RSI spends a lot of time and energy studying the conditions under which court-based alternative dispute resolution (ADR) can best improve access to justice. In recent years, that has often meant using new technologies and/or assessing their impact.
As is often the case with innovations, ADR options that employ new technology are sometimes hailed as the solution to longstanding challenges. For example, online dispute resolution (ODR) is celebrated for its potential to increase access to justice by allowing parties to engage on their own schedules, in their own spaces. Unfortunately, however, technological innovations can also bring challenges and create their own barriers to justice.
RSI’s 2022 annual report asks the question: Does ADR + Tech = Better Access to Justice? Our staff spent much of last year examining that premise. We published two landmark evaluations of court programs that used ODR-specific platforms; completed an in-depth report on the potential for ODR to serve thinly resourced parents, courts and communities; and used video mediation to serve hundreds of clients in northern Illinois. We also evaluated how those programs were operating and how participants viewed them.
Our annual report outlines these efforts and summarizes some of our findings. Not surprisingly, we found both promising signs and causes for concern when it came to technology’s impact on access to justice. We also discovered a lot more questions that need to be answered and problems that need to be addressed.
We hope you will take the time to read the Resolution Systems Institute 2022 Annual Report and review what we have learned so far. The role of technology is, of course, just one of many aspects of court-based ADR that RSI is examining. Please join us as we continue exploring what technology can and can’t solve, as well as other keys to providing cost-effective, timely and fair conflict resolution.
Welcome to RSI’s Board Member Profile series! Each profile will feature a different member of RSI’s talented and dedicated Board of Directors. This month we focus on Board Secretary Mitchell L. Marinello.
Mitchell L. Marinello has been a member of RSI’s Board of Directors since 2013 and has been Board Secretary since 2015. He is a partner at Novack and Macey, where he handles complex commercial cases through litigation, arbitration and mediation. Mitch also serves as a commercial arbitrator for numerous organizations including the American Arbitration Association, the International Center for Dispute Resolution, the International Institute for Conflict Prevention & Resolution (CPR), and others. We asked him to tell us about how alternative dispute resolution fits into his work, what he likes about the RSI Board, and more.
Can you share a little about your law practice and how you use ADR in your practice?
My practice is complex commercial arbitration. It involves contracts, real estate, employment, some intellectual property, and partnership law including break-ups in law firms and other businesses. Over the years, I have gotten a wide variety of cases. It’s fun in that you often learn about types of business or industries that are new to you, you litigate the issues involving those matters and then, when the case is over, you go on to something else. Of course, I also do counseling.
These days, ADR is an integral part of a commercial litigation practice, and I often represent clients in ADR settings. Arbitrations are a forum where trials are much more common than they are in court and you get to the merits of the case much faster. That has advantages for clients and for lawyers who usually find trials to be one of the most enjoyable aspects of litigation. I also serve as a mediator and arbitrator myself. To date, I have served as a mediator in about 20 cases and as an arbitrator in more than 240. As a mediator, I have had good success in settling cases, and my mediation practice has been picking up.
Mediations generally don’t work unless both sides are genuinely interested in them and enough information has been shared so that both sides can calculate the benefits and risks of going to a judgment on the merits. An extremely high percentage of commercial lawsuits eventually settle, so once enough information is on the table, there is a reasonably good chance of settling the case. I recommend mediation in appropriate settings. There are several factors to consider.
What led you to join the RSI Board?
I met (RSI Board member) Hon. Morton Denlow (ret.) years ago through the Chicago Bar Association and knew him from his time on the bench. He also knew other people in my firm very well. And then I had a mediation in front of him that was settled as a result of his efforts. He knew that I was interested in ADR, and some time after that he asked if I would be interested in joining the RSI Board. He gave a positive review of the organization, and I thought it would be interesting to learn about the organization and get to know the other Board members who at that time were mostly retired judges. I was and still am primarily focused on arbitration, while RSI is focused exclusively on mediation, but I thought RSI’s mediation programs would be interesting to learn about.
What’s your favorite thing about being on the RSI Board?
The people who work at RSI are very good at the services they provide. They are intelligent, dedicated and easy to get along with; getting to work with them is one benefit of being on the Board. Another benefit is that the Board members are a varied and interesting group of people.
When/where were you first introduced to alternative dispute resolution?
I started off as an attorney in New York City. We had some clients in the textile business, a client in the steel business, and a client in the paint supply business. They all had arbitration clauses in their agreements, and they ended up filing arbitrations involving breach of contract claims against companies they had supplied products to. The firm let me handle those arbitrations as a young lawyer, and I enjoyed them. I also started to think about how the arbitration process could be improved.
One thing people don’t necessarily know is how much arbitration has changed since the early 1980s. Then, like now, you would get a list of potential arbitrators and each side would get to strike and rank them. Well, I would try to find out information about the panel members, and it was very hard to do. There was no internet, of course, and the information in lawyer listings was pretty minimal, and it all sounded the same. I also discovered that some of the people on the arbitration panels were completely retired and that others had passed away! Also there wasn’t much arbitration in those days. People volunteered to be on the panels, but even if they were senior attorneys, that didn’t mean they had any significant experience as arbitrators.
In the early ’90s, things really started to change. The panels were updated, and a more rigorous process was put in place before you could become an arbitrator. Gradually, that also corresponded with an increasing number of arbitrations and with larger cases. I got really interested in arbitration and applied to be on the AAA panel. I got on the AAA panel in the early ’90s, and I started off getting small cases to arbitrate. And over time it just gradually grew. So now I get some very large and complex cases.
The increasing popularity of arbitration coincides with Supreme Court decisions that have given the Federal Arbitration Act new life and with the crowding of the courts, the high cost of litigation, and the long time it takes in court to get to trial. Arbitration and mediation benefit clients, but they also are in a very major sense relief valves for the court system. And, as RSI has shown, mediation also can help people who cannot afford the high cost of litigation resolve their disputes and get a chance to be heard.
A new statewide mediation program in Michigan – likely the first of its kind in the United States – offers free mediation as an alternative to court intervention in mental health cases involving individuals who qualify for community mental health services. Michigan Behavioral Health Mediation Services realizes part of the longtime vision of State Court Administrator Emeritus Milton Mack, Jr., who recently spoke with RSI about the program.
“Typically a family member feels someone needs help, and the person is refusing help,” Judge Mack, who also chairs the Michigan Governor’s Mental Health Diversion Council, explained. “So they go to the courthouse and ask the court to schedule a hearing on ordering this person to get help. What this process does is it says, OK, before we get to the point of the judge ordering you to receive treatment, we’re going to send you into mediation and see if you can work this out without a court order.”
Oakland Mediation Center (OMC), in Bloomfield Hills, Michigan, developed the mental health mediation program in partnership with the Michigan Community Mediation Association. It kicked off in September 2021 and is funded by a grant from the Michigan Department of Health and Human Services. OMC connects participants with their local community dispute resolution center for mediation. In addition to the subject of the mediation, the petitioner and the (volunteer) mediator, participants may include the subject’s attorney and community mental health providers. Mediators for the program complete advanced behavioral health-specific mediation training, as well as Michigan’s usual state-required mediation training.
Legislation Facilitated Changes
Changes to Michigan law in 2018 helped make mediation an option, said Judge Mack, who first advocated for mental health mediation in 2004, as a member of the Governor’s Mental Health Commission. Under the prior statute, a judge couldn’t order a person to outpatient treatment until they had been involuntarily hospitalized twice or incarcerated twice, by which point their illness had progressed significantly. Additionally, a trial had to be scheduled within seven days of a petition being filed, which left little time to schedule mediation. Under the new law, a family member can petition the court to order an individual to undergo outpatient treatment, and a hearing must be scheduled within 28 days – a much more realistic timeline for scheduling mediation. Furthermore, Judge Mack said, this earlier intervention makes it more likely that people get treatment in community, and do so while able to function at a higher level than if treatment waited.
“Getting in early is your greatest opportunity,” said Judge Mack. “When you’re in a psychotic state, you’re steadily going downhill … The longer you wait, the harder it is to get back to baseline.”
So far, the program has mediated five mental health cases, with three reaching resolution and a fourth reaching partial resolution. Petitioners cannot request mediation; only the subject of the mediation or their attorney may do so.
New Ground for Courts
Buy-in has been a challenge, Judge Mack said, because the concept of mental health mediation is very unfamiliar territory for courts. As one way to overcome this, he will be leading trainings for attorneys on the program in mid-August, starting in Wayne County, Michigan, where he was previously a probate judge. A longtime proponent of mediation for cases of all types, he said attorneys will be instructed to request mediation in eligible mental health cases as a rule, noting: “When I instruct the lawyers next week, I am going to explain to them: One of your duties is, when you get this assignment, you immediately consider requesting mediation; that is the expectation of the court.”
While acknowledging that for other states to replicate this program they might need to enact legislation, Judge Mack’s advice to courts in the meantime is that they look for situations where the timeframe is not an impediment to mediation. Additionally, he suggested, “I would say watch us here in Michigan prove the concept. Our process of having a system of early intervention and keeping people out of the hospital I think has got promise.”
Adaptation and Innovation. Those are the themes of the new Resolution Systems Institute annual report. Like many organizations, RSI has opted to sum up 2020 and 2021 together – a reflection of the degree to which we have been consumed by the urgent demands of these extraordinary times.
As we lift our heads from our work for a moment, we’re proud to review all that our efforts have helped accomplish over the past couple years.
From designing and operating three new eviction mediation programs in Illinois, to convening experts from across the US to explore the potential of online dispute resolution for family court, to curating resources for a special topic on eviction mediation, to providing evaluation of both our own and others’ alternative dispute resolution programs, RSI has been busy adapting and innovating in an effort to mitigate some of the devastation of the COVID-19 pandemic.
This work is improving outcomes. To take just one local example, our Kane County, Illinois, Eviction Mediation Program served over 100 households in the final few months of 2021, after Illinois ended its eviction moratorium on October 3. Mediators handled 66 cases, providing a vital forum for parties to hear and be heard, and leading to 45 agreements. Afterward, 89% of parties responding to surveys expressed satisfaction with the mediation experience. In addition, RSI helped navigate hundreds of community members to housing counseling, rental assistance and legal aid services.
Of course, everything RSI has accomplished in our 27 years of operation has been made possible by our dedicated program partners, generous funders, and everyone who joins us in working to increase access to justice through court alternative dispute resolution.
We invite you to review the Resolution Systems Institute 2020-2021 Annual Report and learn more about what we’ve accomplished together. We hope you will continue to support our work and be a part of finding creative solutions that improve outcomes for disputing parties, while reducing the strain on our nation’s court systems.