Court ADR Systems: The Road Ahead


by Gregory Firestone

This article originally appeared in ACResolution, Volume 6, Issue 1. Reproduced with permission from the Association for Conflict Resolution.

February 2007

Gregory Firestone Approximately 30 years ago, Harvard Law Professor Frank Sander delivered an address at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, (commonly referred to as the Pound Conference) where he raised the idea of a multi- door courthouse. In it he advocated for “…a flexible and diverse panoply of dispute resolution processes, with particular types of cases being assigned to differing processes (or combination of processes), according to some criteria...” (West Law 70 F.R.D 79) Some leaders in the field, including author Carrie Menkel-Meadow, have associated his paper with the beginning of the modern alternative dispute resolution movement. (Ohio State Journal on Dispute Resolution, 2000, vol. 16)

Sanders further elaborated in 1976 that “…one might envision that by the year 2000 not simply a courthouse but a Dispute Resolution Center, where the grievant would first be channeled through a screening clerk who would then direct him to the process (or sequence of processes) most appropriate for his case.” While many state courts have opened offices of dispute resolution to oversee mediation programs in their states, many suggest that we have still not achieved Professor Sander’s vision of a comprehensive set of ADR options readily available to disputants. For example, Wayne Brazil has written that courts “…have fallen far short of making real Professor Sander’s vision of the multi-door courthouse” and notes that courts typically don’t offer a variety of ADR options, but more typically offer just one form of ADR—mediation.

Twenty-six years after his initial prediction regarding the expansion of ADR, Professor Sander wrote: “The challenge now is to weave these disparate strands into a coherent fabric so that the normal dispute route leads first to an exploration of appropriate ADR options, with litigation used only as a last resort.” (Ohio State Journal on Dispute Resolution, 2002, vol. 17)

How does a court seek to create a more comprehensive process that can incorporate the various “disparate strands” of dispute resolution? As Chair of the Florida Supreme Court ADR Rules and Policy Committee Subcommittee on ADR Systems, I am pleased to report that in Florida we are exploring ways to accomplish the broad goals espoused by Professor Sander even though the challenge that he identifies is vastly more difficult to achieve than it would first appear.

In order to begin to develop a comprehensive dispute resolution system, courts must first identify what modes of ADR appropriately fall within the range of services that a court should either provide or encourage parties to consider. Most popular, of course, is mediation, which is almost universally available in most parts of the United States for at least some types of disputes. But mediation is only one form of dispute resolution and courts should consider a much wider range of ADR. For example, in Florida, we have initially identified the following forms of ADR as worthy of more study as court sponsored forms of ADR:

  • Arbitration
  • Community Conferencing
  • Early Neutral Evaluation
  • Magistrates and Hearing Officers
  • Mediation
  • Mediation-Arbitration
  • Negotiation
  • Neutral Fact Finding
  • Ombudsperson
  • Parenting Coordination
  • Summary Jury Trial
  • Teen Court
  • Voluntary Trial Resolution

Once a list of resolution options is identified, courts then need to define the methods and address such issues as 1) cost and availability of services, 2) training, ethical standards and guidelines, 3) confidentiality and admissibility of communications, and 4) appropriateness of specific ADR options for different types of disputes.

Bigger issues also remain including determining who should select the particular ADR option. While Professor Sander seems to suggest that this role be relegated to a screening clerk, perhaps the parties themselves should select their preferred ADR method with the assistance of a dispute resolution coordinator. Of course, the courts would also need a default path for resolution when the parties are unwilling to agree to a method of resolution. While comprehensive dispute resolution systems must be designed to protect a disputant’s right to access to courts and the judicial system in general, court-ordered mediation would still be possible when parties cannot agree upon a particular method of dispute resolution or when another ADR option fails. However, absent the consent of the parties, courts should not order parties into dispute resolution methods that 1) compromise party self-determination or anyone’s safety or 2) create an undue financial burden on a party.

Another issue involves the importance of recognizing indigenous methods of ADR that may be unique to a particular culture. Many Native American groups, for example, have specialized methods of dispute resolution that courts would be well-advised to consider where appropriate. Similarly, as the U.S. becomes increasingly diverse, courts should recognize the benefits of encouraging parties to use ADR methods that may be highly developed and appropriate for disputants of a given culture.

Courts would also be wise to build upon the methods and techniques used in private businesses and freestanding dispute resolution systems. Below are some of the lessons that Janet Weinstein and I have proposed that courts can learn from such systems (Family Court Review, 2004, Vol. 42). Our recommendations draw from the work of Ury, Brett, and Goldberg (Getting Disputes Resolved, Jossey-Bass Publishers, 1993), Constantino and Merchant (Designing Conflict Management Systems, Jossey-Bass Publishers, 1996), and Rowe (in Frontiers in Dispute Resolution in Labor Relations and Human Resources, Michigan State University Press, 1997).

1. Offer many dispute resolution options.
2. Emphasize interest-based approaches.
3. Focus on problem-solving.
4. Encourage affordable rights-based solutions.
5. Provide the assistance of a dispute resolution coordinator.
6. Encourage parties to “loop back” to consider new options if one method fails.
7. Establish guidelines and screening processes.
8. Provide other forms of support such as educational programs and counseling
9. Focus on future-oriented strategies.
10. Encourage professional collaboration.
11. Empower parties to find solutions for themselves.
12. Respect the privacy concerns of parties, where possible.
13. Think long-term and focus on prevention.
14. Make the process understandable.
15. Maintain a program of ongoing evaluation
.

In my work assisting private organizations and governmental programs to develop dispute resolution programs, I have come to see that the benefits of creating a systems approach often exceed the expectations of the planners. Providing parties with multiple dispute resolution options and encouraging them to select the process that most suits their case appears to lead to greater party satisfaction and improves the chances for resolution. Educating parties about the options and providing opportunities for parties to “loop back” to new ADR methods when one method fails also increases the chances that ADR options will be successful prior to litigation.

Litigation has become very expensive and often takes too long to adequately meet the needs of many disputants. A systems view allows one to envision streamlined, rights-based options where parties can make informed decisions to choose less expensive methods to resolve their disputes. For example, in a divorce, perhaps parties should have the option to have a specially trained magistrate decide the amount of child support payment in a more streamlined and less expensive process. Without the formality of a court proceeding, the parties could meet with the magistrate, show their relevant income statements, answer a few questions, and then be advised of the amount of the monthly child support payment. The process would be more like visiting an accountant who prepares a tax return than appearing before a judge in a trial.

In order to develop such a system, courts should also plan a training program for court employees and an outreach program to the population served by the court. The better parties are able to understand and use appropriate dispute resolution methods, the more likely the system will operate effectively. Such educational programs and outreach could be the responsibility of the dispute resolution coordinator who is in the best position to understand the needs of the parties.

It’s time for courts to shift their thinking beyond alternative dispute resolution to the development of comprehensive dispute resolution systems (CDRS). Litigation should become an option for parties rather than the central intake point for all matters. The point of entry for disputants should be dispute resolution coordinators who may be housed in the courts as well as outside the courthouse in more accessible locations.

Much has been accomplished in the private sector as well as in governmental programs and CDRS in the courts could build upon some of the principles of dispute resolution systems designed and established elsewhere. Court CDRS programs would also be better prepared to address the increasing diversity of disputants entering the court by offering a wider range of ADR options including choices that are better attuned to the unique cultural circumstances of the disputants.

Gregory Firestone, Ph.D. is a mediator, mediation trainer, dispute resolution system consultant and clinical psychologist. Greg also serves as Director of the University of South Florida Conflict Resolution Collaborative, Vice Chair of the Florida Supreme Court ADR Rules and Policy Committee and Chair of the ACR Legislative and Public Policy Committee.



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Biography




Gregory Firestone, Ph.D., serves as director of the University of South Florida Conflict Resolution Collaborative, vice chair of the Florida Supreme Court ADR Rules and Policy Committee and co-chair of the ACR Legislative and Public Policy Committee.


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