COURT-ANNEXED MEDIATION
Dr. Don Peters, director of both the Institute for Dispute Resolution and the Virgil Hawkins Civil Law Clinic at the University of Florida, has extensive experience in alternate dispute resolution (ADR) and court-annexed mediation in Florida, which was one of the first states in the nation to develop ADR procedures, including an ethical code for mediators. In this interview with Contributing Editor David Pitts, Dr. Peters talks about the challenges of implementing mediation in the courts.
Mr. Pitts: What do you consider the greatest challenges in implementing alternate dispute resolution in the courts?
Dr. Peters: I think envisioning accurately what you want to accomplish and then creating the implementing steps are the most significant challenges for court-annexed mediation. You need to ask the following questions:
Some of the important implementing steps include: 1) creating statutory or rule-based authority for the referrals, 2) creating any necessary procedures regarding the mediations, 3) creating a means to ensure minimal mediator competence, which often includes mandatory training or certification requirements, ethics codes and mechanisms for their enforcement, 4) securing adequate funding and 5) determining who will coordinate the program.
All of these decisions and implementing steps can present significant challenges depending upon the circumstances confronting individual courts.
There is a concern that emphasizing such things as 'clearing the docket' and 'speeding up trial time' may actually affect how mediation is conducted. For instance, they may overemphasize settlement rates, which may encourage mediators to be coercive, which in turn conflicts with the goals of the mediation process.
There is also some evidence suggesting that mandatory mediation may not be reducing court personnel expenses because the same number of cases are still going to trial. Only about four percent of civil cases make it to trial in most court systems. Instead, mandatory mediation may be influencing the types of cases that make it to trial, for example, the ones that cannot be negotiated easily. But it also may be helping ensure that trial time is given to the cases that need it most.
Mr. Pitts: Mediation can either be mandatory or through agreement by the parties involved. How is the majority of cases handled, and does the court exercise any review once mediation begins?
Dr. Peters: Mandatory mediation proceeds as outlined in the rules and statutes of a state, whereas voluntary mediation can be adapted by agreement to create whatever process areas the parties wish.
I think most successful mediation programs in the United States are through mandatory mediation. Certainly most state courts, including Florida, which is the system I'm most familiar with, have mandated mediation.
As for court approval, an agreement reached during mediation is deemed to be a contract. The parties are negotiating their way out of a dispute by reaching an agreement that has the force of a contract, and so the court generally does not review agreement terms.
An exception to that rule might exist when a court would see something in a mediated agreement in a family-law case and conclude that it is not in a minor child's best interest. That is about the only situation I can think of where the court would exercise any kind of review over the outcome of a mediation.
Mr. Pitts: What are the resources required to set up an ADR program?
Dr. Peters: The resources needed depend upon the choices that are made regarding the decisions and implementation of the steps that I mentioned earlier. The biggest expenses typically are the court-provided mediation services. Using private mediation-providers who are paid by the litigants is the least expensive route. There is some use of volunteer pro bono mediators in the various court-annexed programs around the country. Some expenses in Florida, for example, are paid by general court budgets through mediation certification and re-certification fees and by additions to court filing fees, which are sums of money paid to the court for particular charges that are mandated by state law.
Filing fee additions also have been a popular source of funding in other states' programs because they provide a steady reliable revenue source. They legitimize the ADR process by requiring everyone who uses the court to fund the program even if not all cases are sent to mediation. The justifying theory is that litigants who do not actually use ADR may in fact benefit by gaining more timely access to a traditional legal tribunal. Another advantage is that this approach communicates the fact that litigation is not the only service that courts can offer.
On the federal front, a 1996 survey of federal court programs shows wide diversity from district to district. Nevertheless, it concludes that most federal courts now use private mediation services and require litigants to pay the fee.
Mr. Pitts: Who are the key players in the ADR process?
Dr. Peters: The key players in court-annexed mediation are the judges, the lawyers, the litigants or participants and the mediators.
The judicial role is limited to referring the case to mediation and occasionally designating the mediator. The Florida premise is that the judge, together with the parties, is in the best position to determine if a case is appropriate for referral. Once that decision is made, some systems authorize judicial appointment of a certified mediator from a rotating list or a program mediator maintained by the court. These mediators are primarily used in lower-income family cases and in volunteer small-claims cases.
Once mediation is ordered, the lawyer's role in mediation often includes selecting the mediator if private mediators are used. Florida has a "10-day rule" allowing parties to agree on a mediator within 10 days of an order referring the case to mediation. This provision is used in more than 90 percent of the private-mediator referrals in circuit and family court cases.
The lawyer also has an important role in preparing litigants for mediation, which includes explaining the mediation process fully. He outlines the general roles of the mediator, that she or he is a facilitator but not a decision-maker. He explains the confidentiality parameters, which are set forth typically by statute law in states that have adopted mandatory mediation. He explains the mediation process, which includes opening statements by participants -- often including clients as well as lawyers -- and then alternating joint and private sessions thereafter.
An attorney also plays a major role in representing participants in mediations. A lawyer is usually given the right to attend and participate fully in a mediation. In Florida, for example, an attorney must appear in circuit court mediations unless otherwise stipulated or ordered, and he may participate in county court mediations. He also may, but is not required to attend, family court mediations.
Typically, in Florida, lawyers act as the primary negotiators during mediations. They stay throughout circuit court cases and then lead the dialogue during the economic aspects of family cases, but play less significant roles once custody and visitation rights are under discussion.
In most states -- including Florida -- participants are usually required to attend court-ordered mediation. Otherwise, they can be sanctioned for failing to attend without good cause and made to pay mediator and attorney fees or other costs.
Court-ordered mediation has proven to be a very good way to involve and commit lawyers and participants to the mediation process because, in essence, they have no other choice. The theory is that if you sit people down with authority they will make good use of the time and at least talk.
Most lawyers and litigants appreciate the things mediation adds to the pre-trial negotiating process. For instance, lawyers learn that mandatory mediation is totally consistent with their traditional practice of pre-trial settlement in most civil cases. Control of negotiating and strategizing is not taken from them, and it does not prevent them from trying cases they and their clients want to try.
Mediation generates a closure that encourages parties to reassess the risks and consequences of not agreeing. Litigants can give vent to emotional issues better and more broadly than possible at trial because those issues will typically not be as relevant at court. They also can avoid the stress of participating in a trial and the time lost from work, as well as the additional costs incurred.
Mediation lets lawyers make concessions within private meeting-like settings, which is an easier place to concede from earlier positions because it helps "save face." It also provides a process that permits the confidential sharing of information that could generate solutions but that is too risky to share with the other side directly. Mediators can use this information to explore potential solutions without disclosing it directly. They also can point out case weaknesses that re-enforce what lawyers may have already told their clients initially. This can help litigants decide to revise their thinking and move toward agreement.
Mediation can take advantage of a neutral area on the difficult questions involved in evaluating claims. For instance, it lets the negotiators take advantage of a broad range of solutions. Apologies, for example, are typically not things that courts can order, except in defamation lawsuits. But apologies can be very important to creating the good will that results in a settlement. In mediation, you can be very creative.
Mr. Pitts: What kinds of training programs are required for mediators?
Dr. Peters: The mediation community is recognizing the importance of developing mediator qualifications to protect consumers and to protect the integrity of the process. Most states deal with this by statute or by rule, often following Florida's lead in using a certification process.
Typically, qualification or certification requires some combination of the following: mediation training, apprenticeships or mentorships, educational requirements and previous experience in related fields. There are lots of individual variations from state to state, and the federal courts often rely on state qualification or certification procedures.
Florida, for example, mandates different qualifications for certification in different areas of mediation. The cornerstone is a non-waivable training requirement that consists of 20 hours in county courts and 40 hours in family and circuit courts. The training programs must be taught by persons qualified by the state supreme court. They must meet specific educational goals, and they must be approved by the Florida Dispute Resolution Center. Programs typically cover general dispute-resolution theory. They explain and develop through practice, specific mediation skills and role playing where the participants are observed and critiqued.
Mentoring requirements follow the training. For Florida county courts, you have to observe and conduct four mediations under the supervision and observation of a certified county mediator. In family and circuit court, you have to observe and co-mediate two. No educational experience or qualifications are required for county court mediation. For family court, you must have at least four years' experience as an attorney or as a certified public accountant; or have a master's degree or PhD in social work, mental health, behavioral or social sciences; or be a physician certified to practice adult or child psychiatry. For circuit court, you must be an attorney with at least five years' experience on the Florida Bar or be a retired judge. Both attorneys and judges must be members of the bar in the state where they reside.
The certification process in Florida -- which lasts two years -- consists of demonstrating compliance with these criteria, training requirements and the payment of a certification fee.
Mr. Pitts: Why are the vast majority of mediation cases civil rather than criminal?
Dr. Peters: The stakes and the interests are different. Civil cases primarily involve private interests. States get involved only by providing ADR solutions so that the parties can use law to adjudicate claims regarding their private interests. The burden of proof is a "preponderance of evidence." Remedies are typically monetary or equitable. Personal liberty is seldom involved, the death penalty is not available and there is no presumption of innocence favoring the accused as in a criminal proceeding. Whatever private parties decide to do is okay as long as it does not violate a law or other expression of public policy.
Criminal law cases, on the other hand, involve crimes against the state, and enforcing these laws protects society's collective interest and behavioral norms. Defendants have a presumption of innocence until proven guilty and the burden of proof is "beyond a reasonable doubt." Defendants also have a right to remain silent and cannot be forced to testify. So it is rather hard to see how mediation, which is a process based upon conversation, would be effective.
The attempt to move mediation to the criminal justice system has been primarily in the arenas of victim/offender mediation and neighborhood justice. Cases typically referred are usually small crimes and other things that may be burdensome to prosecute: bad check charges, for example.
These programs typically depend upon the willingness of victims and offenders to participate in a constructive manner. But severe problems exist with offenders who feel coerced into participating and are led to believe that their subsequent prosecution or sentencing will be harsh if they do not reach an agreement in mediation. It really transforms the criminal justice paradigm by putting victims at the center rather than on the periphery of the criminal process and it transfers the power to resolve all or part of a criminal case to a private party.
Mr. Pitts: Finally, in your personal view, how well do you think mediation works?
Dr. Peters: I think it works very well. It is certainly a fact of life in Florida law practice now: if you're going to litigate you're going to mediate. A large number of Florida attorneys have taken mediation training primarily to learn more about how to advocate effectively.
My work in small claims court suggests about a 60-percent compliance rate with mediated agreements in collection cases. That shows some measure of how well mediation works. One small claims study showed that unusually large awards going entirely to the plaintiff occurred in nearly 50 percent of trials but only 17 percent in mediated outcomes.
In other areas, there is one divorce study that found a significant percentage of divorcing couples who did not reach an agreement, nevertheless, valued the mediation process because it accomplished other things, such as improved communication, and in a few cases, reconciliation. A divorce study also has shown that mediation produced more joint-custody agreements, while adjudication produced more sole custody agreements.
So there is some evidence suggesting mediated agreements involve more compromise and more equal sharing of resources than adjudicated outcomes.
Mediation has emerged as the primary ADR process in federal courts. Many federal courts now require attorneys to discuss ADR with their clients and opponents. For example, mediation has basically changed the way litigation occurs in the Florida courts. Anecdotal evidence suggests that more clients are asking for it, and more attorneys are requesting it before the court gets involved.
Mediation really does seem to add a new, different process that can be used in tandem with the litigation process before adjudication.