private practice. In the second part of her litigation career, she also served as a mediator and facilitator. She has conducted hundreds of mediations, including more than 300 mediations via Zoom. In 2020, Laurel became the Director of the Mediation and Assessment Program (MAP) for the United States District Court for the Western District of Missouri. In 2023, she served as a Fellow in the ABA’s Section of Dispute Resolution. In August of 2023, she became a Co-Chair of the Section’s Court ADR Committee. The author’s views are her own. Laurel can be contacted at [email protected].

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