As someone working to develop and improve court ADR in Illinois, I have long been envious of the comparatively vast resources available to do this in Maryland. And I’ve also been very interested in what Maryland’s multi-year statewide evaluation of ADR will find. Recently, the research team involved in the evaluation published its report on Maryland’s ADR landscape. To some extent, the report was eye opening. Despite a Supreme Court that is highly supportive and a statewide organization with ample funding, in some ways the landscape looks very much like Illinois’, where the Supreme Court has not taken a leadership role and funding has been limited and unreliable.
In both Maryland and Illinois, the jurisdictions decide for themselves whether they want to implement ADR for most types of cases. (Both states mandate custody and visitation mediation.) In Maryland, however, there are funds available for program implementation that are absent in Illinois. The judiciary supports a statewide organization (MACRO, the Maryland Mediation and Conflict Resolution Office) that in turn assists programs in program development and provides grants to some programs for implementation. And yet in Maryland, as in Illinois, implementation isn’t universal. For example, just over half of the circuit courts in Maryland have civil case ADR and fewer than half have juvenile ADR programs. In Illinois, civil case mediation exists in just under half of the circuits, and juvenile programs are in place in about a third of the circuits.
Another similarity between the states is that courts in both states have adopted differing ADR program models rather than all programs being the same. In Illinois, courts select a model they’ve seen in other circuits that appeals to them, and when Resolution Systems Institute is involved, we encourage courts to adopt models that fit their needs. The same may be true of MACRO.
The other thing that struck me is the difficulty in getting even the most basic data – the number of cases that went through an ADR process. In both states, there are similar barriers to gathering the information, including court case management systems that were developed without the ability to track cases in ADR, as well as difficulty in obtaining reports from neutrals. But most of all, I would gather that Maryland is similar to Illinois in that courts are in general just beginning to understand the importance of tracking ADR program data.
So what does this all mean? First, there are various reasons that courts don’t adopt ADR programs. It’s not all about the money or the lack of information. Sometimes courts just don’t find the need for ADR. For example, if a circuit has one judge with a small claims call and that call is easily handled, the court is not likely to see a need to devote resources to a mediation program for those cases.
Second, courts like developing their own models for ADR service delivery, and they should. Courts have different demographics, different access to mediators, and different goals for their programs. They should therefore develop models that fit them.
Third, we need to work harder to implement monitoring systems that accurately track what is happening with cases in ADR. The barriers to gathering accurate data are large, but both states are taking steps to correct this. MACRO has developed a database and universal data collection tools for programs, and as I said above, the state is undertaking a massive multi-year evaluation of ADR. In Illinois, the AOIC has developed universal monitoring forms and reporting mechanism for family mediation. In addition, RSI has developed a statewide database for foreclosure mediation programs that uses uniform reports and surveys and will be conducting a statewide evaluation of those programs.
Just as a Tale of Two Cities concludes with, “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known,” I might conclude this post in a similar vein. The monitoring and evaluation of court ADR is, indeed, far, far better than it has ever been. But unlike Dickens’ character, neither Maryland nor Illinois is going to rest.