Court Connected Mediation

By Thomas J. Moyer

Three Sets: Goals and Barriers, Specific Court Programs by Type of Court, Use by Corporations

General Goal: to establish, by example, courts that improve the quality of disputing in society.

This will occur as a result of

1. encouraging civility in negotiation;
2. establishing problem solving processes that are a part of managed court processes
3. establish these problem solving process to allow, ownership of disputes by parties and quality resolutions and access to these processes through the courts.

This goal requires that a change in the mindset and legal culture to accept that dispute resolution should and will be an integral part of case management processes at all levels. It also requires lawyers approach disputing from a problem solving rather than adversarial mode.

1. Improve outcome for litigants--decisions they make that are more creative will serve interests of parties, ensure compliance; ability to be heard is critical.

Barriers: failure to train well in mediation skills that encourage party participation; allowing too little time for mediation or assuming that 1.5 hours per case is adequate; failure to engage in planning and program design that consider this goal at the outset and as the umbrella under which other goals can be achieved.

Examples: In municipal court mediation programs we started with the idea that these processes are services to citizens, primarily pre-filing and at no cost.

Found in six circuit rider sites that mediation does not reduce caseloads--it may save clerical and docket time, but the primary benefit is that citizens like it. In our successful appellate programs many cases require significant follow up and additional conferences to reach settlement. Even at a case load of 200 cases a year the mediators save the cost of a judge and they settle some really difficult cases that would have been a burden on the court. If we upped their caseload to 500 cases a year we would lose that quality.

2. Save litigants, and possibly courts, time and money.

Barriers: Mediation too late in the life cycle of the case.

Mediation program designs that continue judicial supervision rather than decrease judicial involvement in order to get cases into mediation early.

Examples: In our common pleas court pilot sites those courts where judges are continuing to refer cases to mediation are seeing high rates of settlement on those cases, but they are cases that are essentially ready for trial and therefore there is no way to save litigants any money.

Use of volunteer, retired judge panels, out of house contract providers and user fee systems. We believe that our research will show that in house mediation programs do have a better chance in some kinds of cases of saving money for all concerned.

Example: Bob Rack is convinced that in the federal appellate system his staff mediators make a greater difference than any of the retired judge or volunteer panel appellate court programs. We don't have data to support this in our appellate or general division programs, but the use of in house mediators in the divorce and juvenile courts is clearly cost effective and easier to monitor for quality.

In one court where individuals are ordered for mediation assessment and then have to pay a divorce mediator and are not required to attend the first mediation session, 70% of couples eligible for mediation don't participate.

Where court mediators are available, closer to 50% of couples are participating in mediation in divorce cases and in the Lucas County Juvenile Court more than 70% of couples needing parenting agreements successfully negotiate them in a mediation that is scheduled immediately after the motion is filed.

3. Change the legal and public culture to reflect problem solving approaches rather than adversarial approaches in those cases where appropriate. (i.e. most cases deserve at least a shot at mediation)

Barriers: Judges and Attorneys are comfortable with the culture and tradition as it has existed for 200 years or more and are resistant to change.

Changing culture is a large and long term effort and programs that start and end quickly have little hope of institutionalizing mediation.

Examples: Juvenile courts that adopted mediation programs under early JJDP grants or other grants and didn't provide for continuation are back at square one when they try to start up again. Our experience is that mediation program at any level can show success after 3 years, sometimes as soon as 18 months.

Monitoring for Quality and evaluating to make changes if program is not working is a big effort for local courts; in Ohio this effort has required assistance from the Supreme Court and is slow going, but showing returns that indicate our belief that this is an important part of achieving goals and worth the effort.

Municipal and County Courts: More than 25 courts offering pre-filing, post filing and day of trial mediation in small claims, administrative matters (housing, building code, tax cases), moving into general division cases.

Several well established pre-filing criminal case mediation. a few new ones; also moving into area of victim offender mediation.

Experience that these are highly valued programs (citizens report satisfaction at 90%+) and cases do not come back for filing or re-litigation. Settlement rates from 50- 90%.

Common Pleas Court: Current programs involve both in-house and referred out mediations. Pilot project (Clinton Stark and Montgomery Counties) with in house mediators is experiencing high rates of settlement 64 of first 100 cases, and we are evaluating ability to mediate earlier and yield less days in system.

Settlement Days and Weeks continue to be good option for more than 15 courts averaging 40-60% settlements from one or more events per year.

Domestic Relations Courts: Continuing with assessment and referral to outside mediators as allowed by 1989 statute (20-25 programs).

New efforts include use of in-house mediators.

Also experimenting with hybrid settlement conference model in post decree cases. Magistrate (fully trained mediator) and mediator (neither will have any further contact with case) work together to help couples resolve post decree motions for change of custody and contempt.

This appears to be particularly successful from several perspectives: reports of cases resolving that would have taken 2-4 days at hearing:

Juvenile Courts: Court with greatest number of new programs in last 3 years. Wide variety of cases steps in case processing that are amenable to mediation pre-filing mediation of status offenses, particularly truancy. Newest pilot is for early intervention with mediator from court going to schools to mediation with parents and staff regarding early absences (5 days unexcused absence in grades K-6) attendance has improved after mediation in both schools.

pre and post filing mediation of delinquency cases, including mediation after pre- trial and before adjudication;

pre and post adjudication victim offender mediation;

mediation of disputes that arise during probation. Mediation of parenting agreements in one court this program alone reduced motions on docket by 78%. Mediation of abuse, dependency and neglect cases at a variety of times after filing.

Current pilots: 3 courts have been mediating these cases since January 1997 and are showing high resolution rates with high levels of satisfaction an compliance.

Appellate courts: 4 courts with full or part-time staff mediators, settling 40+% of cases selected; saving cost of judge in urban courts (Cleveland, Columbus, Cincinnati); mediating diverse group of cases in Toledo including family cases on appeal.

Supreme Court plan is to implement for some Tax cases, some original jurisdiction cases.

Nancy Hardin Rogers, National Science Foundation Grant study looked at six national corporations characterized as no mediation use; low mediation use and high mediation use found the following:

• Businesses that created incentives for using alternative processes in fact did use them more.
• Managers in high use corporations felt that they had more control of problem compared to feelings among low use managers that they lost control when cases "went to litigation".
• Lawyers (in house counsel) began using better problem solving and negotiation practices even in those cases that did not go to alternative processes.
• Corporations were able to document reduced legal fees.