Resources / Study / Innovation for Court ADR

Just Court ADR

The blog of Resolution Systems Institute

Archive for the ‘Court Mediation Program’ Category

Evaluation of ADR in Michigan

Jennifer Shack, July 2nd, 2018

In 2011, an evaluation of Michigan’s court-connected case evaluation and mediation programs found that both case evaluation and mediation increased the probability of settlement, but that case evaluation significantly increased time to disposition. A newly published follow-up study, The Use of Case Evaluation and Mediation to Resolve Civil Cases in Michigan Circuit Courts: Follow-up Study Final Report (Courtland Consulting, May 2018), came to the same conclusion.

Case evaluation, in which a panel of expert neutrals makes a recommendation as to what the case should settle for, is mandatory for tort and medical malpractice cases. Mediation in most jurisdictions is voluntary, and can be used in conjunction with case evaluation. The study looked at a random sample of 358 cases (221 torts cases, 137 other civil cases) from three jurisdictions to determine what ADR process was used, the means by which the cases were resolved, and the time to disposition for each case.

The study found that for tort cases, there was no statistically significant difference in the form of disposition among the different options: no ADR, case evaluation only, mediation only, or both case evaluation and mediation, with a range of 71% (no ADR) to 92% (mediation) ending in a settlement or consent judgment. For other civil cases, both case evaluation and mediation (and both together) had higher rates of settlement than those cases that did not use ADR (47% for no ADR, 79% for case evaluation and 80% for mediation). The difference appears to be in the higher rate of dismissal/default judgment for cases in which no ADR process was used (49% v 21% for case evaluation and 13% for mediation). For both torts cases and other civil cases, time to disposition was considerably longer when case evaluation was used than when either mediation or no ADR was used.

When compared to mediation, case evaluation started later in the case and averaged longer to disposition from the point at which the ADR process ended. The delay could be attributed to case evaluation being rescheduled more often, although it wasn’t clear whether it was rescheduled without having been held or whether more than one session was needed.

While the findings regarding case resolution and time to disposition were similar to the 2011 findings, the lawyers and judges who responded to a survey about their perspectives on case evaluation indicated they were less satisfied with this process. Judges in particular were less confident in the effectiveness of case evaluation, with the percentage of judges who believed it was effective dropping from 69% to 53%. Attorneys had a much smaller dip, from 49% to 43%. Similar drops were seen in the percentages who would use case evaluation if it wasn’t mandatory. The percentage of judges who said they would use it dropped significantly, from 83% to 66%, while the already small percentage of attorneys who would in 2011 (36%) dropped to 29%.  The attorneys’ opinion of case evaluation was reflected in their comments about the panels. They complained that the panels lacked experience, were unprepared, were biased and did not address the merits of the case.

On the other hand, the judges’ and attorneys’ already high opinion of mediation remained steady. In 2011, 89% of the judges said mediation was an effective way to resolve disputes, compared to 93% in 2018. Attorneys were also much more likely to say mediation was effective than to say that case evaluation was, with 77% and 78% saying so in 2011 and 2018, respectively. While they had a high opinion of mediation, only 53% of attorneys said the mediators were highly skilled.

The comparison results were limited by a couple of factors. The cases that did not go through ADR processes were not similar to those that did. They were commercial cases, which are less complex, involve lower value claims, and require less discovery than other civil cases. Further, mediation was voluntary in most cases. This means the sample of mediation could be skewed by self-selection, in that the parties who decide to mediate could have been more motivated to settle and/or to settle early.

 

Nevada Foreclosure Mediation Program to Use HLP Online Portal to Administer Program

Nicole Wilmet, June 29th, 2018

In August, we reported that the Nevada legislature revived the state’s foreclosure mediation program by passing Senate Bill 490. One of the most notable changes Senate Bill 490 brought to the program included the transfer of program management duties from the Nevada Supreme Court to the Nevada District Courts and Home Means Nevada, Inc., a state affiliated non-profit that was created to address challenges and needs of distressed homeowners. As Home Means Nevada describes, under this new structure when an individual receives notice of default, they will then petition the District Court to participate in mediation. The District Court will then assign a mediator to mediate the case and Home Means Nevada will work closely with the courts and mediators to ensure a successful program.

This month, Home Means Nevada announced that it has selected Hope LoanPort’s® (HLP) web-based platform as the designated channel to administer the program. Founded in 2009, HLP was initially created to help solve the foreclosure crisis by developing a web portal where non-profit credit counseling agencies, attorneys and homeowners could apply for a loan modification or other solution. Today, the HLP platform has become a one-stop shop for homeowners nationwide to send documents to their mortgage companies. As Business Wire reports, the HLP portal will be the designated channel through which Home Means Nevada will administer the foreclosure program. As United Trustees Association reports, the HLP portal will streamline the document sharing process and will afford parties the opportunity to see and receive updates for their case in real time.

The HLP platform will be implemented in several stages with the first phase scheduled to launch July 1, 2018. The HLP Nevada Foreclosure Mediation page can be accessed here and contains updates, information on registering, and access to HLP platform training for counselors, servicers, and attorneys.

Virginia Appellate Courts to Launch Pilot Mediation Program

Nicole Wilmet, June 28th, 2018

This month, the Supreme Court of Virginia and the Court of Appeals of Virginia released a press release announcing the launch of a two-year pilot appellate court mediation program that will begin on January 1, 2019. The mediation program will only be available in select civil cases where both parties are represented by legal counsel. Additionally, in the Court of Appeals, mediation will be available for equitable distribution and/or related attorneys fee disputes. Mediation will also be available for Supreme Court cases where a petition for appeal has been granted. In both courts, the Clerk of each court will notify counsel that, if both parties agree to mediate, there will be an automatic stay of proceedings for 30 days to allow for mediations to occur.

The genesis behind the pilot program stems from recommendations made by the Special Committee to Study Appellate Mediation in Virginia. In 2017, the Special Committee was created at the request of Chief Justice Donald W. Lemons, the Joint Alternative Dispute Resolution Committee of the Virginia State Bar (“VSB”), and the Virginia Bar Association (“VBA”). Members of the Special Committee included representatives from both appellate courts, appellate litigation representatives from the VSB and the VBA, leaders from the Joint ADR Committee and the Dispute Resolution Services Manager from the Office of the Executive Secretary of the Supreme Court of Virginia.

In addition to recommending the creation of the pilot program, the Special Committee also recommended a new level of certification for appellate mediators during the pilot projects. The request for a new level of certification will be presented to the judicial council for adoption later this year. The full report from the Special Committee can be found here.