Dispute Resolution

By Thomas J. Moyer

Review Club, February 5 1998

According to a computer search by The New York Times, the phrase "as we approach the millennium" is now one of the most commonly used in news stories.

We live in a time when all of us are looking to the future. It seems as though everyone is ready to make predictions about how society will change in the next millennium. Of course, no one knows for sure what the future holds. We hope for the best.

At a recent meeting of the Technology Task Force of the Courts Futures Commission, the discussion turned to the possibilities offered by biomedical and genetic research.

One of the members reported reading an article about the prospect of identifying a so-called "crime gene" and that if such a genetic marker exists, it may someday be feasible to drastically reduce crime. A judge, sitting at the opposite end of the table, replied: "That would put us out of business."

The judge's quip drew a quick laugh from other task force members, who then turned their attention to more familiar topics of electronic filing, paperiess courtrooms and how to assist judges to adopt future advances in technology.

The scene is a snapshot of one moment of one task force session. But it helps illustrate the point that the Futures Commission members are exploring many different ideas as they consider issues and options that will face the courts in the 21st century.

The Supreme Court has about 15 active boards, commissions and committees working in distinct areas. But the Futures Commission is unique in both its scope and depth of responsibility.

The Commission, which began its work in June, has been busy holding hearings and analyzing data that will be used to draft recommendations aimed at charting a course for Ohio's courts for the next century. The purpose is to look 15-20 years into the future -- Ask -- Expectations, Resources.

The 52-member panel consists of 27 nonaftorneys and 25 attorneys, 1 0 of whom are judges. This is an ideal balance. The nonattorneys provide the professional and individual perspectives of those who are served by the system. The attorneys and judges lend their insights and necessary expertise.

Each member sits on one of five task forces responsible for reviewing and developing proposals on specific issues that affect the court system. The five task forces are: Access & Quality [less open, no violence, national movement], Organization & Structure, Public Education & Awareness [common law court -- Freemen -- Still active], Rules & Procedure and Technology. The separate panels have been meeting regularly since the summer.

All key issues are on the table: Court structure and funding, jury reform, judicial qualifications and selection.

For example, consider court structure. Surely if we were to design a new court system it would not look like what is in place today. The Commission will review the number of courts and related agencies, and answer difficult questions relating to cost and efficiency.

At a recent meeting, Commissioners were asked to identify the attributes, characteristics or qualities Ohio's judicial system should have in the Year 2025. Following considerable discussion--sometimes spirited--they began to arrive at a consensus of characteristics that would ensure that courts are efficient, responsive and just.

Here's a sampling of their picture of how courts will look and operate in the next century...

In the early stages of its work the Commission has found that one topic cuts across the work of virtually all 5 task forces. It is a subject many of you have heard about and perhaps actually participated in. And that is dispute resolution, sometimes called alternative dispute resolution, or just ADR.

ADR has been part of Ohio's legal culture for more than a decade. It shows steady, continued growth.

What we see unfolding in Ohio is part of a national trend.

Cornell University in July released the findings of its study of the use of dispute resolution among the 1,000 largest U.S. corporations. 88% report using nonbinding mediation, while 79% have used binding arbitration. More than 84% say they are likely or very likely to use mediation in the future. While 69% say that about arbitration. Corporate attorneys apparently prefer nonbinding, third-party techniques over arbitration.

Whether corporations favor the use of dispute resolution depends on the type of conflict it faces.

The Cornell survey found widespread use of mediation and arbitration in commercial and employment disputes. While 60% have used mediation in personal injury cases, it is used less frequently in cases involving corporate finance or financial reorganization. In this age of bottom lines it is not surprising that for many corporate executives the use of ADR is a strategy they hope will reduce the costs of legal disputes. Nearly 90% of the respondents report that they view mediation as a cost-saving measure for the corporation.

The findings of this and other credible studies show that dispute resolution is widespread and likely to grow in the foreseeable future.

The Supreme Court has launched the first phase of our effort to institutionalize dispute resolution in courts across Ohio. The project calls for establishing mediation 3 programs in different courts of jurisdiction in 12 counties. Given the success of an earlier pilot program in three counties, we anticipate the program will continue to grow.

Dispute resolution extends far beyond Ohio's courthouses. The Commission on Dispute Resolution and Conflict Management, established 8 years ago, has helped launch a number of the programs. The positive results of their efforts can be seen in state and local government, communities and schools.

One of the more successful programs is in the Bureau of Workers' Compensation. The agency's embrace of ADR began slowly 5 years ago when it first participated in Settlement Week. Legal counsel saw that more than 60% of the cases were settled through mediation. Not a bad start.

Two years later, the agency initiated its own settlement days, operating every other month. The settlement rate increased to 70%.

Workers' Compensation is now conducting 2 settlement days every month across the state in which about 70 cases are settled per month. The Board of Tax Appeals recently reported that its voluntary program saved approximately $190,000 last year. This represents almost 1 0 percent of its total budget.

In addition, the Government Assistance Program, commonly referred to as GAP, plays an important role in assisting government officials to settle disputes differences. With the help of mediation, we have seen significant breakthroughs in resolving what sometimes have become heated and potentially expensive disputes between government agencies.

And one of our best hopes for the future is the progress we have made with peer mediation in our schools. Ohio has received national recognition for establishing school programs that teach & involve our young people to find peaceful settlements to their problems. Peer mediation programs are now in place in more than 900 of our primary and secondary schools. That represents a 50% increase in the last year.

Just as we see in our boardrooms, ADR works in the classrooms as it calls on students to take an active part in the process of settling differences. It requires students to assume responsibility for their disputes. They see that it works because they are part of the process of resolving the dispute.

George Santayana once noted that the difficulty in education is to get experience out of ideas. Peer mediation answers that challenge by providing students with ideas from experience.

The true value of dispute resolution extends beyond our courtrooms, boardrooms and school rooms. It helps to remind our society of the concept of civility. By its very nature, it calls on people to talk and listen to one another, and then resolve their differences in a civilized manner. It is convincing evidence that there is an alternative to confrontation.

Mark Twain once admonished a Sunday school class to always do right. "This will gratify some people and astonish the rest."

And so as we move into the future we will continue to pursue the possibilities offered by dispute resolution. It is our best weapon, our best hope for civility. Thank you.