Court alternative dispute resolution (ADR) programs address conflicts that span a wide variety of issues. From feuding neighbors to multi-million dollar commercial deals gone sour, from landlord-tenant troubles to competing trademark claims, and from parents arguing over children to lawyers arguing over class actions, ADR has become an established part of many court systems. By utilizing ADR, courts can offer parties an alternative method of dispute resolution that will suit the parties’ needs and result in the effective administration of justice.

The way in which a case makes its way into and through a court ADR process depends on decisions made by the court, in consultation with stakeholders (and often with experts from RSI), when structuring its ADR processes. This article presents a series of continua that describe those decisions. Courts decide how close a program is to the court, how mandatory or voluntary a process is, who the neutrals are, how and if neutrals will be compensated, how confidential the process is and whether the process is binding.

How do ADR processes fit into court processes?

Court ADR programs work in conjunction with the traditional case flow. Typically, courts either provide access to ADR for entire sectors of a court (e.g., family or housing) or for particular types of cases within a sector of a court (e.g., divorce or landlord-tenant cases). In either case, the ADR services can be placed on a continuum describing how close the ADR services are to the court.

On one end of this continuum lie courts that establish ADR programs within the court structure and have court staff provide ADR services. In the middle of the spectrum are courts that develop and maintain a roster of neutrals from which neutrals are appointed by the court. Finally, on the opposite end of the spectrum are programs that are outside the court system. For these types of programs, the court contracts with an outside entity to administer the ADR program and provide services on the court's behalf. (Note: Sometimes judges may informally suggest participation in an ADR process without any existing court rules, ADR program or neutrals. That would not be considered a court ADR program.)

Is participation in ADR processes required?

An important continuum in court ADR is whether participation in the program is mandatory or voluntary. While these may seem like two exclusive options, rather than a continuum, there are multiple ways to define these poles on the continuum. In terms of the concept of "mandatory" mediation, programs typically have some types of cases that are excluded, e.g., criminal cases that are excluded from appellate mediation or cases alleging intimate partner violence that are excluded from divorce mediation. This means that "mandatory" is not always as compulsory as it would seem to imply. When it comes to "voluntary" mediation, the term can also be somewhat of a misnomer. There may be varying levels of encouragement from judges to participate in voluntary mediation ranging from ignoring the opportunity altogether, to strong-arming tactics. Sometimes mediation becomes so ingrained in the way that law is practiced in a particular area that it loses its voluntary nature. Given the multiplicity of ways that the concepts of mandatory and voluntary participation play out in reality, it is clear that they are not always two distinct concepts.

The concepts of "opt-out" and "opt-in" are also fuzzy. The idea of an opt-out program is that everyone participates unless they opt out and similarly, the only parties participating in opt-in programs are those who take a specific action to enter the program. In reality, these terms are more likely to reflect the approach the court is taking than necessarily whether everyone participates or not. Opt-out programs may have higher participation rates than opt-in, but it is not safe to assume everyone will participate in them.

Who provides ADR services and who pays for them?

Another continuum in court ADR is who is going to provide the ADR services and that relates to who is going to pay the neutrals. In some programs, the court has paid staff members to provide ADR services. Moving along the continuum, the next step would be for the court to maintain a roster of neutrals (independent contractors) who the court selects and pays for each case. The court may also maintain a roster of independent contractor neutrals from which the parties may choose. Next on the continuum are courts that maintain rosters that may be utilized in a variety of ways, for example, the parties can pay, the neutrals can volunteer, or some combination of the two. On the opposite end of the spectrum are court programs where the court contracts with other entities to maintain rosters of mediators. These mediators might be paid by the court or by the parties, or they may be volunteers. In addition, there are some combination plans where the mediators volunteer for an initial block of time and then work out a payment plan with the parties for any service following that initial time.

Are ADR processes confidential?

Another ADR continuum to consider concerns confidentiality. In general, there can be confidentiality regarding what happens in an ADR process, the outcome of an ADR process (e.g., mediation agreement or arbitration award), both, or neither. Additionally, some participants in ADR may be bound by confidentiality while others may not. Similarly, certain participants may be able to assert a privilege so that testimony or evidence regarding what occurred in the ADR process cannot be presented in court.

The role confidentiality plays in ADR varies greatly from process to process. In mediation for example, confidentiality is central, whereas in arbitration, it is not. Despite its centrality, in some cases, the outcomes of mediation may or may not be confidential. Similarly, in commercial litigation confidentiality can take many forms. For example, the parties to a commercial litigation dispute may elect to have the terms of their settlement remain confidential and simply drop the court case. Yet, by doing so, the parties will lose the ability to turn to turn to courts for future enforcement of a judgment. In other cases, parties to commercial litigation disputes may also choose to request that their agreement actually become the court order. In other cases, like those regarding child custody and visitation, agreements may still may require court approval even though the agreement derived from a confidential mediation. In cases like this, court approval is necessary in order to ensure that the parties’ agreement is in the best interests of the children.

Are the outcomes of ADR processes binding?

The final ADR continuum to consider examines whether the result of an ADR process is binding or nonbinding, i.e., whether the parties are required to adhere to it or not. While this may seem like simply two options, there are additional possibilities. For example, rules for court arbitration programs may place pressure on parties to accept awards after considering the costs associated with rejecting an arbitration award. These types of expenses may make parties less likely to challenge an award once they consider the obstacles that will stand in the way of moving the case back to court. On the other hand, mediation is generally considered to be a non-binding process because whether parties reach an agreement is completely voluntary. However, agreements reached in mediation typically contain the elements of a contract. As a result, mediations that reach agreement are most likely to be binding to the same extent as a contract.

Conclusion

When developing an ADR program, every court makes a series of decisions about how ADR will work for particular case types. Taken together, these decisions -- as described on the continua above -- dictate how a program operates.