|
When
Stuart Miller called and asked me to write this article,
I was reluctant. My prose style, as I'm sure you will
notice, leaves something to be desired; however, I
saw an opportunity to share with the bench and bar
what I believe is a success story. The use of mediation
in the 20th District and Statewide is on the rise
for good reason. This additional arrow in our quiver
can help clear the docket of those cases which should
be settled and provide time to address those cases
that wait on an otherwise crowded docket.
First, let me explain
where we have come from and where we are now. When
I took office as the fourth Circuit Judge for the
20th District in May of 1995, the idea of mediation
was very new. The legislature had approved the creation
of the fourth judgeship for this district due to the
tremendous growth experienced particularly in Faulkner
County. I had been fortunate enough to receive the
appointment and was ready to go to work for our citizens,
providing speedy and efficient management of the expanding
caseload.
The program was to be
ever so simple. The cases would find a place on the
docket and be tried. If the case settled, we would
move another in and charge ahead. Having practiced
law for 17 years prior to my appointment, I knew this
was a very optimistic outlook. The reality set in
quickly. The weight of cases, conflict with other
settings, problems with attorneys, necessity for providing
days of court for all counties of the district, limitations
of staff, and originally the limitations of facilities
tempered my optimism.
For the past nine years
the judges in this district have struggled to make
themselves more available, and their procedures more
efficient, to address the needs of the litigants.
Various methods have been used including a modification
of our Administrative Plan. We now have one judge
who specifically deals with all juvenile cases, and
the other three divide the civil, domestic relations,
probate and criminal caseload from the three counties.
We have attempted to
set cases in a manner we believe most efficient. This
is done at the request of the parties based upon the
time anticipated for its disposition, taking into
consideration the nature of the litigation. We have
consistently crowded our docket on any given day with
more hours of trial than we can hear in hopes that
some or part of those cases will find a resolution.
Our most recent statistical
information provided by the Administrative Office
of the Courts shows that the 20th District ranks first
in filings per judge at just over 2500. Therefore,
it is essential that there be a resolution of some
of these matters as it would be impossible to try
them all. It goes without saying that most judges
and lawyers in the state would confirm the majority
of cases will, given time, find a satisfactory solution
without the intervention of the court. The trick is
sorting out these cases before a wasted setting slows
down the docket. Hence, the necessity for some mechanism
to influence a resolution of these cases, if at all
possible, and make court time available for those
matters that must be tried.
The legislature passed
Act 641 of 1993, which provided the court could refer
a case or controversy to the appropriate dispute resolution
process, such as mediation, on the Motion of all parties.
In mid- to late-1996, one of the pioneers of mediation
and his organization approached the judges in the
20th District with the idea of submitting cases from
each division for mediation under this Act. After
some discussion, each judge in the district picked
a number of cases that were referred to this program
at no costs to the parties. A total of 13 cases were
submitted, 12 of which settled. Members of the bench
were excited about the result; however, the bar was
still cool toward the idea and as a result, the use
of mediation languished.
The legislature again
addressed the question of mediation and passed Act
1179 of 2003. This now allowed the Court to order
mediation in all types of cases. The four judges in
this district decided to take advantage of the new
law to address the docket. As I previously noted,
we set cases based on the time required and the relief
requested. You can find a Setting Request Form on
our website at www.faulknercc.org.
Prominently placed on the form you will find a space
reserved for the time required and the nature of the
hearing. The information supplied will then be provided
as the basis for the referral to mediation.
Obviously in some cases
it would not be cost-effective, such as a thirty-minute
request for a contempt hearing regarding non-payment
of child support, but if a review of the court file
indicates a response seeking modification of visitation
or change of custody, mediation may very well be considered.
On the other hand, requesting a one-day bench or jury
trial in any civil litigation will result in an Order
of Mediation before the case is set.
It was our conclusion
that this could accomplish three things. First, it
would put the parties in the position of beginning
to address the issues and take a hard look at the
prospects for prevailing at trial contrasted to a
mutually agreeable and workable settlement. Secondly,
we hoped that it would alleviate the problem of having
a matter set for trial for a day or half of day only
to find out the day before that the parties have settled
the matter or, after some discussion when everyone
arrives at the courthouse, the matter settles. Please
understand as I hope is clear, the bench is not against
settlement; however, when a matter settles on short
notice the court is left with a day or half of day
of court that could go unused. Finally, mediation
also can assist in those situations where a case cannot
wholly be resolved, but a solution to some of the
issues, whether it be property or custody, or the
issue of liability, will reduce the length of time
required to try a case. This enables the court to
set more cases on a given day.
Is mediation working?
Yes. All state certified mediators are required by
Arkansas Dispute Resolution Commission (ADRC) rules
to submit a report on each mediation that they conduct.
The ADRC has published the most recent statistical
analysis regarding the effect of mediation for the
period of July 16, 2003, through August 31, 2004.
That data is particularly enlightening and is reproduced
below.
RESULTS OF COURT ORDERED MEDIATION SESSIONS:
What types of cases were ordered for mediation?
Civil - 46 cases (22%)
Probate - 3 cases (1%)
Domestic Relations -
118 cases (56%)
Juvenile - 41 cases
(19%)
Unspecified - 6 cases
(2%)
Did the judge send all issues of the case to mediation
or limited issues?
109 cases included all
issues (51%)
74 cases were limited
issues (35%)
30 cases were unspecified
(14%)
Did the mediation take place?
No, mediation never began. - 12 cases (6%)
Yes, but mediation was halted and the case returned
to court without agreement. - 52 cases (24%)
Yes, mediation was completed with a full agreement.
- 125 cases (59%)
Yes, mediation was completed with a partial agreement.
- 24 cases (11%)
No, but the case settled after mediation ended. -
No cases reported.
How many mediation sessions were held?
Of the 213 reports,
203 reports held information concerning the number
of sessions held (nine cases never began mediation).
None of the cases reported required more than 4 sessions,
and most cases were resolved in one session:
One session - 172 cases
(85%)
Two sessions - 19 cases (9%)
Three sessions - 10
cases (5%)
Four sessions - 2 cases
(1%)
Of those cases that were resolved in one session,
how many hours were spent in mediation?
Less than 3 hours -
35 cases (21%)
3 - 5 hours - 93 cases
(56%)
5 1/2 - 8 hours - 27
cases (16%)
Over 8 hours - 11 cases
(7%)
The ADRC has graciously
provided this writer with statistics specifically
regarding the 20th District. While I would not want
to bore you with statistics, I believe that some need
to be pointed out to the reader. Based upon ADRC data,
a total of 27 cases were referred between July 16,
2003, and August 31, 2004. Of that number 70% were
domestic and 26% were civil. In 48% of the cases mediation
resulted in a partial or completed resolution (37%
complete and 11% partial). Converting these statistics
to court time, we can feel comfortable in saying that
mediation assisted settlement of 48% of the 27 cases,
adding back to our docket 12 days. Statewide, 70 percent
of the cases referred resulted in a full or partial
settlement.
As the statistics show,
the use of mediation has affected the number of cases
to be disposed by the Court, but there are also other
benefits. The parties sitting down with a neutral
third party who helps them find common ground and
a resolution that all are comfortable with is preferable
in many instances. All judges have had the experience
of, having heard the evidence in a case, reaching
a decision that follows the law but results in a hardship
on one or both of the parties. This result may have
been avoided by some measure of compromise or negotiation.
The literature indicates that parties are generally
more likely to follow through and are happier with
agreements which they craft as opposed to a disposition
handed down by the court. The judge, having done all
he or she can do to be thorough, will never be as
familiar with the circumstances as the parties are
themselves. Consequently the parties may have missed
an opportunity to resolve their issues from which
both sides could benefit.
Are there problems with
mediation? Without question. Any judge that has used
mediation will tell you that it is not a silver bullet
for case resolution. There are invariably situations
where the parties, having entered into the discussions
and settled but before the memorandum of understanding
is approved, reject the agreement. There will be situations
where the parties show up for the mediation with instruction
not to agree. There will be situations where the parties
worked diligently and resolved all the issues, save
one, which is absolutely not subject to compromise.
Will there come a time
when all contested cases are submitted for mediation?
Probably. I say probably because there are seldom
absolutes; however, the success which we have experienced
cannot be ignored. The bench must move to take advantage
of the available resources to cope with the demands.
This district has requested of the legislature for
the creation of a fifth judgeship. At this writing
that request has not been acted upon. Whether we are
successful or not, there is no reason to suspect that
mediation will not play a role in the future of case
management. Furthermore it is hoped that in time any
attorney's reluctance to submit cases to mediation
will go away completely. The trend has been for attorneys
to be more accepting and more open to the mediation
process. Some attorneys still consider mediation as
an infringement upon their territory. But consider
the alternatives: Rather than spending time on a case
that can be resolved by agreement, you can devote
yourself to cases that need your expertise as a litigator,
draftsman and negotiator. I recognize this distinction
is sometimes hard to draw, but a court order directing
your case to mediation will allow you and your client
to review the issues and consider the options that
could very possibly dispose of the case sooner rather
than later. I urge you who have little or no experience
with mediation to keep an open mind and let it work
for you.
In the final analysis
it is clear from not only the experience of the 20th
Judicial District but also state-wide, as reflected
in the ADRC's Report, that mediation has had and can
continue to have a positive effect on the ability
of the courts of this state to lessen the time between
the filing and the conclusion of a dispute. It is
equally clear that mediation is not the answer in
every case. It will not solve all the problems of
this district or any other district, but it can make
inroads into the caseload crunch that all are experiencing.
We will continue to use it as a tool to provide faster
and more efficient disposition of cases. Hopefully
in time any resistance the bar may have toward mediation
will continue to decline and the success rate will
continue to improve.
Acknowledging that speed
is not always a concept compatible with justice, we
must move forward with every innovation to improve
the delivery of legal services and fair resolution
of disputes to our citizens. The bench does not have
the luxury of being able to dismiss the benefit of
mediation and still perform its function.
|
