Increasing Court Involvement in the Alternative Dispute Resolution Process
By Jeffrey A. Carr
In the early stages of alternative dispute resolution,
most courts recognized and allowed for outside ADR, typically
mediation. This occurred primarily in the area of domestic
relations. This branched out into business mediation
in some areas, but in most cases, these resolution attempts
were arranged and managed outside the court process.
Arbitration was also available, most often through arbitrators
affiliated with the American Arbitration Association.
Local better business bureaus offered then and still
offer arbitration that involves consumer-business disputes.
Beginning in 2003, ADR began to become more a facet
of litigation, managed and even sponsored by courts.
Much of this began through efforts in Florida and Maryland.
Florida introduced legislation that required mediation
for most local disputes prior to litigation. Maryland
began advertising mediation and ADR in general to the
public as a means of resolving disputes prior to the
filing of claims in court. California and Illinois were
close behind.
It was about this time that ADR training was taking
off across the United States. Attorneys and social laypersons
were being trained to provide mediation services in schools,
hospitals, nursing homes, and the workplace. It seemed
that the primary focus of mediators during this phase
was training other mediators. In fact, there was considerable
discussion at these training sessions as to whether there
would be enough work for all of the mediators being trained.
Fortunately, the trend has been and is continuing to
be a significant increase in the ADR process throughout
the civil court system. This seems to take one of two
main tracks:
1. Mediation being offered directly by the courts, utilizing
mediators employed by the courts themselves. In my
case, the first mediations that I performed were for
the Small Claims Division of the Akron Municipal Court,
in Akron, Ohio, mediating small claims cases on Saturday
mornings as a mandatory part of the process for the
litigants. We were able to mediate a significant percentage
of the cases, providing a satisfactory result for the
litigants and an efficient outlet for the court. This
has blossomed into a successful mediation program being
offered in all Summit County Common Pleas cases on
an optional basis for civil cases. As an attorney,
I have participated in a number of these mediations
and now discuss ADR at the time of initial client representation
as a valid and positive method to resolve the case
in an efficient time and cost basis. In addition, many
courts are utilizing settlement conferences that are
part mediation, part arbitration prior to final pretrial
hearings in an attempt to resolve issues. If these
conferences are not successful, the primary issues
and differences are clarified for all parties, including
the court, prior to the trial phase of the litigation.
The mediation phases of litigation also seem to persuade
the attorneys to be more cooperative throughout the
process, as well.
2. Arbitration is also becoming a growing trend throughout
the court system. Retired judges are offering their
services to act as arbitrators, inside and outside
the traditional court system. With our clients, we
discuss mediation, arbitration, and litigation as the
three possible steps in any lawsuit. Most arbitrations
are still being held outside the courthouse by former
judges or experienced attorneys; however, many judges
in various jurisdictions are offering bench trials
that are becoming more like arbitrations and less like
litigation.
These increasing trends toward ADR as a primary and
no longer just an “alternate” means of resolution
are altering the litigation process also. In addition
to discussing ADR with our clients at the time of representation,
we utilize the upcoming mediation as one of the primary
functions of our trial strategy. I prefer to complete
all or most of the depositions prior to any ADR sessions,
including mediation. I am finding that most trial attorneys
that have experience with these processes are also focused
on completing discovery sooner so that they are better
prepared to mediate when the time comes.
In addition, firms and attorneys that were somewhat
opposed to ADR just a few years ago are now open to mediation
and arbitration as a way to resolve the dispute or at
least narrow the issues prior to the negotiation and
settlement phase that typically occurs on the eve of
trial. These preliminary attempts at ADR, even if unsuccessful,
give all parties valuable information that seems to provide
stipulation of the agreed facts and clarification of
the strong and weak positions of the parties, enabling
the attorneys to work diligently on the remaining differences
prior to trial rather than begin the negotiation phase
with one week to go.
The courts have also shifted their approach to these
disputes, assuming at the first scheduling conference
that the attorneys have begun discussions regarding the
ultimate resolution of the case. This is apparent in
discussions with the judges’ staff attorneys as
well as the magistrates and judges themselves. This trend
toward increasing ADR is continuing and growing, and
needs to be a part of every trial attorney’s arsenal
and strategy to securing the best possible outcome for
the client.
Jeffrey A. Carr is a solo practitioner in Akron, Ohio, is licensed in OH and PA, and concentrates on construction and real estate law, primarily as a trial attorney. In addition, Jeff is certified as a mediator and divorce mediator in the State of Ohio. He also serves as a mediator for FINRA, an organization that helps settle disputes in the securities and financial services area. He has served as an arbitrator for the Better Business Bureau and a mediator for the Akron Municipal Court. He currently teaches business law as an adjunct professor at the University of Akron.
© Copyright 2009, American
Bar Association.
