Volume 1, Number 1 Symposia The Cardozo Online Journal of Conflict Resolution in conjunction with: The National Center for State Courts (NCSC) & The Policy Consensus Initiative (PCI) presents: The State of the States: Dispute Resolution in the Courts PROFESSOR LELA LOVE: While recognizing that some states are ahead of others in terms of bringing ADR into the courts, part of the momentum behind this event was a belief that the movement to bring dispute resolution into state court systems is like a wave ready to break, gaining momentum and force. [1] Thus, a gathering of leaders in the state court arena seemed most timely. If from this symposium we can learn something from each other, so that we can affect, however slightly, how that wave breaks in our individual states, then we will have had a very worthwhile afternoon. If you will indulge me for a moment, I have, for the last month or so, thought of this event every time I have heard a certain song played by my teenage daughter. The song is a mixed version of "Fantasy" by Mariah Carey. I want to imitate how the rap singer gets a feel for the audience. Part of our fantasy today is that we have states from across the country. So, let's see what states are here... Since I am not a rap singer, I need your help! If I ask, "Are there ladies in the house?" and you are a lady, please make a commotion. Are there ladies in the house? (page 2) FEMALE GROUP: Yes! MS. LOVE: Are there gentlemen in the house? MALE GROUP: Yeah. [not as loud] MS. LOVE: Good for the ladies. Okay. Here we go. Yo, is west coast in the house? AUDIENCE: Yeah! MS. LOVE: A little louder. Is east coast in the house? AUDIENCE: Yeah! MS. LOVE: Is Florida in the house? Any Florida here? Is Maine in the house? FEMALE VOICE: Yeah! MS. LOVE: Is Hawaii in the house? AUDIENCE: Yeah! MS. LOVE: We have realized the fantasy of having "sea to shining sea" here! Let me add one more category from the song. Is Boogie Down in the house? AUDIENCE: Yes! MS. LOVE: Good. I would like to turn the microphone over to Leila Zubi, Editor-in-Chief of Cardozo's new Online Journal of Conflict Resolution. [www.cardozo.yu.edu/cojcr/index.html] MS. ZUBI: Welcome to the "State of the States." I hope you enjoy today's program. I would like to thank Professor Love and Tiiu Gennert, our Symposium Editor, for organizing this event. I am sorry to announce that Margaret Shaw will not be able to join us this afternoon. However, the good news is that we will bring her remarks to you via our Journal. In fact, you will not need to take any notes this afternoon because the Cardozo Online Journal of Conflict Resolution will feature the symposium transcribed, edited, and footnoted, with hyperlinks, shortly. All you have to do is click on our website. At this time, I would like to introduce Anne Skove from the National Center for State Courts. MS. SKOVE: Hi, I am Anne Skove from the National Center for State Courts Knowledge Management Office.[2] My colleague from the Knowledge Management Office, Madelynn Herman, has been detained but will be joining us soon. I have probably connected with almost everyone here via phone, e-mail, or other means, but not in "real life." It is wonderful to be here and meet everyone in person. I do not have much to say other than "welcome." They did not tell me I had to sing, so I do not have (page 3) a song prepared like Professor Love did! I just want to welcome everybody. I also want to tell you about the information we brought with us. This is exactly what we do in the Knowledge Management Office -- link people with resources. Again, it is nice to be able to do this face-to-face. Several brochures and other materials are available in the back from a variety of National Center functions and divisions, including the Knowledge Management Office; the ADR Clearinghouse; the Institute for Court Management, which offers courses in ADR, pro se, caseflow, and other topics of interest to judges, court managers, and others; and our Court Services Division, located in Denver, which can come to a court and perform on-site evaluations on dispute resolution or other court-connected programs. In fact, Court Services is now working with Cindy Savage in Colorado to evaluate court-connected programs in that state. Sample books are also available, including Susan Keilitz, Domestic Violence and Child Custody Disputes: A Resource Handbook for Judges and Court Managers [3], which has a chapter on mediation available online; Susan Keilitz and Melinda Ostermeyer, Monitoring and Evaluating Court-Based Dispute Resolution Programs: A Guide for Judges and Court Managers [4]; and the annual Report on Trends in the State Courts. Thanks to Chris Carlson at the Policy Consensus Initiative for asking the National Center to be a co-sponsor and presence at this symposium. I am excited to be here and look forward to meeting everybody. MS. CARLSON: I am Chris Carlson, the Co-Director of the Policy Consensus Initiative. Dick Gross, the other Co-Director, is at the back of the room. We work with leaders in states to establish and strengthen the use of conflict resolution and consensus building. PCI is two years old, and has just received a grant from the Hewlett Foundation for two more years of activity. While we work primarily on enhancing programs on the government side of things, we are very pleased to provide opportunities for state court programs to meet, network, and communicate. In many ways, there are real links between the things that are done on the administration's public policy side of government and the things on the other side. In your materials is a little study.[5] I want to give some history to lay the ground-work for the discussion today. It was in the early 1980s that a few state courts began to create the first dispute resolution programs at the state level. That movement has grown steadily since that time. Today, more than half the states have some kind of a dispute resolution program. The greatest number of them are located in the courts. It seemed particularly appropriate to have someone who was the founding director of one of the first state court dispute resolution programs moderate this panel.(page 4) It is my pleasure to introduce Peter Adler, who many of you know as a leader in the dispute resolution field. In preparing to introduce Peter, I thought of all the things Peter used to do. He used to run the Hawaii Outward Bound program. He was the first Director of the Hawaii Center for Dispute Resolution. He used to be the President of SPIDR. Peter has a great sense of humor, and is guaranteed to keep things moving for us. MR. ADLER: He used to have a lot more hair on his head too. It is really a pleasure for me to be here. Lela, I want to thank you, Chris and everybody else who got me involved in this because this really is like coming home. I did work for seven years in the Hawaii Judiciary. I was Elizabeth Kent's predecessor -- one of the predecessors. And so this really is a homecoming for me -- to be back in a setting where people are talking about courts and public institutions and responsibilities and thinking about where all this has been -- and where all of it will take us. Part of the job, I was told, was to make sure that we have a little fun here today and liven it up. And Lela already did a great job of it. I think we ought to just bring her back and let her sing some more. But I did come across something on the Internet that I thought was so good I had to share it with you. It really is about working together and finding ways to bring people together and collaborating. This particular one is about partnerships. It is about mergers, in particular --mediated mergers. So, let me just read these to you. "Dateline, New York, April 20th. In a move that rocked the street today, Bert and Ernie announced that they had merged to form Bernie, a giant conglomeration of felt, that will move them into the number two spot, past Big Bird and just behind Barney. In recent years, the two had lost sponsorship from the letter P and the number five. And analysts say the merger will help solidify their market share. 'This is a logical move for us,' Bert said. 'Share is our favorite word.'" And here's another: "Concord, New Hampshire. Continuing the wave of consolidation that saw Alabama, Mississippi and Georgia join to form nations south, Vermont and New Hampshire signed a deal today that will combine the two into one state with the motto "Live Free or Whatever." The deal involves a stock swap in which cows from Vermont and chickens from New Hampshire will be exchanged one for one." And the last one is - this is an announcement from Paris: "In what is thought to be the biggest merger of all time, men and women have agreed to join forces into one sex to be called humanicorp(s). The details of the arrangement are still being hammered out, but in early negotiations, women have agreed in principle to watch ESPN but have refused to give up self-respect. There are also serious anti-trust issues that will need to be resolved. A spokesman for men, Bob, said that men had been trying for years to merge with women.(page 5) And that this was the culmination of a long held dream for them. Women were unavailable for comment." Okay. So much for all of that. Now, Lela was talking about how you get people together, and thinking about partnerships, and thinking about resolving lawsuits through mediation or other forms of ADR. And that really is our purpose today. We have three things we want to do today. The first is to examine the state and condition of court-related ADR programs. We are kind of taking stock of where we have come from and where we are today. And the second part is to think hard about where all of these court-connected ADR programs are headed in the future. And one of the things that I am hoping we'll do before we end the day is literally try to capture some of our predictions for the next ten years. So that ten years from now, when we have our class reunion, we can say, "Well, did we get it right or did we get it wrong?" And I think the last piece of what we're about today is to try to explore the potential for really pushing ADR to the limits, recognizing that we have reached a certain level of maturity. We're way beyond the missionary stage now, and we know that it's not appropriate for everything. It's not a panacea. What is the full potential starting to look like? So, that's kind of our business for today. A few ground rules: We're going to do this in two panels. The first one is a very distinguished group of folks who work in courts and have extensive experience as program administrators, mediators, arbitrators, Hearings Officers who have all been in the front line of the courts, trying to make these programs work, and to find their appropriate place. So, they are going to be the panel and I'm going to be ruthless as a time keeper. I've actually engaged a friend of mine who used to work as a time keeper for a Swiss watch company, Dick Gross, back there from PCI. We're going to give each panelist eight minutes. After that, I'm going to start to walk around here and get fidgety and, finally, I'm going to gong them off the stage. Panelists, beware. Eight minutes. And I'll try to give you a heads up before that -- before you hit that. So -- MS. LOVE: I thought we negotiated ten, Peter. MR. ADLER: No. Eight. The second thing is that it's important that we also establish a kind of a tone here today, of ideas that are open to challenge. We really want to have that kind of collegial discussion. It's actually the start of a conversation, not the completion of a conversation. So there are no sacred cows. There are no taboos and there are no off-limits. I think it will be lively if we are able to challenge some of the things that we assume are articles of faith.(page 6) The third thing is that I'm not going to be neutral. Usually, moderators and mediators are neutral. But I'm surrounded by attorneys today and I'm not an attorney. I'm a sociologist. So, I'm going to be paying particular attention to your assertions and seeing if I can catch you in the unauthorized practice of sociology today. And now I'm going to ask the panelists to introduce themselves very quickly, name and affiliation, where you are from. Let's go right down the panel, and we'll start with Eileen-- MS. PRUETT: Eileen Pruett. I'm the Coordinator for Dispute Resolution Programs at the Supreme Court of Ohio. MS. KENT: Elizabeth Kent from the Hawaii State Judiciary, also sometimes called Peter III. MS. SAVAGE: Cindy Savage, Director of the Office of Dispute Resolution for the Colorado Judicial Branch in Denver. MR. WEITZ: Dan Weitz, the coordinator of ADR Programs for the New York State Unified Court System. MR. VAN EPPS: Doug Van Epps with the Michigan Supreme Court, State Court Administrative Office. I direct the Community Dispute Resolution Program and will soon serve as Director of our Office of Dispute Resolution. MS. WOHL: Rachel Wohl, Executive Director of the Maryland ADR Commission. MR. ADLER: Just one more quick thing. You've got their biographies in the packet, and you've just heard who they are. I was reading through their credentials and one thing is that they're all attorneys. They all have a career in practice, mediation, arbitration, and service as hearing officers. I think every one of them has had some kind of teaching experience as well. They've been involved with universities and colleges and law schools. All of them have been in private practice as litigators, as former prosecutors, as members of an Attorney General's department. So, there's lots of experience. All of them are working with Chief Justices or with commissions that are court related, moving ADR along. And all of them have many years of experience. Now, I'm going to ask each of them to speak. Then, we'll stop, take some questions. Really, more informational questions. We'll take a break, and then we'll bring the researchers up for the second panel. I'm hoping we can go through the formalities pretty fast and get ourselves into the open discussion. So with that, Eileen. MS. PRUETT: Court-staffed mediation in Ohio strikes me as being much like the storybook character created by Hugh Lofting in Dr. Dolittle[6] the Push-Me-Pull-You.(page 7) The Push-Me-Pull-You didn't have a head or a tail. It didn't have a tail, but a head at each end with sharp horns on each head. They were very shy and terribly hard to catch. "Lord save us", cried the duck. "How does it make up its mind?" "It doesn't look as though it has any," said Jip the dog.[7] The use of this image, I think, aptly describes the tensions created when judges consider implementation of a mediation program. Judges achieve a position of leadership in the court and in the community by virtue of their decision-making capabilities. Courts must change to accommodate a consensual, private case resolution process that does not rely on judicial decisions as its focal point. These changes, I believe, constitute a fundamental change in court culture. Significant questions and concerns for courts arise during the process of this change. I hope to briefly explore those concerns and the ways in which we address them in court-connected mediation program design and implementation in Ohio. My first encounter with the Push-Me-Pull-You tensions occurred when I helped evaluate the local Settlement Week Program.[8] The program manager and I met with social scientists to try to answer some of the questions that might help us meet a simple goal -- to increase the use of mediation in courts. Initially, the Supreme Court Committee on Dispute Resolution ("Committee")[9] wanted to know if our local Settlement Week Program was "successful." After many sessions where we sought to design the research and develop survey instruments, I finally realized that it really was impossible to answer the question in terms of program success. The researchers made it clear that they could look at all kinds of aspects of the program and analyze all the various data in different ways, but no measure that defined and described success was possible.[10] At the same time we were developing the exit surveys we decided to seek answers to our questions about how attorneys perceived mediation. Responses from 2300 Ohio attorneys provided baseline data to support court-based mediation.[11] Attorneys saw that mediation would be useful in a broad range of cases including business disputes, personal injury litigation and family disputes. And to my surprise the attorneys who responded didn't say that mediation would only be helpful in the "other guy's" practice areas. They favored mediation over arbitration. Attorneys who practiced in counties that had a Settlement Week program were more likely to advise their clients to try ADR procedures,[12] and one very significant finding was that attorneys were more likely to refer cases to mediation if they had participated in mediation with a client.13 Finally, we developed forms to track the length of time each case was in the system and developed an experimental design where we could track both mediated and non-mediated cases.[14] All of this seemed to be going well until I actually began to receive exit surveys and forms used to track the mediated cases. The boxes were overwhelming. We have exit surveys going back to 1990.[15] Sometimes I'd like to burn them, but we have learned a lot from them. We used this information and other data to establish a pilot project in the first three civil mediation projects in general jurisdiction courts.[16] Key components of the initial pilots included the following: 1. Attorneys would participate in mediation with their clients.[17] (Page 8) 2. Court staff mediators would mediate the entire range of cases presented in the common pleas court.[18] 3. The mediation sessions would be mandatory.[19] 4. Continuances would be discouraged. 5. Mediations would be scheduled as early as practical in each case.[20] 6. Participation in mediation would not increase case processing time. Reliance on empirical data to support program design made the Committee and staff feel secure. I'm not sure that it either encouraged or discouraged interest from the trial courts. But three courts did come forward to participate in the pilot.[21] Then we began asking parties and their attorneys about their perceptions of the mediation process at the same time we began a project to ask the same questions in parenting mediation programs in domestic relations and juvenile courts.[22] We are now convinced, after almost ten years of asking, that people really do like mediation and are satisfied with it.[23] We've asked about satisfaction, perceptions of fairness, and neutrality of the mediator. We also ask parties if they get enough time and opportunity to speak and control the outcome in different mediation settings. The answers from small claims, family, general civil and appellate programs consistently support that litigants and attorneys are satisfied with mediation as a process even when they don't reach full agreement. They overwhelmingly feel that the process is fair and that the mediators are neutral.[24] Of course, we've known this intuitively and through experiences with Night Prosecutor Programs and other community mediation models that began in Ohio in the early 1970's.[25] But it has been nice to have the intuition documented. We'd like to stop asking the questions (and thus eliminate some of the clutter), but I fear that we need to ask even more questions. For example, we don't have a clear picture of the comparison people have in mind when they respond positively about their experience with mediation. What are factors that cause people to be only "somewhat satisfied"? Are there factors that tie satisfaction to settlement on some but not all issues?[26] In addition to our reliance on empirical data and our commitment to collect and analyze data as programs develop, we've used several other strategies to ease the tensions of imposing a mediation program into the existing trial court culture. The program design process allows local control and creativity. It is a "grow your own" model. There are few statutes or rules that limit the use and design of a mediation program.[27] The Office of Dispute Resolution presents guidelines for best practice and they are usually adopted. We also serve as a resource to deal with problems presented by the mediators, judges and advisory committees. As the staff and Committee have worked with new courts each year, we have gained experience and knowledge that supplement the research findings. We now have the practical experiences of twenty-seven different projects to rely on as we develop new projects.[28] (page 9) The brainstorming and thoughtful policy recommendations from the Committee have also been important. All of this knowledge has contributed to additional requirements for courts seeking to receive funding and implement a staff mediation project. These requirements may seem burdensome, but courts have been willing to do a great deal in order to implement high quality programs. 1. Participating courts send a team consisting of a judge, administrator, bar leader and/or mediator to an orientation meeting at the beginning of the grant. They also send appropriate court staff to basic mediation training. We also provide specialized and advance mediation training to mediators and seminars on the role of the attorney in mediation with the local bar. 2. Each court must establish a multi-disciplinary advisory committee. This group serves as a resource to the mediator and court in the area of education, lobbying for future funding and dealing with concerns or complaints about the mediation program. 3. Mediators and judges must strictly adhere to the confidentiality constraints set forth in statute. 4. Each mediator is expected to mediate no more than 200 cases per year. 5. Mediation services are provided at no charge to the parties. 6. Courts are expected to develop funding to continue the mediation program after the grant period ends. Grants have been awarded for two or three years. Sometimes the Push-Me-Pull-You tensions overwhelm me as I try to clearly articulate our goals and implementation strategies for mediation in Ohio Courts. We don't want to force courts to adopt any particular kind of dispute resolution process; we want them to make informed choices and select mediation as their primary dispute resolution service. The pilot evaluate and expand model has served us well. Our staff has worked with the smallest county courts, with our Supreme Court, and many of the courts in between to assist in the development and maintenance of high quality mediation programs. I think we will meet our goal to offer mediation as a court service in every county by 2005. MR. ADLER: There you go. Bingo. I won't interject between the other panelists, but I'm really reminded of meeting Chief Justice Moyer in Ohio. And 10 years ago, 15 years ago, Chris introduced me to him. I remember him saying in these early days of ADR that the reason why he was interested in ADR was because he was driving through a small town in Ohio, where he came across a sign that said something like Homer Smith, taxidermist and veterinarian. Either way, you get your dog back. He said the whole idea of ADR was to get some live dogs coming out of the shop. Elizabeth. MS. KENT: They gave us a list of five areas that we could touch upon. I'm going to talk briefly about three of them. The first area will be my idea of some features of an ideal model for a court-connected program. Then, I'll talk very briefly about feedback and evaluation. Finally, I will give one piece of advice for starting a program. (Page 10) Before I start, I don't know if any of you have read the book, The Alienist, by Caleb Carr.[29] In his book, the fictional hero talks about the importance of knowing someone's context. I think you need to know a little bit about my context, because what's ideal in my world might not be ideal in yours. In Hawaii, we're very geographically isolated. That means that if there is a service that we need that's not available, then it's difficult to get because it's a five-hour plane ride away, and expensive. We're very small, both in geographic size and in population. That's important because it's easier to get things done in a place that's small. Hawaii has a very centralized government and a unified court system. We don't have municipal courts or local courts. That's important because people in Hawaii are used to having the state government provide services. They don't look for a local or municipal government to do that. And, since statehood, almost all of our elected politicians have been from the same party, democratic. The Governor appoints most of the sitting justices and judges. Then, finally, we're a very heavily unionized state. Almost 30% of the employees in Hawaii are covered by collective bargaining. That's my context. If some factor is different in your state, then what makes a program or a component of a program ideal in my state might not work in yours. So with that, let me start. The first thing I'll talk about is structure and governance. An effective program needs to have a good statute. The statute should be general and not too specific. It should provide a direction for the office. The statute needs to have a statement that talks about state policies supporting ADR and the fair, efficient, party-driven resolution of cases. It should be clear that ADR is not a substitute for the courts, but a complement to the court system. There should be committed funding for the office. And it should be from general funds, not from special funds. The office should not be dependent on a surcharge or a filing fee, because you're not quite sure what your funding is going to be from year to year. Also, in terms of governance, there should be clear support from the Judiciary for the office. That means that the office should be placed either in the Supreme Court or in the office of the administrative director of courts. Now you have the structure and governance. What should the office do? There are three long-term goals that the office should look toward. The first is a systemic use of ADR in the state and throughout state government. The second is developing an infrastructure for ADR use in the state and in the government. The third should be promoting the private and the not-for-profit provider sectors, so that there is a strong base for providing ADR. How does an office achieve those goals? There are a number of different functions for the office. One, and most obvious, it can resolve cases that are pending in the courts. But the office should not be limited to that service. The office can also resolve cases that are outside the courts.(page 11) It should probably look for high profile cases that affect the public policy, cases that affect large numbers of people.[30] The office should look at training, research, evaluation and education. It should work with and provide funding for other ADR providers, especially in the not-for-profit sector. The office should promote ADR in the state. It can do that in a variety of ways: through the media, in commercials, in advertisements, in public notices. It can work with the schools[31] to provide ADR. And it can work with community organizations to provide ADR. The office should recommend statutes and rules that call for ADR, and promote needs for ADR in the field. For example, the statutes can relate to quality control and confidentiality. Each state needs to look at the different possible functions and decide the best way to use the functions to meet its long-term goals. Before I leave this topic, though, I want to talk about an ideal court program. It would have appropriate mandatory programs at each level of court. "Mandatory" is an important word to stress here because mandatory programs get used more than voluntary programs. The ideal program would have appropriate rules of court at each level of court that relate to ADR. Case reduction should not be the goal. Instead the intent would be to provide alternatives for the parties to the litigation, to meet the consumers' needs. Often, outsiders perceive courts as caring a little bit too much about case reduction, rather than providing alternatives. All of the programs should be high quality programs and well regarded. And my advice is that if you don't think you can do it well, it's better not to do it. ADR is set-back by poor programs. An important point is that all of the programs should be individualized. They should not be approached with a cookie-cutter kind of mentality. And to quote Professors Sander and Goldberg, you need to "fit the forum to the fuss." That means, for instance, that what is done in a small claims court is going to be very different from a program in a court of general jurisdiction for personal injury types of cases. So, in closing on this part, I think that the ideal ADR office wouldn't be constrained to just working in the court. It would also work in the executive branches and the legislative branches. I do think that having the ideal program placed in the Judiciary provides for a lot of good alternatives and opportunities. In my experience with Hawaii's program, the Judiciary has been a very good home for our program. Now, I want to spend one minute on evaluation. Dick, I think I have 52 seconds left. And I agree with Eileen. We found that a large number of people are satisfied with mediation, and they like mediation. But we need more partnerships with the academics and the professionals for their evaluation. I'm not sure that we know exactly what works, why it works, and when it works. And I'd like to know more about that. I do know that people appreciate courtesy and education about alternatives. This goes to the quality control that I was talking about. (page 12) We need to have the right expectations by counsel, by parties and by the neutrals, about the process that will be used. For instance, you don't want somebody going to a non-binding arbitration program and expecting that there's going to be a creative facilitative result. That's just not going to happen. Sometimes, parties don't have the proper education about what expectations are. So, quality control issues arise. My final piece of advice can be summed up in one key word -- commitment. The person who is starting a program needs a commitment from the Chief Justice[32] and other Justices and administration that they will support the program. The office needs a committed staff, because the staff is the backbone of any program. The program will not succeed if you don't have good staff. You need to have commitment from others in the system, such as judges, legislators, the executive branch, and especially from the community. Then, finally, I think you need a committed mentor. And I've been lucky. I've had Peter. But you need to have someone who you can turn to. The final bit of advice related to that is, don't be afraid to ask for help. Give them an opportunity to say no. MR. ADLER: Terrific. I'm just going to go right on down the line, unless there's some compelling reason not to do that. So, on we go. MS. SAVAGE: Well, I'd like to hire Elizabeth as a consultant to come out to Colorado and talk to our legislature about getting us some general funds, and I agree with much of what she said about the ideal program. We don't have that yet in Colorado. But Colorado is moving in that direction. So what I'm going to talk about today is also the features of an ideal program. The features are defined at least in part by the answer to another of the topics we were given to choose from, which is, should courts be thinking "outside the box." It seems to me the answer is "yes," very much so. I'll also close with a couple of pieces of advice. And I also want to start by talking about context. The Colorado Office of Dispute Resolution began in 1983.[33] In its first year, the Office mediated 54 domestic relations cases. The mediators at that time would pull files from the courts. Just go down, pull files at random and call the attorneys or the parties, and see if they could persuade them to come in for mediation. So, that was our beginning. Courts were given the authority to refer cases to mediation by the statute,[34] but didn't start out doing it that way. We've come a long way since then.[35]We now mediate over 2,000 civil and domestic cases a year. And it's not just the Office of Dispute Resolution that's grown, it's the whole field of ADR in Colorado. The statute was later expanded to allow judges to refer cases to other forms of ADR in addition to mediation.[36] So, the focus has broadened. In addition to mediation, ODR now provides ADR settlement conferences by senior judges, parenting coordination, and close to 1,000 cases per year are screened in our four multi-door courthouse programs.[37] It has been estimated that courts in Colorado referred well over 8,000 cases to ADR in 1999. We have 22 judicial districts, 22 different ways of doing things. And that's both good and bad. The (page 13) "Push-Me-Pull-You" metaphor applies not just within the judicial branch, but to ADR as a whole in Colorado. Let me give you a couple of examples. A group of us representing five different organizations -- the Colorado Bar Association, the Colorado Judicial Institute, the Department of Law, the Colorado Council of Mediators and Mediation Organizations and my office -- spent several years looking at the issue of qualifications and certification, and came up with a draft proposal, which was then voted down by a couple of the organizations we represented.[38] So, we have just abandoned that effort, although we subsequently developed the voluntary Colorado Model Standards of Conduct for Mediators.[39] There's a lot of disagreement about what to do about the certification issue, and whether to go forward with that. I've also been participating on a committee called the Domestic Relations Multi-Disciplinary Committee, which is looking at family cases in the courts and how we can treat those cases in a better manner. The topic of mediation, of course, came up, and the topic of mandatory mediation came up. That was very controversial. And there was not clear support. There were people on both sides. So, there's a lot of the "Push-Me-Pull-You" in Colorado. Another part of the context you need to know about is that there is no funding for the Office of Dispute Resolution from the courts or from the legislature. ODR is a cash-funded program. Our funding comes from the parties, and the fees that they pay for our services. So, if you think it's difficult to predict your budget under general funds or under filing fees, it's even more difficult when you're relying on caseload projections. But we've managed. It proves that wherever you start from, you can still work to create the ideal program from that place. That's what I've been doing in Colorado, and I've found a lot of support for doing this. One of the reasons I chose to speak on this topic was that we were asked to comply with a new budget system this year, called "zero based budgeting."40 I don't know if any of you have experience with this. I don't particularly recommend it, but there were some advantages. One of those advantages was that we were to draft a mission statement and a vision statement.41 In doing so, I really got to thinking about what would be the ideal program. So I'll just read a few of the things I put in the mission and vision statements. I would guess these are very similar to things that Elizabeth said. I know Dan and Rachel will also be talking on the ideal dispute resolution program. So, I would guess that we're all in some agreement about what the future should be how you get there, how you implement it, and are there differences. There are six areas I would want the office to be engaged in. And these are areas we are engaged in presently. First, assisting the courts in designing, implementing, and administering dispute resolution programs. These are customized to each district. Even if there were a mandatory ADR requirement, it would need to be customized to the district to be effective. (page 14) Secondly, consulting with state and local government regarding the design, implementation, and administration of dispute resolution programs. We are now working with state government through a committee of the Bar Association. We're planning our second training this year for state agencies to educate them about mediation and about ADR systems design. We are also meeting with the individual agencies to work with them to customize programs. It seems to me, that's an ideal role that an office of dispute resolution can play as a center of expertise and credibility about dispute resolution. That effort has been supported by the Governor, the Chief Justice, and the Attorney General, which helps make it happen. Third, providing dispute resolution services to citizens. We provide services now, not only for domestic relations cases, but also for civil, probate, dependency and neglect, and juvenile cases. As I mentioned earlier, we also provide parenting coordination, ADR settlement conferences, and case screening. We also provide occasional arbitration and neutral evaluation services. And, we handled our first public policy dispute just a few weeks ago.42 So, I'm happy to let Chris know that her and Dick's efforts have not been in vain and, hopefully, will continue in that direction as well. Fourth, providing information to the public regarding dispute resolution and, of course, Colorado's dispute resolution programs. I get many calls every day, as I'm sure all of you in the state offices get. Questions from local citizens who want to become mediators. Questions from parties who want help filling out their divorce papers. Questions from lawyers about our services. Questions from people from other states who are developing mediation programs in state offices. Research questions. We are a valuable source of and a logical place to provide that information. Fifth, we are collaborating with other individuals and organizations, including governmental units, such as bar associations, community mediation centers, schools, private and other public dispute resolution programs, and others, to increase access to dispute resolution services. One of the most exciting projects I've been working on this year is working with community mediation centers to develop a proposal to get funding for community mediation centers in Colorado. That's a way that I think the courts can work "outside the box" and support mediation in the schools, support mediation in the communities, as well as providing a source of low-cost mediation for court-referred cases, thus making dispute resolution more accessible to people. The proposal will not come from our office but from the centers themselves. And they're out looking for a sponsor. So, I'm very hopeful that that will expand our efforts. And I think I'm getting a signal here. MR. ADLER: Finish your thought. MS. SAVAGE: Okay. And sixth, providing dispute resolution education and training. This can include everything from speaking at Bar Association functions to judicial education and training for state agencies. In closing, in terms of advice, I have two suggestions. First, network. There are a lot of people who can share their knowledge about what's been tried and how it has worked. And second, use collaborative processes to resolve the disputes that(page 15) will inevitably arise in the course of doing this work. Walking our talk is key to our credibility and ultimate effectiveness in doing this work. MR. ADLER: Great. I noticed after you said you worked on the public policy case, people broke into applause next door. It's just terrific how sensitive they are to what we're doing in this room. MR. WEITZ: May I? MR. ADLER: Sure. MR. WEITZ: I've decided not to be as ambitious as some of my colleagues and picked something that I thought would be easy. Should courts be thinking "outside the box"- that is working with schools, community dispute resolution centers, and other institutions? Furthermore, I did not think it would be possible for me to get away with justifying "no" as an answer here, so I thought I'd say "yes." Then, I bumped into Lela Love the other day, and she told me that we did not have ten minutes but rather that we would have only eight minutes to speak. At that point I thought I should hedge and answer "maybe." To be safe I should tell Peter that prior to coming to the courts I did work for a sociologist so maybe he'll be a little lax with me if I am unable to get through it all. Obviously though, the answer is "Yes!" It is the only way for ADR to serve the courts to its fullest potential. To me, it comes down to certain values. Values such as "quality of justice," "access to justice," "fairness," and "efficiency."43 In the next eight to ten minutes, I will discuss the way these values translate into practice, both to court initiatives in general and to the practice of ADR within the courts. I will argue that there is a tension created among these values when applying them to general court initiatives and then by extension to ADR. To put it another way, while the courts' values and those of ADR are substantially similar in theory, they have the potential to compete when put into practice. Elizabeth talked about context being important. In order for us to understand why ADR is practiced the way it is in the courts, we must always look at the context. I will provide several examples of "inside the box" thinking within the courts placing emphasis on both court initiatives in general as well as ADR. Finally, I will offer several examples of what can happen when the courts do think outside the box, within the meaning of the question here. In New York, there are 3.8 million new case filings each year. The court system is constantly developing new initiatives to keep up with burgeoning caseloads. In developing new initiatives, the court is always looking to promote the values of quality of justice, access to justice, fairness, and efficiency. These values are often quantified by costs to the parties and costs to the system both in terms of speed as well as the degree to which one has had his(page 16)"day in court." Due to the pressures within the court system to provide fair and efficient case resolution, efficiency often means settlements. You see this in many court initiatives. Take a look at standards and goals for example. Judges are often measured, reviewed, and critiqued by the degree to which they can move cases along within certain time frames. A certain "judicial badge of honor" has even evolved for those judges who have developed a reputation for being "great settlers." In New York, we recently released our Comprehensive Civil Justice Reform Program.44 In general, this program is about enhancing the quality and efficiency of the court system. While an entire section of the program is devoted to ADR, one of the central initiatives is the use of differentiated case management (DCM). DCM procedures require screening of cases when they are filed and tracking them based on their complexity (standard, complex, or expedited). This sort of triage probably sounds familiar to many of us in the room, especially if your last name is Sander.45 It follows that ADR, when it is conducted within the box (in the courts), is vulnerable to being driven, if not in whole, certainly in large part by settlement rates. This presents a problem when you consider the prevailing values behind ADR. While ADR is driven by quality of justice, access to justice, efficiency, and fairness, these values are usually quantified by the degree to which the process also adheres to consent, free-choice or self-determination. This is particularly true when referring to mediation, the most widely used form of ADR. For example, fairness in mediation is often measured by the degree to which the parties settled without the presence of coercion. Quality may be measured more by the preservation of a relationship rather than simply whether or not the case settled. Mediation certainly has the ability to save time and money for the courts and litigants. Yet, the values of quality and fairness (lack of settlement coercion) have the potential to suffer the more closely tied to the court system they are. Let me sum this conflict up in a way that many others have. In responding to the question, "what does ADR have to offer the courts?" court administrators generally argue the following: (1) ADR has the ability to provide relief to the courts caseload and; (2) ADR has the ability to offer litigants a quality of justice that may potentially exceed that which they could have obtained in litigation. Number one is easy. Courts can settle cases whether ADR is used or not. I think we can probably even agree that ADR has more of an impact on the timing of settlements rather than on settling cases that would not have otherwise settled.(page 17) Number two is a lot more difficult. The values are potentially compromised. For example, as a result of the pressures to generate settlements, court-annexed ADR tends to be more evaluative when conducted solely within the confines of the court. This emphasis on evaluation is of particular concern in mediation because it likely reduces the degree of collaborative problem-solving and arguably threatens the values of self-determination. Space, atmosphere, lack of resources, and time pressures also tend to put a strain on ADR processes. So when offering ADR to the courts, providing relief is a much easier sell than the quality of justice argument. Furthermore, efficiency, in terms of providing relief tends to dominate both the general innovations going on within the courts and, by extension, the use of ADR as well. This creates a tension between courts' focus on "efficiency" and some of those driving principals of ADR and mediation (consent, free-choice, self-determination), as well as the courts' own stated goals of fairness, quality and even preservation of relationships or prevention (lack of a need to return to court). With all of these competing interests, it is extremely challenging for ADR and mediation in particular to fulfill the values of quality of justice, access to justice, efficiency, and fairness. ADR can only serve the courts to its fullest ability if the courts are utilizing all potential ADR resources. To do this, courts must be thinking "outside the box" in the form of working with schools, community dispute resolution centers (CDRCs), and other institutions. Let me provide some examples of what we have done in New York to support the argument that the courts should be thinking "outside the box." The irony in New York, however, is that the courts' utilization of ADR began first and only with thinking "outside the box" as it is meant here. In 1981, the New York State Legislature established the Community Dispute Resolution Centers Program (CDRCP) which serves as a joint local and state effort to provide community forums for the resolution of disputes as an alternative to criminal, civil, and family court litigation. Through the CDRCP, the New York State Unified Court System (UCS) provides funding for non-profit Community Dispute Resolution Centers (CDRCs) to provide dispute resolution services in each of the state's sixty-two counties. The central premise behind the creation of the CDRCP began as a result of burgeoning caseloads in criminal court. Cases including interpersonal disputes between neighbors, landlords, tenants, and acquaintances were being handled by traditional means in the criminal court. Drafters of the legislation reasoned that individuals should be provided a forum in which to resolve their differences on their own, "free from intimidation or restraint." The court system has clearly benefited from thinking outside the box and supporting the CDRCP. The CDRCs consistently handle over 40,000 cases screened as appropriate for ADR each year. Of these cases, over 22,000 mediations, conciliations, or arbitrations are conducted.(page 18) Since 1991, the average cost per case screened, as appropriate for dispute resolution, has ranged from $56 in 1991 to $85 in 1998. The average cost per person served has ranged from $25 in 1991 to $38 in 1998. The total cost per case conciliated, mediated, or arbitrated ranged from $114 in 1991 to $149 in 1998.46 I should also add that in these centers, we strongly encourage the use of facilitative mediation. Furthermore, the training standards are geared toward obtaining the kind of quality that many of us in the ADR community think of as preservation of relationships as opposed to resolution rates. These centers clearly help the courts to use ADR in a way that fulfills its potential. The CDRCs in New York have also helped the courts to work with schools, in the form of school based peer mediation and conflict resolution services. Most of these services are provided with separate funds obtained by the CDRCs. However, the funding that the court system offers provides the foundation from which many centers receive other funds. The State ADR Office, recently conducted a survey of our CDRCs to find out what types of services were offered to the schools during the past fiscal year (April 1, 1998 to March 31, 1999). The survey sought information on the following types of services: peer mediation training for students and staff; conflict resolution training for students and staff; informational presentations to students and staff; and the number of peer mediations conducted. The information was also broken down by elementary, middle, high school, and college. The following are some of the highlights of what we found: Over 2,000 students and staff received peer mediation training and more than 4,000 peer mediations were conducted. Over 11,000 students and staff received conflict resolution training and nearly 10,000 attended general information sessions. Now, I don't have the studies that prove that this kind of exposure to dispute resolution at an early age comes back to help the courts with regard to the number of civil cases and, more importantly, in promoting non-violence. I'll leave it to other people to do those studies. However, I'll take it to my grave that its worth doing and that the courts should be involved in it. Another program that exemplifies the kind of creativity that only occurs through collaboration between the courts and community dispute resolution centers is our Family Court Mediation Project. During fiscal year 1997-98, in 55 of New York State's 62 counties, CDRCs mediated custody, visitation, support, PINS, and juvenile delinquency cases that originated in Family Court. These centers rely on volunteers, some of whom are attorneys, who have completed a 25-hour basic mediation training and a 12-hour advanced training that focuses on Family Court issues. The training component is followed by apprenticeships with skilled mentors. Funding is made available for the centers to hire a family court coordinator who performs the following functions: screen cases to determine whether mediation is appropriate on a (page 19) case-by-case basis; screen out cases involving domestic violence, substance abuse and other forms of abuse; educate parties about mediation and ensure that parties are voluntarily choosing to proceed to mediation; administer and schedule mediation sessions; and maintain records and statistics. Over four thousand family cases were referred last year alone. Over two thousand of them were either mediated or conciliated and the resolution rate for those cases was 80%. The natural extension of the Family Court Mediation Project is to provide mediation services in Supreme Court where the entire matrimonial action can be handled, rather than being limited to issues of custody and visitation. A wonderful example of this expansion is taking place in Orange County, New York, through a collaboration between the existing CDRC and the court. This program uses a co-mediation model involving an experienced non-lawyer mediator and an attorney mediator with experience in matrimonial law. This co-mediation model emphasizes the facilitative style of the non-lawyer mediator who has experience mediating the interpersonal issues often found in family cases, while the lawyer mediator ensures that significant legal issues are not ignored. This program is a perfect example of the kinds of programs the courts can develop when they begin to think outside the box. Court initiatives are filled with pressures to settle cases. While extremely creative and successful work is being done, these pressures have a negative impact on the ability of ADR to realize its full potential in enhancing the quality of justice, access to justice, fairness, and efficiency of service by the courts. The result is a compromise. And compromise is a good form of problem solving, but we know we can do even better. MR. ADLER: Thank you, Dan. Take a breath. Take a glass of water. We'll come back. But it's really a point that we ought to hear the essence of and I really do appreciate your brevity on this. Doug? MR. VAN EPPS: Can I ask for a couple of volunteers to pass out some materials here? I'm very glad to be here among colleagues I've worked with for years, and to meet new colleagues as well. There's a lot going on in Michigan. We have an extensive history of working in ADR, including operating 25 community mediation centers for ten years. We have a dispute resolution task force convened by the Supreme Court to create new court rules. And I have a couple copies of those rule proposals with me, if anyone would like a copy after the session. We have a lot of activity going on in state and federal offices in designing ADR processes into their hearings and complaints processes. I'm more than happy to talk after the session with anyone interested in these initiatives, but I really wanted to pick up on the theme of not only thinking out of the box, but thinking out of the building and thinking out of the county. (page 20) I'm getting to the point of wondering whether "court-connected cases" is an appropriate focal point for us, or whether the tight focus that we place on this limited domain of disputes gets us into more trouble and creates more obstacles in assessing ADR processes than we'd like. First, just for fun, flip to the back of the handout. You should see a court user survey. This is something I've been playing with for a couple of years, and it's loosely based on a survey I was handed at an American Airlines counter one day. I changed the airline waiting areas to courtrooms, and clerks to ticket officers and so on. When you cross an airline with a courtroom, this is what you get. We have not implemented this in Michigan courts yet, but that day is coming soon, I hope. Another "out of the box tool" included in your materials which I would be interested in testing is called a "case information notice." It may be most helpful in states that have statewide information systems. We're getting to the point with collecting data that we should be able to tell people what your expectation is when you come into the court. It is kind of like an informed consent document that you get at the hospital. If we know litigants are only going to have a 2% chance of having a trial in the kind of matter that they have filed, why not just tell them in a notice? In short, consider this a possible means of candidly telling people what we, particularly the court administrators among us, know based on all the data that courts collect. In Michigan, I'm told by our information technologists that we would be able to actually compile the data and send a notice like this, with very sharp accuracy, within about two years. In terms of "access to justice" considerations, let's just tell people what we know about the litigation and ADR experience they're likely to have in court-connected processes. Back to my questions about the focus we bring to examining ADR in the court environment. I'm generalizing here, but let me suggest that court administrators will want to know whether ADR expedites case processing. Do ADR processes resolve cases within states' time guidelines for case processing? Litigants have an expectation of going to trial and, I take it, of "winning." That expectation is only addressed once in mediation, in that they enter the process still thinking there will be a clear winner. The expectation shifts when they arrive at resolution they can "live with." Mediators want to know whether they can grow a practice out of this. County administrators have a keen focus on the cost of the judiciary and wonder whether ADR will be yet another layer of bureaucracy. Working closely with legislators in the past few years, their ADR focus is whether ADR, and particularly mediation, is saving anybody any money? These are just meant to be brief sets of expectations I typically run across. And really, part of my role in the Supreme Court has been to try to figure out how to create a common focus. (page 21) Is there some kind of lens that we can share with everybody, that maybe we can all view the same picture through? Recently, I've been very impressed with a new nomenclature your judges are going to be returning home with from conferences over the next couple of years. It's a concept or judicial practice called "therapeutic jurisprudence," which is very much in the social sciences kind of initiative. Briefly stated, therapeutic jurisprudence is the notion that people should come out of the judicial system no worse than when they went in. Even the Department of Justice, through its Balanced & Restorative Justice initiative, posits that kids ought to come out of the criminal justice system with more abilities or capabilities than when they entered the system. They certainly should not come out worse. This concept, that the court has a therapeutic role in the administration of justice, is initially being applied in courts' family divisions and in drug courts. From my perspective, I think that courts' offering litigants ADR processes is part of this "therapeutic" construct. Viewing a conflict from an advantage point, the essential question may be how best to find a healthy resolution of the matter in dispute? Traditionally, in evaluating ADR we're looking just at the moment a dispute is in court. Traditionally, we have offered only the adversarial litigation process. All the tools we've applied in court relate more to moving "the case" expeditiously along. But we're back to looking at the dispute through just one lens: moving the case along. We're not looking at parties' expectations, legislators' interests and so on. We're not asking where did that case come from before its court moment and where will it go after it leaves the court. Disputes start somewhere: let's say one came from 121 Elm Street at some point. Then it went to the school. Then it went to the prosecutor. Then it went to the township supervisor, then it went to court to get a protection order and then it went back to school. The kids are involved. So the larger picture really shows a complex trail that the dispute has created. The court piece is only one segment of the trail, a conflict. It's that segment that we are generally discussing with evaluators, legislators, county commissioners, court administrators and dispute resolution program administrators. We're not, however, looking at the larger picture and incorporating all the costs associated with the entire life of the conflict. To date, we're not measuring costs avoided if disputes are actually resolved to the point that no public official need respond again. We've not yet developed good ADR evaluation models for testing the benefits to the community if, for example, disputes are resolved in the court environment and require no further collection or enforcement action or whether counties require less expenditures on law enforcement as a result of effective youth mediation programs. We need to begin identifying the broader picture of a dispute: Where did it come from? (page 22) How many public interventions have been provided? What were their costs? How many people have become involved in some way in the dispute? How many people were helped through the public interventions? How many private attorneys or advocates or social workers were involved? Can we create some type of "conflict management barometer" which helps us gauge whether our public responses to conflict add a measure of quality of life to our neighborhoods and communities? Or, in the terms of the political rhetoric, do we feel healthier (from a conflict management perspective) than we did four years ago? We look beyond just measuring case disposition times, where resources are managed to get everybody out of the system as quickly as possible with all too little focus on the quality of the result. Let's look more at the dynamic of the trail or wave of the conflict and see how that affects our designing dispute resolution systems, whether within or outside of the court environment. In thinking "outside the box," maybe a court mediation program is just one possible response to a conflict in what might be called an "integral dispute resolution system," borrowing from health field terminology. And fitting squarely within the emerging view of therapeutic jurisprudence. Let me conclude with an example. When kids are in court in abuse and neglect matters, the "conflict" is traditionally viewed from the standpoint of many court constituents each having "files." The prosecutor has the case and looks at it through his or her own lens. The Family Independence Agency caseworker has the case and looks at it through his or her own lens. There are family members, friends, attorneys, and so on. Is there, however, something that can bring us all together to more "therapeutically" manage this conflict and find a resolution? In permanency planning mediation, we do bring together all the many parties, these people with different lenses, in a mediation atmosphere. And once the parties remove their focus from the "case" to examining the history and assessing the future of the conflict, the proverbial light bulbs go off. Parties look at how to manage that dispute for as long as it's going to be in the court system and maybe even after. Many people, particularly lawyers, appear amazed that they can do this. At this mediation event, it's the first time that they have come together to look at this community problem of a family in need of care. It's a holistic response, an integral response and a therapeutic response. As the concept and practice of "therapeutic jurisprudence" continues to emerge, I invite you to consider how ADR, particularly mediation, fits into our collective response to conflict and in our proactively creating dispute resolution systems. My own belief is that for courts evolving into the "therapeutic" or "holistic" model, mediation in particular is a health-oriented process easily integrated into the court's continuum of services. Thanks very much. MR. ADLER: Thank you, Doug. Rachel? MS. WOHL: (Rapping) The courts know their reputation is on the rocks, so they decided to move out of the box. (page 23) Now, I notice that my boss, the Honorable Chief Judge Robert M. Bell, just walked when I began rapping, having missed Lela's earlier rap, and he thinks I'm insane right now, so -- We're very fortunate in Maryland to have a very forward thinking Chief Judge. If you would just stand up for a second, Chief Judge Bell. Everyone introduced themselves earlier. Thank you. I thought I would just talk to you about what's going on in Maryland. Because in a way, we are a living laboratory for the court leading a process that is out of the box, and that is working to develop a statewide plan. In Maryland, the thought was that an ideal plan really is a collaboratively developed plan. And Chief Judge Bell, a little over a year ago, put together a 40-member ADR Commission that very consciously included high level representatives of all the stakeholder interests in the future of ADR in Maryland. So, members include the Governor's Chief of Staff, the Attorney General, a state Senator, a state Delegate, the President of the State Bar Association, the Chief Judges from each level of the court system, community representatives, business representatives, mediation professionals and others. It's a very multi-disciplinary board, and the idea was to come together on plans to move ADR forward in the state, not just in the courts, but also in the schools, in neighborhoods, in the business community, in state government, in local government, in the criminal justice arena and in the juvenile justice arena. There are many members of the commission in the audience here. If I leave something out, let me know. We're working on all fronts, very much out of the box. We conducted a consensus building process around the state that started out with six committees involving about 135 people. The members of the commission worked in committees and recruited others to work with them. Then, we developed regional advisory boards of several hundred people each in Western Maryland, on the Eastern Shore, in Southern Maryland and in Central Maryland. So, we've had approximately 700 people involved in the process of developing our Practical Action Plan. A final draft Action Plan is on the table in the back. If you want to take a look at it, we would love to hear your feedback. There is also a pink sheet back there we are calling a "Plan-At-A-Glance," which summarizes the activities that we're going to do. So, we have spent a year and a half looking at what is already going on in Maryland, and with Nancy Rogers' help, looking at what is going on around the country. Then, we began developing plans to take action in all of these different arenas (schools, communities, courts, businesses, state and local governments and the criminal and juvenile (page 24) justice systems). We are very fortunate that we have been funded by the state to start projects in each of these arenas.[47] We are now at that turning point where we are moving from developing this Plan into the implementation phase of our work. It is a very exciting point of time for the Commission. One of the big challenges that we heard about all over the state was public awareness. People do not know what ADR is. If they do, they may well have some misconceptions about it and may not understand how it benefits them. So, one of the big priorities to come out of this process is a public awareness campaign which we are working with ad agencies to develop. And one of the terrific ideas, which was actually Lou Gieszl's[48] idea, who is in the audience, is to produce a segment with Arnold Schwarzenegger in which you see this horribly violent scene from "The Terminator," or some such movie. Then, Arnold Schwarzenegger steps out of the movie and says to the audience, imitating Arnold's accent, "This only happens in the movies. Or this only works in the movies. You know, in real life, we need to mediate." And so, we're going to try and make that commercial. But to do also a very big educational campaign to communicate on what this whole field is about. We're working with the school system; and the State Superintendent of Schools, Dr. Nancy Grasmick, is very much in favor of moving conflict resolution education and peer mediation forward in the state. She's agreed to co-sponsor a conference on ADR education with us. She also had us make a presentation to the state's Higher Education Commission about the importance of having teachers learn these skills. Teachers should be using conflict resolution skills in the classroom, modeling them for students. Another one of the big challenges that we know we face is creating an attitude shift. Many teachers now rule the classroom by exercising their authority. One might even say by intimidation, in some circumstances. Shifting them into the idea of sharing power with the students, by making the students responsible for resolving disruptions and disputes in the classroom requires an enormous attitude shift for some teachers. So, it is very important to train future teachers in conflict resolution. We received a great response from the Higher Education Commission. We are also conducting evaluation projects in the schools. We are evaluating an elementary/middle/high school feeder system that already has conflict resolution curricula and peer mediation programs, and are starting pilot programs in a feeder system that doesn't have either of these programs. (page 25) That has been a basic strategy of the Commission to start in each of these fields: To evaluate projects that appear successful pilot projects with built-in evaluation components. In the courts, we are evaluating some successful ADR programs in the courts and we are creating pilot projects. We will be using collaborative processes in three courts of general jurisdiction to design civil ADR programs currently. And, we're modeling them after Ohio's circuit rider project, which was very successful. The idea is to send a circuit rider, a facilitator, to three different jurisdictions to convene the bench, the bar, the practitioner community, the community leaders and others to help design a system that will really work in that location, serving the need of the local bench and the community at large. So, we're working on that, and we've gotten many requests from every region of the state, and from more courts than we can handle, to participate in pilot programs. There's been an amazing level of energy around this whole process, and a great desire to participate in the projects that we've come up with. In the criminal justice arena, for example, we have had requests from five States Attorneys, which I believe are called District Attorneys in other states. They are elected officials in Maryland. Five, who have no ADR programs at all, have contacted us, wanting to participate in pilot projects with us to develop mediation programs in their offices. Our Plan and our funding only contemplate on state's attorney pilot project. We also have a lot of desire to participate in juvenile mediation programs, and we are working on one, collaboratively, with our Governor's Office of Crime Control and Prevention. That office supports the "Hot Spots" strategy,[49] funds community crime control teams in high crime areas, and is interested in supporting the use of mediation in these "Hot Spots." Am I running out of time, Peter? MR. ADLER: Yes. MS. WOHL: Okay. I could go on and on about this forever. The ADR Commission is at an amazing point; starting things in many different directions under the leadership of the court. It's very exciting. MR. ADLER: Rachel, take another 20 seconds to tell us what that larger color picture is sitting, on the easel. MS. WOHL: This is our process map. The process that we have been through is a complicated, consensus-building process, which some people had trouble visualizing. They would scratch their heads and say, "Now, can you tell me again what we are doing?" So, we had a process map drawn to illustrate the Commission's process. The fact-finding process, the consensus building collaborative decision making process, the Action Plan development, and our current expansion into action all are illustrated here. And I can't go over all of the details, because I don't have time. (page 26) MR. ADLER: Right. MS. WOHL: But please, come and look at it when you get a chance. MR. ADLER: Terrific. Thank you. Okay. Here's our plan. We're at about 3:00. And we're going to go for about the next half-hour with some discussion. Then, we'll take a break and bring our second panel up. I really want to thank all of you for sticking with the time limits. I want to start this by posing something to you. Most of what you described were various centrifugal forces that are pulling you outside the courts, outside of where your starting points were, however small or big those were. Some of you described those centrifugal forces, as in Elizabeth's case, the need to build public support for ADR and the desire to be working outside the courts to build support, understanding and comprehension. Or, another example is out of the box requests that come in from a school superintendent or a systems superintendent. Or, the desire, naturally, to try and help outside the court system. Let's talk about the other side. One of the centripetal forces would be the obvious one -- money. You don't have enough time or resources. What are the other constraints that are saying, "No, don't do that? Stay inside the judiciary. Stay inside the court system." So, quick comments from each of you? MS. WOHL: I guess, you know that our Commission has tremendous support, including the Chief Judge's leadership, to work in all of these areas. He sees it as a part of the court's role to promote justice in the community and to help prevent things from ever getting to court. So, we have tremendous support to do that. But there are monetary constraints. And there may be factions within each field that would sooner maintain the status quo. MR. ADLER: Can we talk about those? There are obviously political constraints that happen. Some are within the judiciary, some are outside. What are the constraining forces that are saying, "No. Don't go outside the box?" MS. WOHL: We really have not heard them. MR. ADLER: Go ahead. MR. VAN EPPS: I think one is fear. Fear of change. Fear of really talking to people in the community. Judges are used to being all by themselves, making decisions all by themselves. (page 27) Lots of judges will, also, still maintain that I was elected to decide cases. You know, that's it. MR. ADLER: Eileen, then Dan. MS. PRUETT: I think that's true. But I also think that we're seeing some really legitimate questions. And this is what I meant when I said that every experiment, every monitoring project, every evaluation leads to something else. What happens - I don't know what's going to happen. But we have child protection cases. The same multi-disciplinary, collaborative processes that everybody else is experimenting with. We've been doing these cases for two years. The push that's coming to shove is that the agreements begin to look very non-legal. What happens in a closed adoption state, when there are open adoption provisions in the mediated agreement? The mediator is okay with it, because they don't have any control or authority. The parties are okay with it. The lawyers are okay with it. You have this multi-disciplinary collaborative process with this terrific agreement. And you have a judicial officer who says, "This is unenforceable. I'm really sorry, but I can't put that on the record. You're going to take me, me personally, my court, straight to the Court of Appeals on this when it doesn't work out." And we're exploring the ways to deal with that. But it's raised a whole host of questions about what is the appropriate role of the decision-maker? And is the culture of going to court going to change that much? I mean, this is really it for me. MR. ADLER: Okay. Everyone in the panel wants to jump in. Dan, you're next. Then Cindy. Then Elizabeth. MR. WEITZ: We get ten minutes, Peter? MR. ADLER: No way, brother. No way. MR. WEITZ: Just kidding. Actually, as I mentioned before, part of the irony in New York is that we're doing a lot of thinking "outside the box." It's more of stay out -- stay "out of the box" -- that is really what had gone on in New York up until now. Again, to highlight some of the things that I have already said. In our Family Court programs, for example, mediated custody and visitation disputes, the agreements would come back to a judge to review it, to approve parenting arrangements. I have heard stories that early on, an occasional agreement would get "thrown out" because the mediated language was unfamiliar to the court. It takes a huge educational investment to create an understanding of what the processes are about, for the bench, the bar and anyone who uses the programs. You have to invest resources into training people and getting them to experience it before you can really get to doing it -- to doing it right. (page 28) MR. ADLER: Cindy, then Elizabeth. MS. SAVAGE: I think the constraints come from two areas. One is narrow thinking on the part of some of the judiciary -- not all. There are some constraints from the response of the private sector that provides ADR services. And the resources are kind of a mixed bag. So, let me go back to the judicial thinking. There are two schools of thought that I have encountered among judges. One constraint response is, of course, judges should not be social workers. They should not engage in the unauthorized practice of social work, and should stick within the boundaries of just resolving cases. And that's really the biggest constraint that I see. I wouldn't say that's the majority in Colorado, but it does limit our ability to promote ADR in some of the judicial districts. The way Colorado's statute is set up, the parties have a choice between private sector providers or public sector providers, or my office. So, the field is wide open in terms of ADR providers. There is a fair amount of competition. And some people see the office of dispute resolution and think it should be limited, not only to court-connected cases, but to indigent cases as well. So, there's a force from the private sector that doesn't want to see us expand. And I've dealt with that by trying to work collaboratively with them. And I think that's been largely successful. But there's still that pressure there. The resources are a mixed bag because there are limited resources. In my opinion, that's a pressure. That can be as much of a pressure to expand outside of the box, as it is to stay inside the box. Because we have limited resources, it's important to maximize the resources we have. And why duplicate what my office does somewhere else? For example, with the community mediation centers, it makes more sense to join forces than to create some entirely separate area. So, I think the resources are kind of a mixed bag. MR. ADLER: Elizabeth? MS. KENT: I think that the constraining force is that there's so much to be done all over. Not just in the executive branch, but in the judiciary. We approached it in three phases. The first phase was start-up and implementation. The second phase was work in the judiciary, with the idea that you have to fix your home before you can go outside (and "preach" to other people). Now we're in the third phase, which is taking it outside of the judiciary. So, we're ready to move on. MR. ADLER: One more comment? (page 29) MS. SAVAGE: I just want to say that one of the constraints we face is the amount of sleep we need as ADR directors. MS. WOHL: I would also like to mention the bar. While there are many proponents of ADR within the bar, there's also still some resistance and a misunderstanding that ADR means cutting the baby. That is a very limited view of the process as compromise, rather than a creative win-win process. MR. ADLER: At this point, let's open it up. What I'd like to do is, see if we can get important questions posed to the panel. I want to especially begin with questions that will give you more information, as opposed to a comment that you want to make. The only ground rule in this is: please don't sneak a great big comment inside a small question. If there is a question here, now is the moment. Oh, state your name, please. MS. POPRICH: Ann Poprich. One person made mention that there is a very strong focus in their state not to look at the numbers resolution rates. For example, Dan, I believe you said that New York has a very heavy focus on that. I'd be interested in the panelists' comments about the dichotomy there and how you're looking at that and where you think that may go. MS. PRUETT: Well, even in our largest jurisdictions in Ohio, fortunately, we've had those awards and punishment for not having your numbers in order. For good or bad, our judges aren't interested in differentiated case management in Ohio. So, you don't have to worry about differentiated case management, when your population is only 30,000 in a given county, and you're not moving judges around and assigning judges, as I think New York is. So, that's not been a priority. I have found, and I can tell you that in very high volume courts, our programs do very well when I have followed the case flow management coordinator. We identify places in the court where mediation is appropriate. It wasn't a wholesale, take mediation and make it be your case management program. The approach was -- mediation may work here or here. Or, let's look at mediation as an "early and often" opportunity, particularly, for example, in high volume juvenile courts, where I believe there is not a single kind of conflict that can't benefit from some mediation. So, we partnered with the case flow people. Then, we lost our case flow management person. And we just hired another one. So, we've had four or five years where we've been going to well run courts and saying, we can give you 150 mediated cases a year. Let's see if they change the culture. And the way they're going to change the culture is for them not to be settlement conferences. For them not to be judicially conducted pre-trials. And that seems to be working. We see attorneys doing a better job of preparing for the mediation. The court treats the mediation as an important event. And as a trial lawyer, I know -- those of you who have been trial lawyers know -- events are what make cases move. But that doesn't mean that the nature of the event can't be facilitative. Now, does that also mean that they don't move to an (page 30) evaluative aspect on a straight dollars case? Maybe. But it also means that some of the evaluation data shows that even in "dollars only" cases, parties benefit from a facilitation process. MR. NURICK: Herbert Nurick. Can you elaborate on one quick point? You said something very intriguing. When you see settlement rates that start getting too high, do you have a sense that agreements are being coerced? MS. PRUETT: Did I say that? MR. ADLER: Something like that. MS. PRUETT: How am I going to deal with that when that's on the web? I would be concerned if that would ever happen. But of course, it never has. MR. ADLER: If it did happen, what would you do about it? MS. PRUETT: The concern is that when agreement rates get really high, attorneys and the mediator may be forcing agreements on the parties. There may not be enough input from the parties. There may not be enough party control. There may be too much judicial control. Is there a word being said in the hallway, or across a lunch table, that says, "Boy, this is a really crappy one? Let's get this one off the docket." What we do is look at the exit surveys. And we have a question that says: Did you get enough opportunity to participate in the decision making process? Did you get to say what you wanted to say? And where we've asked those questions and people felt that they haven't had enough opportunity to say what they wanted to say, we've been able to go back to the mediator. And we deal with it that way. MR. ADLER: I want to see if anybody's got the opposite kind of concern or point of view. Dan, you talked about the conflict between the need for speed and the theology of ADR? MR. WEITZ: I'm going to try. MR. ADLER: Any comments on the New York experience? MR. WEITZ: Sure. MR. ADLER: Please. MR. WEITZ: I think that the emphasis on settlement rates in the court-annexed programs in New York is not there by design. It's certainly not a policy. You have to remember that while we have had community mediation programs since 1981 and an office to oversee that, my office was just created in January of 1998. We don't necessarily do things, at least not with regard to ADR in New York, from the top down. It's been developed on a thousand flowers-boom approach, in many ways. The irony, again, was that ADR and the value of utility of mediation was sort of put in a box.(page 31) It's good, and it works for those kinds of cases. For example, it works in cases where people are without money or for inter-personal disputes. In order for ADR to prove itself, to be used for big commercial cases, personal injury cases and even matrimonial cases, it had to settle cases first, before it would be given the opportunity. So, I think it sort of grew out of proving itself. Fortunately, we're at the point now where we've proven that. We all knew we would. Instead, we can focus more on quality programs. MR. FARRELL: Tom Farrell. Several speakers have alluded to the conflict between values of court mediation and values of mediation that we might all hold dear. I'm interested in the panel's thoughts on this. I'm always, frankly, surprised when I hear or read references to that and to references of people who are worrying about whether court mediation distorts mediation. I frankly resist that notion. I know that's a comment. I'd be interested in hearing the panelists' thoughts on whether in their experience, or whether the perception in their state is that court mediation is somehow a different animal, is somehow incompatible with the goals of mediation. MR. ADLER: Let's find out. Rachel and Doug, I want to start with you. Does court mediation, as it gets practiced and inserted in the court system, distort the kind of values that we think are implicit in mediation? MS. WOHL: Well, there's been a tremendous amount of discussion around this. On our Commission, there are people who practice what they call "transformative" mediation. There are people who practice "facilitative" mediation and there are people who are "evaluative" mediators. There are court programs in the state that do a high volume of settlement conferences, which are very evaluative processes. The professional community complained about using the term mediation to describe settlement conferences. In response, the court changed its language to simply call it an "ADR" program. People there who were called mediators are now called "ADR facilitators" because the process is so highly evaluative. There are real concerns about how the term "mediation" is used, and about how the Commission proceeds in its projects with the courts to develop mediation programs with high quality practice. MR. ADLER: Doug, what is the Michigan experience on this? MR. VAN EPPS: I think if anything, it's been very positive. We have not had a long history of holistic or facilitative mediation in Michigan, and a lot of the expertise going into the courts is through the community mediation program. We've also had a long history of evaluative processes. It's actually non-binding case evaluation with penalties; it's called Michigan Mediation.50 (page 32) The Michigan Supreme Court Dispute Resolution Task Force has recommended that the name of the process be changed to "case evaluation," and I expect that this will happen in the near future. I think if anything, the fact that we've implemented quality community mediation has helped educate constituents that there is a good process in place and that will be spread throughout the courts. MR. ADLER: Cindy and Elizabeth? Any different views on this? MS. SAVAGE: I don't think that court-annexed mediation has distorted the processing in Colorado. I do think there are pressures from lack of resources that make it less distorted - people can't take as much advantage of the process, because they have to pay for the mediation. If they can't afford it, they have to worry about how much it's going to cost. And they may spend - they may end up spending less time in mediation than would be useful, particularly if it's mandated. Some of them come in - the parties come in with some resistance sometimes. But I don't think that the court annexation in itself distorts the process. Part of the reason for that is that we select all of the mediators either through the central office, or through our outlying offices. And so we have some quality control over the choice of mediators. This ties into the issue, of course, as Diane said, of how you measure. Do you look at settlement rates or not? I don't think it's any different for the court than any other mediation program. Almost everybody looks at settlement rates, because their funders look at settlement rates. So, you're forced to do that to some extent. And the trick is to try to also build in quality and emphasize quality. We're trying to do that in Colorado. The new budget process I mentioned has this - set performance measures. And we had to look at the dispute resolution program. How are we going to do this? The obvious one is settlement rates. Or one obvious one, because it's something you can quantify. But we're also looking at building in a measure of customer satisfaction, which we'll get from customer surveys. So, hopefully, this will help us build in the quality aspect as well. MR. ADLER: Elizabeth, do you want to comment on this? MS. KENT: Following up on Cindy's comments, it goes to program goals. That ties in with your question about settlement rates and the tension there. If your program's goal is to provide a quality alternative so that people can consider an alternative to (page 33) going to litigation, then the settlement rate isn't as important as it is if the program goal is settlement of cases. Your question ties in with my concern about education about expectations for the process. If parties have the right expectations about what they're going into, then I don't think that court-annexed mediation processes really change the mediation values or mediation processes. But parties can't go to a small claims mediation where they will have a 20 minute process before small claims court starts, and expect that they're going to have a facilitative mediation that is interest-based. You just can't get that in 20 minutes! As long as the parties know that, and they know what to expect, then I think it's not problematic. MR. ADLER: Let's pick up some other questions. Lisa and Lee? MS. BINGHAM: Sorry. MR. ADLER: Read your name into the record. MS. BINGHAM: Hi. Lisa Bingham from Indiana. My question is on the subject of settlement rates. Have any of the folks at the front of the room tried to measure recurrence? In other words, looking at people coming into the court system repeatedly when they go into the ADR versus people going into the traditional litigation path. MS. PRUETT: Yes, we've looked at that. And I think that's one of the reasons that we're putting our institutional dollars into civil cases. That is because cases that do settle in the civil context have a certain amount of finality. So, you can look at scrunching it. If you're doing it quickly and you're saving resources that way, then you're saving on other things. And we've looked at motions. We've looked at how much discovery has been done when the case goes to mediation. And we need to refine those questions. But what we think we see is that civil cases do well if some, but not all, discovery is done. We see as the change in the culture monitoring component that the mediators are telling us that the attorneys are actually scheduling second sessions in order to save their clients' money by completing final depositions of experts or finalizing accident reconstruction models. And in the family area, one of the strongest arguments for child protection mediation is that mediated agreements, even if they're only partial agreements, send limited issues to trial and seem to forestall appeals, which are the exact opposite of permanency. These were, in some of our larger juvenile courts, cases that had high rates of appeal. And that seems to be a very big and telling piece in the research. So, yes, we've looked at it. MR. ADLER: I presume you're using "scrunching" in its legal and sociological sense. Cindy? (page 34) MS. SAVAGE: Just briefly. The National Center for State Courts is conducting an evaluation of our multi-courthouse program in our 18th judicial district. And they're still in the process of designing the actual evaluation, but I'm hoping to get some data on that. MR. ADLER: We're going to be hearing from the researchers in a few minutes. They may be able to shed some light on this too. Other questions? Yes. MS. SNEFT: I'm Louise Phipps Sneft[51]. Welcome to Baltimore. It's my home. I have a question for the panelists. Those of you who mentioned that you're experiencing or honoring the shift from looking at just settlement rates to something that's more relational, I'm wondering if you've given any thought with your programs as to how to produce those kinds of outcomes that are more relational or qualitative, rather than just settlement? MR. ADLER: So, how do you actually go about implementing that? MS. SNEFT: Yes. MR. ADLER: And achieving that? MS. SNEFT: Yes. MR. ADLER: Comments? Yes. Dan, then Doug. MR. WEITZ: In New York, we have recently started to talk about -- I think its what Cindy mentioned - performance-based criteria for funding in some of our programs. Many of us in the field certainly worry about whether this works very well, particularly with mediation. What we have tried to emphasize is tying these performance-based criteria to getting parties to the table rather than settlement rates. We trust that if you get people the table, you will get the by-product of a settlement. MR. ADLER: Doug? MR. VAN EPPS: I guess using my prior jargon in terms of looking for a lens, we try to identify everybody's interests. In the case type earlier mentioned - permanency planning - what interests do the family and dependent's agency have? What is the prosecutor's interest? What is the guardian's interest? It's identifying those common interests that brings people to the table. Is it saving time? Is it saving money? Is it finding a more permanent solution for the child? Is it finding a case management plan? We're finding that this works in our special education mediation as well as just identifying what all these different stakeholders in the conflict have, this gives them something common to talk about and look at. MR. ADLER: Elizabeth? MS. KENT: Just briefly. It's also a question of training the neutral. (page 35) MS. PRUETT: I want to acknowledge, first of all, the Ohio Commission on Dispute Resolution, because I have the easiest job of anybody on the panel. I have a commission that also has a staff, and they work with the schools. And although we get into the schools, my job is easier. I think it's not just education of the neutrals. I think that one of the reasons we're where we are in Ohio is that from 1990 to 1994 or 1995, we had very limited funds. And we were able to call on neutrals and academics and people in the field from around the state, to train, train, train. And that was our motto. If you feed them, they will come. We fed the lawyers lunches. We fed the social workers breakfast. We did 40-hour trainings. We did 16-hour trainings. We trained, trained, trained. And we continue to do that. And I think we don't have the tension between the private practice. In fact, I think it would be closer for Diane to say that in Ohio, if you want an evaluative mediator, you're prepared to pay big bucks to a retired Judge. Because they're only good at that. So, the tension with the bar is not there, because they've been coming to the table to be trained and fed for years. MR. ADLER: Other questions? MR. FARRELL: Tom Farrell from New Jersey. Are any of you from states that utilize approved rosters with mediators? Approved by the court? My question is, do you allow for them to charge a market rate or are they required to only charge a specific fee set by the court? Also, are they required, if they're on a roster, to provide pro bono hours? Any particular number of pro bono hours before they then start to charge? MR. ADLER: Dan, then Elizabeth, then Cindy. Go ahead. MR. WEITZ: In New York, the court-approved rosters outside the community programs are assembled at the local level. The answer to your question is easy. We don't allow them to charge at all. Right now, in court annexed ADR in New York, all the mediators serve voluntarily. In exchange for their pro bono service, we often conduct the necessary training at no cost to them. They just have to agree to serve at least two or three times a year. We allow the possibility of charging after that but it rarely happens since the parties can always select another neutral from the roster who has not already satisfied the pro bono requirement. MR. ADLER: Elizabeth, I wanted you to say something about why you've abandoned the rostering process, at least for some kind of cases. I think that would be valuable for this meeting. MS. KENT: Because we don't like them (joke!). Because they cause a lot of problems. I said I was from a small state. That makes it much easier. We have a pretty sophisticated bar. We have a pretty sophisticated population. (page 36) When the office started, we did have a panel, even though we didn't have a big private ADR provider sector. When we needed to build it up, having a panel was the first phase of the program. Later there wasn't as much of a need for it, but it was a burden on our office to run the panel. In addition to that, there are all sorts of policy questions and problems about who is on the roster, and how you get on. As we looked at it, and we looked at the change in the market, we thought this is better because we have very limited resources to concentrate on building the infrastructure. Since we have the sophisticated population, I think that parties' needs are met without our office maintaining a roster or panel. MR. ADLER: Cindy, then Eileen. Then we're going to bring this to a close. MS. SAVAGE: I don't call it a roster. I suppose it's more like a panel. What we do in Colorado is contract with a limited number of private mediators to offer their services on behalf of our office. People are constantly calling me to try to get on the roster. They call it a roster. They call it a list. And there's a perception that you just have to meet minimum qualifications to get on a list. But that's not how it works. We put our mediators through an interview process and role-playing. And so we just have a limited number. But we have a lot of the problems that Elizabeth mentioned. We do require parties -- or require the mediators -- to charge our rates. And basically the parties pay us, and we then pay the mediator, because our funding comes from those fees also. So, they are required to follow our fee structure. And the statute provides that parties pay a fee that's approved by the Chief Justice, and that's set at a reasonable level to run the program. MS. KENT: Can I just say one more thing? When we had a panel, there was fee structure. I thought it was strange that if they came to our program, parties would pay the neutral, let's say $150 an hour. Yet, if they had not gone through the program and instead directly contracted with the same neutral, the neutral might charge $200 an hour. It seems like a conflict with the private sector. Going back to my first point. I trust the parties and I trust that they're going to choose the right person. I think putting the responsibility on them to find the person and to make sure that that person is going to meet their needs is useful. It goes back to expectations. It empowers them to choose the type of process and the type of neutral that's going to work for them when the parties work together to make the process decisions. They are then more likely to get an agreement about what type of process to use. MR. ADLER: Okay. Great discussion. MS. PRUETT: Very quickly. We were asked about a roster early on. And there were two reasons that the Supreme Court didn't participate in developing a roster system. One is that (page 37) we didn't want to limit who could mediate. We knew we were getting great services from non-lawyers. And our Supreme Court doesn't have the authority to regulate anybody but lawyers. Secondly, we didn't know what made a good mediator, so how would we make any decisions? We review that regularly. We still don't know that any academic credential or something else will get us a better outcome. So, we're not going to touch it. We do have local rostering because of the way our domestic relations mediation statute was set up. It limits what the court mediators on the roster can do. They can mediate parenting agreements. So, there's not a huge rush for people to make tons of money by being on a local court roster. And almost all of the juvenile and family court mediation that occurs in our state, where people aren't paying big bucks for a whole divorce mediation outside of the court context, is parenting mediation in the juvenile, unmarried parent context, or the divorcing parent context. They're paying sliding fee scale. People are doing it for a stipend, via a contract, or as pro bono service. MS. SAVAGE: Just to clarify that Colorado's panel is not an exclusive panel, parties have a choice between the private sector and our panel. And I do think there's one advantage of having a panel of some sort. There is some provision of low fee mediation. So, some low fee mediation is assured. MR. ADLER: Thanks. MS. WOHL: Under the Maryland ADR Circuit Court Rules,[52] which were effective as of January 1, 1999, the local courts do keep rosters of approved mediators. If you use a mediator from the list, they're limited by and large to $150 per hour typically split by the parties. People also have the option to choose whomever they would like if both parties agree. MR. ADLER: Okay. We are at break point. Let's come back in 20 minutes, and then we'll hear from the researchers. SECOND PANEL: MR. ADLER: Our second panel will feature Nancy Welsh, Donna Stienstra and Josh Stulberg. Margaret Shaw was not able to make it today but her remarks will be published by the Cardozo Online Journal of Conflict Resolution after the last panelist's presentation. We've had some very interesting negotiations going on up here. It started with Josh, who wanted to go last and one of the other panelists who wanted to go first. And since Margaret isn't here, Josh asked, "Well, do I get her ten minutes." The answer is "no." The same ground rules are in effect. I'm going to ask each of you to take eight minutes. We'll let it slip over a little bit. Dick Gross is going to be our clock keeper on this. Let me just say one other thing. Each of the panelists came today with some prepared comments. The questions are about the program and relate to what we have learned out of the first, and in some cases, second generations of court programs. What works and doesn't work? How (page 38) has a multi-door courthouse model fared? What are the incentives to engage parties and judges in ADR processes? What does the research tell us about what state and federal court systems should be doing? So, that's what our second panel is going to discuss. But before we do that, I want to really see questions to researchers rising to the top. I want to hear the audience ask the following types of questions to the researchers: Does it save money? What else would you love to hear as responses from the researchers? For example, mandated versus voluntary coming to the table is one important issue. Research programs? Expectations versus results. Delivery and the outcomes. Nancy's going to lead off. She's going to use the overhead. And Nancy, you have ten minutes. And then, we'll hear from Donna, and then Josh. MS. WELSH: There's a certain irony in the fact that I am presenting. I am now in Pennsylvania, but I'm going to present on research that was done in Minnesota. And I want to add that I was not the researcher. Professor Bobbi McAdoo, at the University of Missouri at Columbia, was really the primary researcher who generated this data. The research was undertaken in order to allow the ADR Review Board of Minnesota, of which I was a member, to evaluate the effect of Rule 11453 on the practice of law in Minnesota, and the effect of that rule on the practice of mediation, within the courts in Minnesota. I think in order to be able to share the data, I need to give you a little bit of background about Minnesota's system. There is a key rule[54] and a key statute[55] involved in Minnesota's approach. And I need you to think in terms of carrot and stick. The statute enabled judges to order civil cases into non-binding ADR processes. This is the stick in the carrot and the stick approach. The rule was adopted after the deliberations of many committees, task forces, et cetera. And those committees and task forces recommended that rather than just having the judge order parties into a process, attorneys and clients should be given a chance to advise the judge on whether ADR was appropriate, in a particular case, which ADR process was appropriate and who should serve as the neutral. In response, Rule 114 was promulgated by the Minnesota Supreme Court. It became effective in 1994. It required that within 60 days of the filing of an action, the attorneys would be required to inform their clients about ADR options, consult with opposing counsel on the appropriateness of ADR, and report to the court on whether or not they thought ADR would be appropriate, which process would be appropriate, and within what time frame. That was the carrot in the carrot and stick approach. This was the period where the attorneys and clients had the opportunity to be creative and to determine whether ADR would be used, and how it would be used. This is neither a voluntary ADR system, nor a mandatory ADR system. It's a mandatory consideration system. In addition, in Minnesota's (page 39)system, there were nine different processes that were available to attorneys and clients. Mediation certainly was among them. But also listed were mini-trial, early neutral evaluation, moderated settlement conference, non-binding arbitration, binding arbitration, private trial, and of course, the catch all category, other. That was also part of the carrot, the creative part of the rule. In terms of background regarding mediation, the kind of training that was received by people who served as mediators was facilitative mediation training. It was also decided that people didn't have to be attorneys in order to be mediators within Minnesota's system. Non attorneys - people of other professions - besides attorneys - were able to be mediators, as well. Finally, it was decided that the courts were not going to be paying for these ADR neutrals. Instead, it would be up to the parties to pay for the neutrals. The neutrals would be permitted to charge market rates. The rule now says that those rates have to be reasonable. But I have no evidence that anyone has ever claimed that a rate was not reasonable. And they vary dramatically. If any of you are interested in more details about Minnesota's system, I do have some copies of an article that Bobbi McAdoo and I wrote.[56] And I'd be happy to share that with you. Okay, now. About two years ago, Professor McAdoo, who I will probably call Bobbi throughout this presentation, began research looking at the effect of Rule 114 on the practice of law, and on the practice of mediation. She conducted qualitative interviews with many attorneys around the state. And she also collected quantitative date. A survey was sent to a thousand attorneys around the state who are litigators of civil cases. The numbers of attorneys receiving this survey was proportional to the civil caseload in each district. There was an incredible response rate. Nearly 75% of the attorneys who received this survey sent it back in. So, the data is substantiated. I have brought the overheads showing, I think, the successes in Minnesota, and areas for improvement, based on the data that was gathered in this research and on the recommendations that were reached by the ADR Review Board. So, what were the successes? First: Mandatory consideration works. Minnesota learned from the experience in other states, which had found that voluntary systems, although they were loved, were not used and that mandatory systems, although they were used, weren't necessarily customized to the needs of particular cases. We found that in Minnesota, if the attorneys met and agreed that ADR was not appropriate, for the vast majority of cases, a judge did not then order the parties into ADR. Even though the judge had that authority under statute, only 11% of the attorneys responding to the survey indicated a judge used it. The judges listened to the input provided by the attorneys. If the attorneys disagreed about whether ADR was appropriate, one of them thought it was appropriate and one thought it wasn't, the judge listened to the attorneys who thought (page 40) ADR was appropriate. And 51% of the attorneys reported that in this situation, the court would order them into ADR. This result was much more pronounced in the metropolitan areas, Minneapolis and St. Paul, than in the rural areas, probably because of docket concerns. Second: The use of ADR increased very substantially as a result of Rule 114. Seventy-eight percent of the responding attorneys estimated that they were using ADR more in their civil -- and that's non-family cases -- once Rule 114 became effective. The data also suggests that among the various processes that were available under Rule 114, mediation certainly had been institutionalized. Eighty-four percent of the responding attorneys replied that they used mediation often, or sometimes in their civil practice after the advent of Rule 114. Only 48% reported that they had ever used mediation often or sometimes prior to rule 114. Importantly, though, I have not said ADR has been institutionalized. It's mediation that has been institutionalized. The mandatory consideration approach has led to tremendous lawyer support for continued use of ADR, with 92% of the attorneys saying that they would continue to use ADR, even if Rule 114 was repealed. So, these are tremendous successes. Let's go to the next overhead. The data also suggests that the mediation process that is being used in the courts in Minnesota does include facilitative, client-oriented elements, with 79% of the responding attorneys indicating that mediators always or frequently encourage clients to participate, and very frequently or always help parties to communicate effectively. This is the good news. Mandatory consideration works. What I think of as coerced education of attorneys works. As a result of this coerced education, attorneys have institutionalized an alternative. And this process permits customization to the needs of each particular case. Now, to the areas for improvement. We talked earlier today about the time and cost savings that can be achieved through the use of ADR. In the data that Professor McAdoo received, lawyers, who were asked their perceptions about whether they had been able to achieve time and cost savings, generally indicated that they thought that ADR did save litigation expenses. It saved time, saved money, and caused earlier settlements. But, lawyers' discovery practices -- the place where most of the time and money is spent in litigation -- remained virtually unchanged. Because of the limits of time, I'm not going to spend any time talking about another area of concern regarding the timing of lawyers' input ADR. Perhaps we scheduled the time to make the choice of ADR too early, based on the data results. Let's go to the next overhead. This is the overhead that concerns me the most. The successful institutionalization of mediation may have come at a price. Although I've said that elements of the facilitative model appear to be institutionalized, elements of the evaluative,(page 41) settlement-oriented model of mediation also are being institutionalized. Notice that the most important qualification for mediators according to the attorneys -- who for the most part, are selecting them -- is that the mediator have substantive experience in the field of law, related to the case. They also thought --although not in as substantial numbers -- that the mediator ought to be a lawyer and ought to be a litigator. They also were asked whether training made any difference at all in the mediator, and the answer was, "no." The top factors motivating lawyers' choice of mediation are settlement-oriented. When the lawyers are thinking about whether to choose mediation, they choose it because they believe it saves expenses, makes settlement more likely, and is a reality check for opposing counsel's client and their own client. Lawyers rarely appear to be motivated by the sorts of elements of mediation that led many of us to get into it in the first place. They're rarely motivated by the increased potential for creative solutions, preservation of parties' relationships, or evidence that their clients like mediation. Also, few attorneys reported that mediation had the effect of either providing greater client satisfaction or providing greater client control. It doesn't mean it didn't happen. It's just that they didn't perceive it. You can also see that it appears that other potentially more appropriate ADR processes are not being institutionalized. Mediation was the big winner in Rule 114. Although other processes are being used more too, not nearly as much. I have one last overhead. We're not going to talk about the top item. Only the bottom item. The data -- or I should say, the lack of data -- led the ADR Review Board to recommend that Minnesota regularly collect and analyze data, which is not regularly being collected and analyzed now. Evaluation is difficult without data. The last thing I want to say relates to the question, "How do you institutionalize a quality program?" In answering this question, I think you have to decide what is quality, particularly as to mediation. Do you care whether it includes the facilitative elements? If you do, then there's a need to foster that, because otherwise, the evaluative elements will be those that come to the fore as the process adapts to the courts. MR. ADLER: Terrific. Thank you, Nancy. Now, I noticed that you were about three minutes over, so we'll take it off Josh's time. MS. WELSH: I'm sorry. See, I was turning this way on purpose. MR. ADLER: It's a constant negotiation with Josh. MS. STIENSTRA: Okay. I want to do two things. And given the time constraints, I'm probably going to do only one. I'd like to talk first about findings from some research I conducted in the federal courts. And then, I'd like to talk a little bit about where research should go, might go, maybe sometimes (page 42)can't go, now that we have several years of ADR experience in the courts and a number of research projects behind us. Let me set the context, just a little bit, for what I'm going to say. First of all, I am talking about research that was done in the federal courts. Not always can federal court ADR research be extrapolated directly to the state courts. But in this case, the research was done in civil litigation, so to the extent that it can be generalized to the state courts, it's not the family courts and it's not the small claims courts. It would be general civil litigation. There was some research in the 1980's on arbitration programs.[57] Those were the first kinds of ADR programs established in the federal courts, and some of the early research done on ADR in court settings was done in arbitration. In both the state courts and in the federal courts, that research tended to show that there were no cost savings. There were no time savings. But there was high litigant satisfaction in using arbitration programs. Then, in 1990, Congress passed an act requiring all the federal district courts, the trial courts, to design cost and delay reduction plans.58 Congress' concern was that litigation in federal courts was too costly and that it took too long. So all the district courts were instructed to design and create cost and delay reduction plans, and to consider using six case management principles to reduce cost and delay in litigation. The sixth of those principles was ADR, and it was with this statute that we really saw the use of ADR take off in the federal courts. This development came, really, through advisory boards of attorneys and other users of the federal courts. In creating the cost and delay reduction plans, the courts were instructed to work with advisory groups. And it is really from the reports of those advisory groups that the push came to use ADR in the federal courts, and to use mediation in particular. The statute also created five courts as demonstration projects and ten courts as pilot projects.[59] Many of you have heard of the study done by the Rand Corporation of the ten pilot courts.60 That was done under the Civil Justice Reform Act.61 Less known are the five courts that served as demonstration districts under that act. Three of them were demonstration projects for ADR. Stephanie Smith is here from California. At that time, she was the director of the ADR program of the Northern District of California, one of the three ADR demonstration districts. I want to talk about the research we did at the Federal Judicial Center of the three ADR demonstration districts.[62] They were the Northern District of California, where the court adopted a multi-option ADR program, offering a variety of ADR options to litigants in that court. The use of ADR was "presumptively mandatory," in other words, not quite mandatory and not quite voluntary. The court presumes that litigants in civil cases in that court will use ADR. The choice of what form of ADR they use is at the discretion of the litigants. (page 43) The second court was the Western District of Missouri in Kansas City. That court adopted an Early Assessment Program where all litigants in a randomly selected group of cases were required to come to the court 30 days after answer was filed to talk with the Early Assessment Program director, who would help them determine what type of ADR would be most suitable for their case. As it turns out, the ADR program administrator, or the Early Assessment Program administrator, was a very experienced litigator and mediator in Kansas City, who the court had wisely hired because he was very experienced and respected.63 And almost all parties ended up mediating with him on the spot when they came in for that first conference. The third court, a much, much smaller court than the first two - the Northern District of West Virginia - has a long standing settlement week program. It takes place three times a year. Cases that are ready for trial are mandatorily referred to the settlement week program, which occurs over a week or two of time, and mediators from the community assist the parties in trying to resolve the cases. Okay. What findings stand out for me from our study of these three districts? The first is that the culture within which a court designs and enacts its ADR programs matters a great deal for its success. And that's not a surprise. Ever since Frank Church coined the term "local legal culture," we have known - and perhaps even before the words existed - that, indeed, the culture matters a lot.64 I want to illustrate it, though, with a particular finding from two of the demonstration districts. We asked in all of the courts, "Was ADR used at an appropriate time in this case?" In the Western District of Missouri, where cases were referred to ADR 30 days after answer, very early in the case, 11% of the attorneys said, in response to that question, that ADR occurred too early. That's very early in the litigation. And only 11% said it occurred too early in the case. In the Northern District of West Virginia, where cases are referred to ADR after discovery is complete and just before trial, 21% of the attorneys said ADR occurred too early in the litigation. Perhaps they were saying it's never appropriate. But in any case, 21% of the attorneys, before they thought it was useful for them to have gone to ADR or to mediation in this court, were clearly waiting for something else to happen. We can see from these findings that what the expectations are and what the culture is, matters a lot for the success of an ADR program. And when designing an ADR program, that culture needs to be known and understood. A second important finding from our study is that mandatory referral is not an issue - at least it wasn't in these three districts. In all three districts, cases were mandatorily referred to the court's ADR programs. Yet, the great majority of the attorneys -- I should clarify that we surveyed attorneys using questionnaires. We ended up not surveying litigants, though we intended to, because their names, but not their addresses, are recorded on court dockets. We needed to go through the attorneys to get the litigant names and addresses, and only about (page 44) 1% of the attorneys completed the forms to give us addresses. So, we did not survey the litigants. The great majority of the attorneys who responded said that the programs were fair, that they were satisfied, and that the programs should continue. And these were in mandatory referral ADR programs. So, mandatory referral seems not to affect how the attorneys valued these programs. We did find, though, in the Northern District of California, an interesting result. That is, that attorneys were more satisfied if they could choose their ADR process. As I said, the court set up a multi-option ADR program: the attorneys were expected to use ADR, but they could choose the form they were going to use. We found that when attorneys were permitted to make that choice, they evaluated the program more positively. They were more likely to say they were satisfied. They were more likely to settle. There were fewer motions. There was less discovery and lower estimates of cost when the attorneys could choose their ADR process. I should make it clear that in this court there were some attorneys who were not permitted to choose, but rather had to use the ADR process assigned by the court. So we had sort of a control group to test this against. We also asked in our study, "In what way did ADR help?" We found that the majority of attorneys said - and I'm talking about 2/3 to 3/4 of the attorneys - that the way in which the program was most helpful was in moving the case towards settlement. We see here an orientation on the part of attorneys toward court-based ADR. I think their expectation is that the purpose of these programs is settlement. And the programs are given higher marks when, in fact, they have that result. We found that where a case settles, attorneys are more likely to see positive effects from the program. They are more likely to say it reduced time and cost. They're more likely to be satisfied with the outcome. So, settlement seems to be a key factor here that divides between satisfaction and less satisfaction with the ADR programs. The attorneys also value these programs for encouraging the parties to be more realistic about their case, for allowing parties to become more involved in resolving the case, and for allowing the parties to tell their story. We also found that the quality of the neutral is related to perceptions of ADR's effectiveness. Where the attorneys rated the neutral as fair, highly qualified, not forcing settlement, and so forth, they were more likely to say that disposition time was reduced, that litigation costs were reduced, that they were satisfied, and that the process was fair. Cost and time, of course, were the issues in this legislation. Reducing both cost and delay is what Congress