The resulting report, however, speaks ominously of a threat to the traditional civil trial: alternative dispute resolution.

In Florida state courts’ fiscal year 1987/1988, 2,413 of 155,407 civil cases were disposed of through a traditional trial. In fiscal year 2009/2010, the number of cases was 401,463, with 879 being disposed of through a traditional trial. While the report focuses on the shrinking number and percentage of cases that went to trial (from 1.6% down to .2%), I want to focus on a different trend these numbers indicate.

Administratively, filing clerks, court clerks, and judges had to manage a docket increase of nearly 300% in 22 years. With funding to state courts being cut drastically around the country, these judicial employees likely had to manage this increase with fewer funds per case than were available in 1988. There was probably not a decrease in the number of case management calls, first hearings, or settlement conferences the judges conducted. Nor was there a decrease in the number of motions or amendments filed, for which the clerk and judge are responsible. So, the decrease in trials does not mean the judiciary has been working less or needs to put more effort into ensuring due process. Rather, the increase in caseload means the judiciary needs more assistance with managing the overwhelmed docket, especially as personnel face increased pressure to clear dockets with fewer dollars.

Enter ADR.

Studies indicate that ADR can, if used appropriately and early in a case, create greater efficiencies in the legal system. As expected, disposition can happen more quickly in mediation than in traditional trials. Also, litigants are often very satisfied with ADR, thus having a better perception of a judicial system that refers them to the process most appropriate for their money, time, and interest in fairness.

The fear is that ADR will take over the traditional court system, taking precious dollars away from the courts, reducing the skill of attorneys to litigate a case, jeopardizing people’s constitutional right to assert their claims in front of a judge, and reducing the number of verdicts that set precedent for later cases. Certainly, ADR can reduce the number of cases that go to trial and thus, the number of hours an attorney may bill for one case. Additionally, ADR processes may keep some important questions of law from entering public record. But the anxiety is misplaced.

First, not all cases are appropriate for ADR, including those cases in which important, first-impression rights are being asserted. Courts and attorneys can and should do a better job of screening cases before sending them to ADR processes that could result in agreements that are not in the best interest of the parties. But that is not the fault of ADR, but rather a call for the ADR community to better educate courts and attorneys about how to screen cases for appropriate dispute resolution referral. Indeed, a 2009 Multnomah County, Oregon, report similar to the Florida report indicates that the concern over the lost jury trial is less about increased referrals to ADR, which the report says is a good thing, and more about the appropriateness of an increase in bench trials as opposed to jury trials (see page 6 of this report). For most cases, the differences in outcome between ADR and a traditional trial are attributable to the process itself rather than the content of the dispute. Indeed, an overwhelming majority (97%) of attorneys surveyed in one study believed that the outcome of mediation in their case was fair.

Second, ADR saves litigants’ money at the same time it allows them to determine their own outcome; most litigants would not be able to afford a full trial, as the Florida report points out, even if they wanted to have one.  Also, it can free up attorneys to represent more people, and since significant numbers of people go to court without an attorney, the bar is not likely to run out of cases, even if some are pro bono or lower cost. As a legal field, all players can focus more on providing greater access to justice for all litigants, improving the judicial system, and ensuring people’s disputes are managed and resolved justly, appropriately, and efficiently.

The conundrum of party attendance has me thinking about attendance in mediation. Some recent developments have revived the issue of what constitutes attendance, and who should attend. General consensus among neutrals, it seems, is that whenever possible, both parties in a dispute should attend mediation in person.

Florida seems to agree. Effective January 1, 2012, Florida’s mediation procedures were amended to require in-person mediation attendance by a “final decision maker” with “full authority to settle without further consultation.” This person is a representative other than the party’s attorney. Moreover, if the case involves an insurer, the amendment requires physical attendance by a “representative of the insurance carrier for any insured party who is not such carrier’s outside counsel and who has full authority to settle in an amount up to the amount of the plaintiff’s last demand or policy limits, whichever is less, without further consultation.” The court must know the identity of these representatives at least ten days before mediation. It’s like RSVPing for a party and being required to attend, regardless of how cumbersome it might be to do so.

Though not quite the same as appearing in person, telephonic attendance is permitted in a variety of cases, and is especially popular when parties are large corporations, like banks, whose representatives are geographically far away from the court case. The telephone is convenient, especially if the mediation is in a private office (some courts do not have telephones available for mediators to use). And the telephone ensures an important party can participate in the conversation without adding travel costs to the case. This is helpful for both corporations and low-income people who live in areas that make travel to courthouses difficult. Like my friend whose birthday party I had to miss, parties can still feel validated even if the other person is on the phone.

Some neutrals believe that telephonic attendance creates a sense of distance from the problem in the mind of the telephonic participant. A mediator may have a harder time reflecting back a telephonic participant’s emotions, since the mediator cannot see gestures or hear minor inflections in the voice. Without that kind of engagement, the mediator may find it difficult questioning the party’s present reality and use their sense of reality to help reach settlement. The distance may also further entrench a party’s sense of the inequality in bargaining power; if one party was allowed not to be physically present in the room, the physically present party may feel put upon or less important that the party who was able to opt-out. This may denigrate trust between the parties and make settlement even more challenging.

If the telephone is being used less, and in-person attendance with full authority to settle is being required more, how will attendance be defined when courts start following the international trend and use online mechanisms (chat rooms, video conferencing, texting, etc.) to mediate? I certainly don’t want to toast a friend’s birthday over the Internet, but maybe I wouldn’t mind if a court allowed me to settle my dispute that way.

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.

While I’m not ready to exchange my mittens for a beach blanket quite yet, I am thinking fondly about the upcoming spring activities in the ADR world. Specifically, I’m excited to hear my Resolution Systems Institute colleagues give two presentations at the April American Bar Association Dispute Resolution section conference in Washington D.C. Oh, and I’m giving one, too.

RSI’s Executive Director Susan Yates will be featured in a panel discussion entitled, “Family Mediation in the Court and Private Contexts: Is it an Interdisciplinary Practice?” The panel will continue the discussion from the fall 2011 joint Marquette University School of Law/Resolution Systems Institute/Association for Family and Conciliation Courts’ conference on the future of court ADR and cross-pollination possibilities between ADR case types.  This session will explore the interdisciplinary beginnings and current trends of family mediation in the courts and in private practice, especially the increasing dominance of lawyers in the private mediation arena. Ms. Yates will also moderate a panel about Foreclosure Mediation 2.0 during the Court ADR Symposium. This panel will feature leaders from five court or quasi-court foreclosure mediation programs discussing how evaluations and challenges to their programs have provoked changes in process and practice.

RSI’s Director of Research Jennifer Shack, alongside partner organizations JAMS and the ABA, will present her ongoing work on the model court forms for civil court ADR programs. This innovative project involves court ADR professionals from across the country providing input on the ideal forms for tracking court ADR program data. RSI has been a longtime advocate of programs regularly monitoring and evaluating their operations. Now, programs will have an easy, accessible, adaptable way to track essential data. Then, they can request RSI’s assistance to interpret it and make program improvements accordingly.

Along with colleagues from the University of Illinois Law School, the Self-Represented Litigation Network, and the Georgia court system, I will present on how courts can provide greater access to mediation services for self-represented litigants. This builds on the work of the Statewide Mediation Access Project, which sprung from RSI’s 2007 study entitled Accessing Justice through Mediation: Pathways for Poor and Low-Income Litigants.

Join us in D.C. in April for four exciting sessions featuring RSI’s court ADR experts.

Without commenting on whether this is a good or a not-so-good move, I wanted to highlight some of the design and evaluation elements that other mediation programs, including but not limited to foreclosure programs, might want to consider from Florida’s experience.

1. Gather all stakeholders to develop the program’s goals, design a process that will meet those goals, and review regularly the outcomes against the goals. A few months ago, a working group that received input from borrower and servicer representatives, as well as mediators, judicial employees, and government officials, analyzed challenges within and proposed changes to the program in a report to the Florida Supreme Court. The group was able to focus on the goals of the program and analyze them against the expense, the process, the caseload, and the outcomes of the program. They also were able to hear from other stakeholders who wanted to keep, but change, the program or terminate it. Such a working group is helpful at all stages of the development, implementation, and evaluation process, so that a program has a continuous feedback loop of information about what works and what doesn’t.
2. Consider whether an opt-out program is the most efficient and effective use of resources, especially in a high-volume case type. Consumer advocates have called for foreclosure mediation programs to be mandatory for all borrowers, unless a borrower opts out. The theory is that the more people get into mediation, the greater the number of people who get to keep their homes. The mandatory nature of Florida’s program meant that over 73,000 borrowers needed to be scheduled for mediation, notified of the mediation, and sent through the process until completion. With such a large caseload, it would be difficult for any program to contact every borrower, let alone mediate every case to completion. As Florida’s statistics demonstrated, less than half of borrowers were contacted and fewer appeared at mediation. Of those who completed mediation, 25% reached agreement. In jurisdictions with smaller caseloads, like Philadelphia (about 9,000 cases last year), they may have the capacity for a mandatory program. So, before a program decides that every case should go through mediation, the program must look at its capacity to manage such a mandate. If the capacity isn’t there, the program might consider screening tools that would help determine what cases are most appropriate for mediation.
3. Develop robust outreach to educate people about their options. No matter how well-designed a mediation program may be, if few people know about it, it won’t be seen as a success. A program should consider, too, how potential participants receive information about the program. For instance, a borrower may no longer be opening his mail, because he receives so many paper notices from the lender that he does not have much hope of what the mail contains. So, even if a notice of scheduled mediation offers some hope, he may never read it. But, if a city worker from the borrower’s neighborhood comes to his door offering free assistance through a mediation program, he may respond affirmatively. Along with the method of outreach, programs should examine who shares the information. Borrowers may be hesitant to participate in yet another program their lender offers, but if a neutral mediation center or a court calls them to offer free mediation services, they may be more interested.

Cases already referred to the Florida program as of December 19, 2011, will be scheduled for mediation. After that, local judges can exercise discretion to determine how to manage the foreclosure cases in their jurisdictions.