Excerpts:
The Mediation Program of the United States District Court
for the District of Columbia
By John Bickerman
District of Columbia Superior Court,
Multi-Door Dispute Resolution Division
By Divonne Smoyer
Introduction: An Overview
By Edward J. Bergman
Court-annexed mediation, in a bewildering array of forms, is now part of the landscape in both our state and federal systems. The essays comprising this volume describe and analyze examples of extant state or federal programs reflecting a wide range of approaches. But the diversity represented here far from exhausts the current range of program designs and modes of implementation.
One might presume from its widespread use that the concept of court-annexed mediation would be universally embraced. Yet, Jerold S. Auerbach in his trenchant commentary on dispute resolution alternatives in the context of Twentieth Century American society laments:
A movement toward substantive justice, outside the procedural norms of the legal system, has quickly evolved into a movement for procedural reform of the legal system. Auerbach, Justice Without Law?, Oxford Univ. Press (1983), p. 14
..In this century, the communitarian search for justice without law has deteriorated beyond recognition into a stunted off-shoot of the legal system. Auerbach, p. 15
..It is an ominous portent when lawyers and judges become the most conspicuous and outspoken proponents of alternatives. Auerbach, p. 146
Auerbach's concerns are real and suggest that the problems and tensions elucidated by the contributors to this volume may be intrinsic to an attempt at fusing an "alternative" process with the system it was intended to avoid. This anomaly does not change the fact that court-annexed mediation is a major trend within the American legal system and is unlikely to disappear or even diminish. As of 1996, approximately half of the states had court-annexed mediation programs in effect. Similarly, over half the ninety-four federal district courts have mediation programs.
While court-annexed mediation may be cooperative, with negative implications, it is unlikely that the takeover was motivated by malign intentions, conscious or otherwise. From certain perspectives this development appears inevitable. Dissatisfaction with the court system has a long and honorable history and, for purposes of this discussion, can at least be dated to the Pound Conference in 1976. The conference itself was named for a remarkable address by Dean Roscoe Pound on "The Causes of Popular Dissatisfaction with the Administration of Justice," St. Paul, Minnesota, August 29, 1906. By 1976, Frank Sander had already outlined the kind of flexible dispute resolution center later to become known as the "Multi-door Courthouse."
Recent scholarship suggests that dispute processing in Anglo-Saxon England incorporated mechanisms analogous to arbitration and mediation in a manner similar to the "Multi-door Courthouse" proposed by Sander.
As the sheer number of filings in both federal and state systems increases, and as the nature of legal disputes becomes more complex and technical, often involving a multitude of parties, the timing and methodologies for achieving settlement constitute critical concerns. The cry for experimentation and the internalization of ADR processes within the traditional system appears to be motivated primarily by efficiency concerns, e.g., the elimination of congested dockets and cost or time savings, rather than quality of process and humanistic goals embraced by the broader alternative dispute resolution movement. Again, we are confronted by powerful sources of tension surrounding the development of court-based mediation programs.
Modification of the Federal Rules of Civil Procedure in 1983 to authorize use of extra-judicial procedures, creation of task forces and committees at the state level to examine the use of litigation alternatives, and passage of the Civil Justice Reform Act of 1990, requiring all district courts to develop, with an advisory group, plans to reduce cost and delay in civil litigation, all catalyzed and spawned court-annexed ADR programs including, and often featuring, mediation. The programs examined in this study cover dates of inception ranging from Michigan Mediation in the State Courts established statewide in 1980, to the U.S. District Court, District of New Jersey Pilot Program and Western District of Missouri Early Assessment Program, both commencing in early 1992.
The temptation to view problems encountered in the development of court-annexed mediation programs as a morality play is seductive. Realistically, there are no good guys and bad guys. As in most complex public policy matters, competing philosophies, historic norms, economic strictures, seemingly incompatible interests and diverse constituencies portend a long and, at times, tortured evolution. Judges, quite naturally, tend to perceive the courts and adjudication as the center of a universe in which alternative approaches are adjunctive and complementary. The judge's mandate is, after all, to adjudicate or resolve justiciable controversies in which litigants have instituted suit. Judges are not charged with determining how or why disputes occur, how to prevent them or how best to achieve generic social harmony. Non-judicial ADR proponents tend to operate within a larger dispute resolution universe in which adjudication is but one of an increasing number of options, many of which appear more attractive, much of the time, than the traditional adversarial system. Thus, predictably, the pace at which resources are allocated and primacy accorded to alternative mechanisms is, to their proponents, indicative of myopia, or worse, territorial behavior. Judges tend not to fully appreciate, for reasons already noted, the importance of creating a cadre of professional mediators, the significance of adequate mediator compensation for achieving that goal and for preventing the devaluation of mediator expertise relative to other areas of legal specialization.
While both prominent and anonymous private providers of mediation services exist independent of the courts, the influence of court-based programs on mediation's ultimate potential as a dispute resolution mechanism is enormous given the number of disputants whose introduction to mediation derives from such programs. In addition, the prospective magnitude of court-annexed mediation programs can create a catalyst, if not a forum for, mediation training and credentialing. Court-annexed programs present an opportunity for both lawyer education and public education regarding the nature and benefits of the mediation process. The extent to which such potential has been realized can be extrapolated from many of the essays that follow.
The essays in this volume present material which can help assess the likelihood of a cadre of mediators emerging from the programs investigated. They begin with the premise that court- annexed mediation is a fact of life. Each is intended to create a sense of how a particular program is structured and implemented, highlighting strengths and weaknesses. Because these programs are dynamic rather than fixed and, in light of their widely divergent characteristics, the editors determined, at the outset, to present pieces that are predominantly narrative and subjective rather than statistical. They incorporate the impressions of those who administer, implement and utilize the programs. They are, at times, avowedly opinionated. Where successful, these pieces convey a "feel" for what is happening that can complement and enrich existing statistical and clinically descriptive studies. The editors urge careful consideration of certain fundamental issues posed by the juxtaposition of these essays within a single volume. To what extent is agreement upon a single functional definition of mediation embedded in these programs? If the functional definitions are widely divergent, has the ad hoc creation and implementation of these programs unnecessarily complicated the task of systematic research into their efficacy? Or is infinite variability, though messy, a strength, facilitating adaptation to the full panoply of economic, political, social, demographic, subject matter and other distinctions among jurisdictions and particular courts? The authors of this collection are ADR practitioners and researchers. Judicial officers are not among the contributors. While this in no sense connotes an inherent lack of objectivity, the reader should be cognizant of a potential bias in point of view.
The Mediation Program of the United States District Court
for the District of Columbia
By John Bickerman
In 1989, a year before enactment of the Civil Justice Reform Act that gave rise to the use of ADR in many federal courts, the U.S. District Court for the District of Columbia established its mediation program, making it one of the oldest programs in the country. Then Chief Judge Aubrey E. Robinson, Jr., with the assistance of the Circuit Executive Linda Ferren, one of the architects of the local D.C. Superior Court Multi-Door Program, championed the program, which sought to speed civil case resolution while placing more responsibility for the outcome in the hands of litigants. Although the programs of the Superior Court's Multi-Door Division and the U.S. District Court share, to some extent, this common purpose, the features of each differ markedly. Like the Superior Court Program, the District Court program is not governed by statute. Instead, the main features of the program are set forth in the Court's Program Procedures for Mediation, and administration of the program is more formal than in the Superior Court.
Local Rule 206 of the District Court Rules requires all counsel, within 15 days of a defendant's first appearance or responsive pleading to meet and discuss, inter alia,what steps should be taken to facilitate ADR. Specifically, the rule mandates counsel to consider:
- their clients' goals and interests in bringing/defending the litigation;
- whether settlement discussions have been held and why they have failed;
- at what point in the litigation ADR would be most helpful - e.g. after limited informal discovery or resolution of a key legal issue - and whether discovery should be stayed to save expenses while ADR proceeds; and,
- whether mediation might result in savings or otherwise benefit the parties.
Within 10 days of the meeting, counsel must file detailed responses in each of these areas.
Local Rule 206 may be one of the strongest statements of any court affirming the need of litigants to use ADR. More than merely encouraging ADR, the rule requires parties to consider and respond, in writing, how and when ADR could best be used. Although strongly worded, the effectiveness of Rule 206 undoubtedly turns on how forcefully judges enforce it and there is currently no data available on its effectiveness.
The District Court Program offers mediation services to litigants in all civil cases. According to one U.S. District Court judge, no case, except perhaps the most complicated one involving administrative law or procedure, is inappropriate for mediation. While no litigant is ineligible for mediation, pro se litigants are discouraged from using the program. Court staff have expressed concern that the unequal bargaining power where one party has counsel and the other does not makes mediation inappropriate. However, a pilot program is being conducted where indigent pro se litigants are assigned volunteer attorneys for representation in mediation.
How the Process Works
Unlike many court-annexed programs, mediation in the District Court is voluntary. The ADR staff believe strongly that mediation is more effective if it is voluntary. As such, cases identified for mediation are rarely referred over the objection of a party. Although the program is voluntary, judges play an important role in guiding litigants into mediation. Cases may be referred at any time during litigation. Typically, mediation does not stay discovery or otherwise affect the calendaring of a case. Once referred, the case is reviewed by the staff within the Office of the Circuit Executive and special effort is made to tailor the process to party needs.
Unlike some programs, the presiding judge is excluded from the process. Program staff do not report to the judge about the progress of the negotiations, unless explicitly asked to do so by both parties, and advise the judge only whether mediation has succeeded. Furthermore, staff withhold the identity of the mediator, even after mediation is over. In this way confidentiality is preserved and the judge is not influenced by party conduct in mediation.
Misconduct during mediation instead is brought to the attention of the Dispute Resolution Compliance Judge designated to hear complaints that parties have not complied with mediation guidelines or judicial orders. Judge Lamberth, the Court's Dispute Resolution Liaison Judge, reports that there have been only two instances where matters have been referred. Judge Lamberth attributes the high level of compliance to the program staff, whom he praises for anticipating and addressing problems before judicial action is needed.
Because the District Court program, unlike the Multi-Door program, is voluntary, the number of cases mediated in the District Court is small compared to the volume of cases referred in the Superior Court. This small size permits program administrators in the Office of the Circuit Executive to track the progress of each case and accommodate party needs. According to one program mediator, this individual attention is perhaps one of the most important aspects of the Court's program and allays concerns that ADR renders "second-class justice."
Mediators - Training and Recruitment
All mediators must be admitted to the District Court bar and must be in practice at least ten years in order to qualify for the program. Applicants are screened by the Office of the Circuit Executive. Once selected, mediators receive 16 hours of training covering all aspects of mediation including setting the ground rules, overcoming impasse, reaching closure and memorializing an agreement. Increasingly, new mediators are being paired with veterans for their first assignments. This co-mediation serves the dual goals of providing new mediators on-the-job training and supplying program staff with immediate feedback on performance. Following training, mediators offer their services on a pro bono basis.
Party satisfaction with mediator performance is reported to be high. Mediators, in turn, give the District Court program high marks. In particular, the training received by the mediators was rated very highly, although one mediator expressed a desire for more advanced training.
Results
Over 1,813 cases have been referred to mediation through May 1998 since the inception of the program. The cumulative settlement rate for the life of the program is slightly under 50%. Of those settling, most were personal injury, contract and employment-related cases. Settlement rates are higher among private parties than the federal or D.C. governments.
The number of cases sent to mediation, 266 in the last calendar year, however, reflect only 13% of the non-pro se civil caseload pending at the start of the year. Nevertheless, the trend appears to be upward. There has been a 45% increase in referrals to mediation from 1996 to 1997, perhaps due to the appointment of judges who are more likely to encourage mediation.
As Judge Lamberth, charged with overseeing the Court's program, is quick to point out, the program has facilitated major settlements of significant cases, including several important class action lawsuits, including one brought by African-Americans agents against the Bureau of Alcohol, Tobacco and Firearms, and the recent sex discrimination case by female prison employees against the District of Columbia. Had these cases been litigated, trial would have lasted for months and consumed valuable court resources.
Tension between Private ADR Community and the Court
In 1989, when the District Court program began, mediation lacked general acceptance: few lawyers mediated cases and fewer served as mediators. Participation by those from the legal community who offered to serve without personal gain lent the program credibility. Some question whether the program would ever have been created without such voluntary support from the legal community which led the way for litigators to try mediation.
Today, as mediation takes root, a purely volunteer program, where attorneys give their time on a pro bono basis, has become controversial. Some question the fairness of asking mediators to donate their time when the attorneys litigating the case are compensated and parties are able to pay for mediation. An important consequence may be the devaluation of the process. Parties who pay are likely to take the process more seriously than if it is free. Indeed, charging a fair price may encourage parties to prepare more fully and negotiate more seriously.
Conclusion
The United States District Court's Mediation Program has had many notable successes mediating some of the Court's most high profile cases, including important class actions and issues of national public policy. The program draws its volunteer mediators from among the leaders of the local bar and membership on the Court's mediation panel is highly sought after.
Statistics do show, however, that Court's program is somewhat underutilized. More than 85% of the non-pro se caseload does not use the mediation program. Moreover, local private providers believe that because the program is free, private ADR has not grown as rapidly in the District of Columbia as it has elsewhere. All in all, the program deservedly receives high marks from judges, litigants and mediators for its individualized attention of cases. Mediation has gained a strong toehold among the Court's litigants and continues to be a guidepost for other programs across the country.
District of Columbia Superior Court,
Multi-Door Dispute Resolution Division
By Divonne Smoyer
The Multi-Door Dispute Resolution Division of the D.C. Superior Court began in 1985 as an experiment by the ABA and the local bar to determine if the "multi-door" concept would improve the administration of justice in the District of Columbia. Four years later, the experiment was deemed a success, and was designated by then Chief Judge Fred B. Ugast as an operating division of the Court. Since its inception, the Division has had a major impact on the Court and the ADR community. It has served as a model for other state and federal court ADR programs, and has been studied closely by delegates from abroad.
The Division has grown considerably over time: from a program in small claims and family mediation in 1985 to a full division of the court administering ADR in nearly all civil cases. The Division has a staff of 20, with 600 volunteers assisting in the two service branches: the Family and Community Branch and the Civil ADR Branch. The Family and Community Branch provides family mediation services and walk-in conciliation of consumer and community disputes. The Civil ADR Branch provides mediation, neutral evaluation and arbitration in general civil cases, and mediation in the specialized areas of small claims and collections, probate and tax assessment matters. A third branch, the Program Development Branch, is charged with recruiting, training and evaluating mediators; educating judges and court administrators on ADR; and, investigating areas in which new programs may be developed.
How the Process Works
Parties use ADR in the D. C. Superior Court via consent or court order. According to Judge Nan Shuker, a former Presiding Judge of the Civil Division, litigants are generally open to ADR: "there is a great degree of cooperation in the process and a great deal of respect for the Division among litigants and attorneys alike." Even where parties are not, Superior Court judges have the authority and frequently use their discretion to order it.
According to Division staff, mediation is by far the favored method, although arbitration is used regularly. Neutral evaluation is seldom used, probably due to unfamiliarity with the process. Mediation in the Superior Court tends to be facilitative, rather than evaluative, although this is less so in the Civil ADR Branch. While there has been some criticism of evaluative mediation in the ADR community, some Court litigants actually prefer an evaluative approach.
Neutrals - Training and Recruitment
The Division recruits and trains its own neutrals. Neutrals in the civil ADR and tax mediation programs must be attorneys, while mediators in the small claims and collections and family and community programs have varied backgrounds. Applicants are screened via mock mediation exercises and interviewed by Division staff and mediators who conduct skills assessments. As ADR has grown in the business and legal communities, so have the number of applicants to Division programs. Consequently, only a fraction of the applicants are accepted, making admission to the program highly competitive. Screened applicants are trained by trainers comprised of Division staff and program mediators. Initial training sessions range from 30 to 65-hour courses, depending on the program, and continuing education seminars are available.
Division staff report the level of satisfaction with neutrals among litigants is high. Judge Shuker is even more enthusiastic. During her three-year tenure as Presiding Judge of the Civil Division, she saw many of the most well-respected lawyers in the city volunteering their services to the program. As a consequence, she says, Superior Court judges generally have few reservations in ordering cases to mediation. Recently, however, several observers criticized the Court for its delay in appointing a Director for the Division from 1995 to 1997, and expressed concern that the delay created problems with program continuity.
Following training, mediators must donate six hours per year to the program. There are additional time commitments depending on the particular program. Mediators in the Civil Program, for instance, are required to mediate no fewer than 20 cases in the year following training. Following satisfaction of the pro bono commitment, neutrals receive stipends ranging from $30 per session for small claims cases to $300 for civil cases.
Multi-Door neutrals are immune from suit by disappointed litigants. A recent case, Wagshal v. Foster, provides that neutrals in court-annexed programs in the District of Columbia have absolute quasi-judicial immunity. The Court of Appeals for the D.C. Circuit held that evaluators, as well as mediators, are entitled to the same immunity as others in the judicial process, citing the functions neutrals serve, the safeguards against unconstitutional conduct, and the potential for harassment if such suits are permitted.
Case Volume and Settlement Rate/Impact on Caseload
By any standard, the Division has a high case volume. Over 9,750 cases were processed in 1996 -- up from 8,250 in 1994 and 9,500 in 1995. Of those completing mediation, arbitration or neutral evaluation, roughly 45% settled in 1995 and 47% settled in 1996 following a single-day of mediation.
The impact on the Court caseload is less clear. A 1992 Urban Institute study revealed that while participants were generally happy with Division programs, they had little effect on caseload, and increased the resources expended per case. This finding is consistent with the recent study of various federal district courts prepared by the Rand Institute for Civil Justice on behalf of the Judicial Conference of the United States. Judge Shuker's experience is to the contrary. Although she says there will always be cases that do not settle, she contends efficiency is often hard to measure. In her experience, ADR decreases the time spent on cases not going to trial. As for cases that do go to trial, she feels ADR increases the quality of trials: they are better prepared and litigated. Litigants agree. According to one attorney, complex cases (such as medical malpractice) that would take three or more years to be resolved in litigation only, are now over in a little over a year where there has been an attempt to settle via ADR.
Recent Developments
In 1998, the Family and Community Branch began a pilot program for abuse and neglect cases. Begun at the behest of Judge George Mitchell, the Presiding Judge of the Superior Court's Family Division, and the D.C. Department of Human Services, this program allows the parties, along with a mediator, to generate options for child placement, counseling and treatment for parents. It does not encourage mediation of abuse per se, but facilitates a process to address issues normally resolved ex camera. While it is too early to predict an outcome, the Division is optimistic about its ability to compress the time necessary to resolve these cases.
Criticisms
Second Class Justice
Despite the success of Division Programs, some question whether mandatory ADR across the civil docket jeopardizes justice. In particular, there is concern ADR is inappropriate in the family context, where emotionally-laden issues with long-term consequences are rife. According to one former Superior Court Judge, there is pressure to dispose of such cases quickly because they are time-consuming and psychologically difficult. Instead of ADR, this judge believes what is needed is court action - a clear decision around which parties may order their affairs. Permitting judges to "pass the buck" to ADR the argument goes, renders litigants second class justice. The Urban Institute Study described above, however, found that participants in Multi-Door Programs were largely satisfied with their experiences, particularly where their case settled.
Neutral Compensation
Compensation has also arisen as an issue in the ability of the Division to develop a qualified pool of neutrals. While Division neutrals are paid once they have satisfied their pro bono obligations, the stipends are minimal, particularly where mediators are required to mediate 20 or more cases. According to Charles Bethel, the former Deputy Director of the Division, the current stipends were set years ago and do not reflect the efforts the neutrals commit to the program. This, he is concerned, discourages neutrals from developing their expertise or devoting the optimal level of time to their cases. A solution is not readily apparent. According to Division staff, the Court cannot pay neutrals, and it would be problematic to require litigants to pay for a court-ordered process. Nonetheless, Bethel believes that to retain neutrals and attract new ones, mediation may have to be financed by litigants.
Conclusion
The D.C. Superior Court's Multi-Door Dispute Resolution Division is a success by many standards. From its inception, the Division has evolved to meet the needs of the court and the public and has earned the respect of the bench and bar. While many mandatory court-annexed programs have been faulted for constricting party options and for low settlement rates, the Division has been able to maintain the confidence of litigants and provide them with resources for settling cases. Nevertheless, the Division must closely monitor program efficacy in order to ensure these litigants are not compromised. Similarly, the Court will need to act in order to keep attracting individuals who have the incentive to invest in their skills if it is to maintain the level of success the Division has enjoyed in the past.
