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Top Ten Court ADR Developments in 2011, Trends for 2012

Heather Scheiwe Kulp, January 10th, 2012

The beginning of the year always prompts reflection and re-dedication to self-improvement. While we at RSI can’t promise you we’ll take our vitamins every day in the new year, we do pledge to continue bringing you expert resources about court ADR, including quality blog posts about of-the-moment ADR issues.  Let’s start 2012 with a look back at the top court ADR stories in 2011, grouped by theme. Jen Shack, Jessica Glowinski and Heather Scheiwe Kulp have also made a few predictions for the hot topics of 2012. Do you agree? Any to add?

2011

  1. Foreclosure mediation 2.0. While new foreclosure mediation programs popped up in Washington state, Hawaii, and D.C. this year, the trend with foreclosure mediation this year was not just that it expanded, but that it’s starting to mature. More programs analyzed their successes and challenges this year, with courts and policymakers looking at how programs are performing and changing them as needed – or, in Florida’s case, ending them entirely. Some great evaluations came out about programs in the New England states and Philadelphia.
  2. Protests. The Year of The Protestor carried into the ADR field, too. Attorneys in India, Italy and Turkey protested the court’s move toward providing more mediation services, as the attorneys felt that mediators would threaten the attorneys’ jobs.
  3. Comprehensive resources. With a greater demand for quality information about ADR, 2011 marked the publication of many great court ADR resources. Some notables: National Association for Community Mediation’s public resources page; Mediation World; and RSI’s own Court ADR Across the U.S. database of all statutes, rules, and ADR programs offered in each state.
  4. Constitutional challenges to ADR programs. State and federal courts heard a number of challenges this year to the constitutionality of certain ADR programs. In Nevada, Wells Fargo challenged the statewide foreclosure mediation program as unconstitutional, because the court can block the foreclosure if the bank does not participate in mediation in good faith. In Delaware, the Delaware Coalition for Open Government is challenging the constitutionality of the Delaware Chancery Court’s arbitration program, where judges sit as private arbitrators instead of as public judges in certain cases.
  5. Child protection mediation.  By now, most courts know that child custody and visitation issues are appropriate for mediation. But in 2011, a few developments brought child protection cases to the forefront of family law and mediation’s intersection. An RSI study, published in early 2011, cites the benefits and challenges of developing this type of program and makes recommendations for how courts may improve existing programs. In November, the Association for Family and Conciliation Courts released a draft Guidelines for Child Protection Mediation.
  6. Race, sexuality, and language. The ADR field is challenged to examine how it addresses issues of race, sexuality, and language. With more states recognizing legal protections for same-sex relationships, mediation programs specifically geared toward these families have emerged. An entire issue of Capital University Law Review was devoted to ADR and race, including a great article by Sharon Press on court-connected programs. Some states adopted rules that require interpreters be available for mediation, while others struggled to afford interpreters at all.
  7. Budget cuts. The economy prompted some states to end mediation programs. New York State’s ADR budget was cut drastically. Connecticut ended its criminal court mediation program. And North Carolina completely eliminated state funding for court ADR.   But some experts also suggested that mediation is exactly what is needed to provide resolution in the court system with limited budgets.
  8. Youth programs. While restorative justice programs geared toward youth have been popular for a while, courts and other entities that have contact with youth looked at other ways to reach out through ADR processes. School discipline, truancy, and youth misdemeanor programs became more prolific. In addition, the American Bar Association adopted Resolution 107B, which urges governments to support the creation of programs that divert alleged juvenile offenders into alternative dispute resolution systems.
  9. The end of Florida’s statewide foreclosure mediation program. See the blog on this development here.
  10. The future of court ADR. Leaders in the field explored the future of court ADR, including whether mediation as courts know it is “so 1999” and how neutrality as a value does or does not help the dispute resolution process.  Leaders are also exploring alternatives to mediation, such as early neutral evaluation, transformative processes, and pre-filing referrals to dispute resolution.

2012

Here’s what we think the future of court ADR will look like, at least in 2012. Admittedly, some of this may be on our wishlist, e.g., more evaluation, judicial education, and improved services for low-income disputants. But, at RSI, we do more than wish – we work to make these conjectures a reality. Do you have other wishes or observations to add?

  1. Local design and control of dispute resolution programs. Though the Florida statewide foreclosure mediation program has ended, localities still have the power to create their own, circuit-specific program that takes into account circuit needs and resources. Indiana’s family court program has already demonstrated that local plans for ADR programs work. Court ADR likely will see more localization and less centralization in 2012.
  2. Simplified forms. The legal profession in general, especially the legal aid community, is asking courts to create simpler, more user-friendly forms. This is no different for mediation programs, where the plain language movement and the increased number of self-represented parties will require mediation programs to rethink 75 cent words and reframe complex concepts in simpler language.
  3. Greater emphasis on monitoring and evaluation.  As the cost of all court processes rise, and as court budgets are slashed, courts will demand that programs justify their own existence. Courts will ask mediation programs to report not just numbers of mediations, but satisfaction with the process, quality of service provided, and number of cases that return to litigation after an agreement is made. Key to providing these answers will be monitoring and evaluation.
  4. Judicial education about appropriateness of cases to refer to mediation. Mediators and court administrators will provide broader and deeper education to the judiciary about how to refer the right cases to mediation. Mandatory mediation may become more nuanced.
  5. The definition of mediation will continue to be debated. As more processes are labeled mediation that do not fit traditional definitions of voluntariness, neutrality, and self-determination, there will be greater need for clarity of what various processes really are.
  6. More training for people involved in mediations with self-represented litigants. Two counties in Alabama, Colbert and Lauderdale Counties, have turned to mediation and plan to have trained volunteers in every courtroom to mediate cases with self-represented litigants in the new year. Also, some courts are exploring limited scope representation in mediation for litigants who filed pro se. In the Eastern District Court in Missouri, Jim Woodward is working on a program to train attorneys to represent otherwise pro se litigants in mediation only. Even the U.K. courts are answering the call to provide quality mediation services for self-represented litigants. In 2012, more time will be given to both training and mitigating challenges related to mediations with self-represented litigants.
  7. Mediation seen as an essential component in courts providing greater access to justice. See a study that leads the way for courts to argue that mediation is an essential part to providing access to justice.
  8. Greater development of elder mediation and other programs that address concerns of the Baby Boomer generation.
  9. More mediation aimed at consumer protection issues, including bankruptcy, credit card and other debt, and, yes, more foreclosure.
  10. A greater emphasis on good faith participation in mediation. As Heather has written before, this is not necessarily a healthy way to preserve the core values of mediation: voluntariness, self-determination, and confidentiality. But, as more non-mediators develop mediation programs, the core values that the Model Standards of Conduct put forth may not be seen as vital when compared with the interest in keeping parties accountable for behavior in mediation.
  11. More litigation about what happens in mediation. Though mediators want to stay out of the public litigation arenas, court decisions seem to point to greater instances of mediation confidentiality being challenged. See #7 for a good example.

What top stories in court ADR do you have from 2011? See any trends for 2012 that did not make the list?

Stay tuned to all of RSI’s excellent resources—the monthly e-newsletter, this blog, and the ever-growing CourtADR.org resource center—for up-to-date information on these and other court ADR trends. A happy new year to all.

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3 Responses to “Top Ten Court ADR Developments in 2011, Trends for 2012”

  1. […] Court ADR: Top Ten Court ADR Developments in 2011, Trends for 2012 blog.aboutrsi.org/2012/program-evaluation/top-ten-court-adr-developments-in-2011-trends-for-2012/ Filed Under: […]

  2. […] RSI predicted in its review of 2011 and forecast of 2012, litigation about mediation is on the rise. Share this […]

  3. […] a previous column about trends, we wrote about “Foreclosure 2.0.” We saw a trend then that continues into the present: with foreclosure mediation programs now in […]

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