Court-Connected ADR

By: Fred Jankilevich – Attorney At Law

(A.k.A. Federico DaFranca) August – 2018

Concept

Alternative Dispute Resolution is the use of methods such as mediation and arbitration to resolve a dispute instead of litigation (Online: Oxford: 2018). In proper legal-technical terms, ADR is a process adopted to end a problem before taking legal action (Online: Garner: 2018). Therefore, the purpose of the present article is to evaluate such methods and processes in order to provide the reader with a review of their efficiency.

Governing Law

Rule 5 of the Supreme Judicial Court states that the clerk shall “make information about court-connected dispute resolution services available to attorneys and unrepresented parties.” (G.L. c. 209A S.3: 2018). Furthermore, as per the above-cited instrument, no court may compel parties to mediate any aspect of a proceeding. In turn, Attorneys have the duty to provide their clients with information about court-connected dispute resolution services. Rule 1:18 of the Supreme Judicial Court is in accordance with Rule 5 of the Uniform Rules on Dispute Resolution.

Court-Connected ADR

The Term “Court-Connected Dispute Resolution” is thus defined: “Dispute resolution procedures, such as arbitration, mediation, and negotiation, all of which have a common aim of eliminating the need for a traditional trial.” The pertinent doctrine regarding procedural and/or empirical application of ADR resolution methods reflect as a result that: “The use of appropriate dispute resolution methods at an earlier stage in the process may substantially reduce the cost, time and complexity of the litigation while promoting greater satisfaction on the part of both litigants and attorneys.”(Leavitt J.: 2018)

Guiding Principles

In addition to the desirable result that is empirically stated, Rule 1(b) of the Supreme Judicial Court’s Uniform Rules on Dispute Resolution state a series of principles pertaining the subject matter. They are summarised in the following manner:

i.- Quality / Qualifications: The Trial Court Departments of the Commonwealth are committed to providing high quality court-connected dispute resolution services to the public

ii.- Integrity: The Ethical Standards promote honesty, integrity and impartiality

iii.- Accessibility: The Trial Court seeks to provide court-connected dispute resolution services to all members of the public

iv.- Informed Consent: The neutral must make all reasonable efforts to help each party understand the dispute resolution process and any agreement reached

v.- Self-Determination: Court-Connected Dispute Resolution programs, to the extent possible, shall allow the parties to decide which dispute resolution process to use, select the neutral party, and choose the issues that will be addressed

vi.- Diversity: Court-connected dispute resolution programs are designed with sensitivity to the diversity of communities served

vii.- Timeliness: Court-connected dispute resolution services should be available early in the course of a dispute

Types of ADR Available to Court-Users

The Court places seven types of ADR Services at the disposition of the user under the Commonwealth of Massachusetts:

i.- Mediation: Voluntary, confidential process where a neutral third-party (mediator) assists disputing parties identifying a solution
ii.- Conciliation: A process in which a neutral party (conciliator) helps the attorneys for the disputing parties in clarifying the issues in conflict

iii.- Case Evaluation: A process in which the parties or their attorneys summarize the conflict for a neutral third party
iv.- Mini-Trial: A two-step process to facilitate settlement
v.- Summary Jury Trial: A non-binding settlement process in which the parties’ attorneys present a summary of the evidence and arguments they expect to offer at trial to a six- person jury chosen from the court’s jury pool

vi.- Arbitration: A process in which the parties select a neutral person or a panel of three arbitrators
vii.- Dispute Intervention: A process in which court employees meet with litigants and their attorneys to identify the issues and areas of dispute between the parties

Potential Advantages of Using Court-Connected ADR

From the text summarised herein, the advantages of not attending a full proceeding are many. The Committee Summarises as follows:

i.- Savings of Time and Money: An average lawsuit in America can last over three years to reach trial or settlement. Parties can schedule an appointment with a court-connected dispute resolution service provider as soon as they choose
ii.- Finality: Resolution of disputes achieved through binding methods of court-connected dispute resolution is final

iii.- Compliance: More likely to adhere to court-connected dispute resolutions
iv.- Custom-Made Solutions: Court-Connected dispute resolution proceedings, such as mediation, allow the parties to create their own solutions tailored to their specific needs v.- Confidentiality: The ethical standards issued by the Supreme Judicial Court for court- connected dispute resolution providers require that neutrals keep confidential all information disclosed in the course of court-connected dispute resolution proceedings vi.- Process Control: Most Court-Connected ADR processes allow the parties more control over the process, the selection of which methods to employ, the choice of who will be neutral and the time when each party will have a chance to speak
vii.- Enforceable Agreements: A mutually accepted agreement reached through mediation may be written and signed by both parties
viii.- Preservation or Enhancement of Long-Term Relationships: Disputes are caused by underlying issues. Court-Connected ADR thus offers the opportunity to create an “enduring resolution that will satisfy everyone’s goals.” (Ibid.: 2018)
ix.- Flexibility: The scope of the resolution services solution is malleable
x.- Quality: As a result of the Uniform Rules of ADR, court-connected dispute resolution providers must insure that the neutrals serving on the program’s roster satisfy qualifications established by the Supreme Judicial Court
(Online: SJC: 2018)

Current Performance of Court-Connected ADR

Presently, the Standing Committee on Dispute Resolution oversees and implements Alternative Dispute Resolution (ADR) to expand the understanding and access to court- connected dispute resolution services. For the year 2017-2018, the Standing Committee baseline data results is as follows: i) Case Filings: 40,381 ii) ADR Referrals: 21,503. Thus, it can be inferred that approximately 53% of Litigation for the cited venue goes to ADR (Sample Extracted from the Taunton Trial Court Highlights: MCS: 2017).

In conclusion, as traditional litigation costs rise, the demand for ADR proceedings grows.

 

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