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Courts study new law requiring dispute resolution.

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Courts Study New Law
Requiring Dispute Resolution
It‘s sit-and-wait time for lawyers and their clients who are wondering what will happen next
in light of a new law requiring
- -alternativedispute resolution in federal courts.
But that‘s not true behind the
court doors. Court officials are reviewing the law, the Alternative
Dispute Resolution Act of 1998,
and assessing their existing programs.The federal offices assigned
by the law with carrying out key
provisions already are &ng inquiries from their courthouseconstituents around the country.
And court watchers are mixing praise for
the act‘s intents with cautions about the need
for precise steps to make individual programs
successful. The biggest question is whether
there will be adequate funding to sustain sufficient programs, and also for what those in the
field say is necessary for ADR quality: neutrals’
recruitment and training.
President Bill Clinton made ADRa mandatorypart ofthe federal district court system when
he signed the act on Oct. 30, codifying it at 28
U.S.C. § 151 et seq. [See “Clinton Gets ADR
Bill,” 16 Alternatives 169 (November 1998).]
In the law’s findings, Congress declared that
ADR, “when supported by the bench and bar,
and utilizing properly trained neutrals in a program adequatelyadministered by the court, has
the potential to provide a variety of benefits,
including greater satisfaction of the parties, innovative methods of resolving disputes, and
greater efficiency in achieving settlements.”
Congress also cited ADR’s potential “to reduce
the large backlog of cases now pending in some
federal courts,” as well as the success of federal
appellate court mediation programs, in sending the act to the president.
The law requires every federal district court
to set up an ADR program for all civil actions.
Courts must appoint an employee or a judicial
officer to oversee the program, which will include recruiting and training neutrals. The act
limits the referral of certain cases to arbitration, but authorizes the use of ADR in every
civil action held in federal courts, including
bankruptcy courts. It also says that, pending
regulations by the U.S. Judicial Conference,
district courts will set neutrals’ compensation.
For some courts, the new law means correlating an existing program with the new fedI
eral law. “I would think that we are in cornpliance,” says Thomas C. Caver, court clerk
in the middle federal district of Alabama, “or
at least on the outer edge of the law.”
For a few, it will mean es-
EDITORIAL BOARD
CHAIRMAN
J A M S F. HENRY
CPR Institutefir Dip& Resolution
W. REECE BADER
Orrikk, H m n p n
& SurCl@
ROBERT T. BERENDT
Thmnomn
Coburn
. . ,--
CARRIE MENKEL-MEADOW
G e m p w n Law School
ROBERT H. MNOOKIN
HamrdLawS&ool
PAUL J. MODE JR.
wilnur. cutler
JOHN J. BOUMA
SneU & WZmer
& pirkcrng
JAMIE BRODER
JAMES M. RINGER
Paul Hastings,Jamfky
& walker
PAUL D. CARRINGTON
Duke U n i m ’ q School
of Law
A. STEPHENS CLAY
Kibarrirk &Cody
f&zp
& Wells
%zrdp
A*JAMES RoBERISoN
‘I
Of
NANCY ROGERS
Ohw State U n i m i q
G k OfLaW
D
CATHY A. COSTANTINO
I
each individual district.
The idea of setting up dispute resolution
programs in federal courts using ADR-style
techniques is purely intentional. Peter
Steenland Jr., who heads the U.S. Justice
Department’s Office of Dispute Resolution,
said “It is our hope that there will be collaborative processes in each district involving leaders of the bar to ensure that each program has
the support of those who would use it.”
Steenland and his staff are the act‘s principal
architects, and worked on rewrites after Congressional hearings.
The Judicial Conferenceparticipated in the
drafting as well, led by Portland, Maine-based
U.S. District Court Judge D. Brock Hornby,
who heads the conference’s court administration and case management committee. The
conferencewanted--and got--flexibilityfor the
courts in constructing the programs. The law’s
local emphasismay be its most important characteristic. It allows courts with widely varying
resources and use rates to tailor programs how
they see fit. “How they want to implement it is
completely up to them,” says Mark S.
Miskovsky, an attorney for the conference
committee’s policy staff at the U.S. Office of
Court Administration in Washington. He
added that the Judicial Conference was “happy
with the form ofthe bill.” The bill also received
American Bar Association support.
IT‘S NO SHOCK
Federal DIpost Insurance
Corn.
-.
I
‘‘“ID
‘* SANDBoRG
City Unimity of
Hong Kong
RICHARD W. DUESENBERG
Monsanm G. IRd
LAURA EFFEL
Baker & M c k k i t
LAWRENCE J. FOX
Drinker>Biddlr & Reatb
MARC G A U N T E R
U n i m i q of Wiscomin
Law School
FRANK E.A. SANDER
Haruad Law School
IRENE C. WARSHAUER
Andmon Kill
& Olick
MELWN I.WEISS
Milbng We&
IiershadHF
& h h
WHITMORE GRAY
Fordham U n i m ‘ q School
of Law/Llnimiq of
Michigan Law School
GERALD 1.WILLIAMS
Brigham Young
UniU#Yi#y
ED E. WILLIAMS I11
EDWARD J. LYNCH
W y ,Tawant
Hayna and Boom
& Combs
HARRY N. MAUDOORIAN
THOMAS J. WYLLIE
Cigna C o p
Admnr&.Rme
TO THE HIGH COSTS OF LITIGATION
Publisher
James F. Henry
Editor
Russ Bleemer
Staff Editor
ELizabeth 5. PLapinger
Alternatives t o the High Costs of Litigation
(ISSN 0736-3613) i s published monthly
by the CPR Institute for Dispute Resolution.
Editorial and Business Offices:
Even for courts with small or no current ADR
program, the act doesn’t come as a shock. Most
of the nation’s 94 federal courts already have
an ADR program, however informal. The
courts have been talung small steps on ADR
use for years. In the mid-l980s, both the
(continued on page 15)
366 Madison Avenue,
New York, NY 10017-3122.
Tel: (212) 949-6490.
E-mail address: cAlternatives@cpradr.org=-.
Internet: www.cpradr.org
W 9 9 . For permission to reprint bylined
articles, please contact both CPR and the author.
(continued from previous page)
implicates an important legal or ethical norm,
the ethics consultant will inform the disputants about the norm and urge its inclusion
in the resulting agreement.
In the dispute described at the beginning of
this article, the ethics consultant would inform
Joan and Charles that, ethicallyand legally, the
vendation decision must be made according
to the “substitutedjudgment principle,”which
requires the decision to be made as Mary would
have made it, ifshe were competent to speak. If
it is impossibleto determine what Mary would
have wanted based on her words, action and
lifestyle choices, then both law and e h c s require the decision be made according to Mary’s
best interests. Having notifiedJoan and Charles
of these norms, the ethics consultantwould then
facilitate a discussion ofwhat Marywould have
wanted, or, if that cannot be discerned with
any certainty, what would best further Mary’s
interests.
Legal and ethical norms, then, often play
a central role in this form of mediation. Still,
once these norms are articulated and accepted
as crucial to any outcome, mediation still is
necessary to arrive at agreement as to how
these generalized and abstract principles
should be applied in the case at hand.
The mediation practiced by ethics consultation in hospital wards is somewhat nontraditional in that the parties are not
accorded the freedom to resolve the dispute
in any manner they see fit. Often disputants
negotiate within the boundaries imposed by
well-accepted ethical and legal norms. This
norm-bound mediation-which this author
has termed norm-advocating in these pages
(see “Seeking Clarity for Ethical ADR Practice,” 15 Alternatives 153 (October 1997))
and elsewhere-is no longer rare. Civil
rights, disability and environmental disputes
are mediated according to this model.
Though they have detractors, the development of these new varieties of mediation
is positive. They reveal that even in disputes
that require the enforcement of important
norms and values, mediation has a role to
play. After clarifying the ethical issue at stake
and discussingthe abstract norms that should
guide resolution, the ethics consultant then
employs traditional mediation interventions
and techniques in an effort to help the parties choose which among the range of legally
and ethically acceptable options will best
meet their needs. Mediation skills belong in
this sort of case; their utility should be applauded and their use encouraged.
i
Courts Study Dispute Resolution Law
(continued from page 2)
Brookings Institute and a Congressionalcommittee studied the future of the federal courts.
The institute endorsed judicial involvement
in ADR processes, while the commission said
that the courts should be allowed to experiment with ADR.
Those recommendations were put into
1990’s Civil Justice Reform Act, which required all districts to reduce costs and delay
in civil litigation. ADR was one of six case
management techniques written into the law;
consequently, most court ADR programs have
begun since the law passed. About two-thirds
of the nation’s federal courts have a formalized ADR program, based on local rules and
case management practices or by judges’ order.
After the 1990 act expired about two years
ago, the Judicial Conference recommended
to Congress that the ADR experiments be
continued. After a false start and a year of
wrangling, Congress sent the bill, sponsored
by North Carolina Republican Rep. Howard
Coble, to the president last fall.
Steenland says that he has had several calls
about the act’s implications from U.S. attorneys around the country. So have the agencies named in the act’s text to help courts with
implementation. The Office of Court Administration, said Mark Miskovsky, has fielded inquiries since the law was signed. He says most
courts are now setting up committees to review the law and implementation steps.
Donna Stienstra, senior researcher at the Federal Judicial Center, which is the Judicial
Conference’s training and research arm, also
says that court officials have been calling the
center‘s Washington office with a variety of
questions about the act.
The act’s Section 651(f) authorizes the
court administration office and the center to
“assist the district courts in the establishment
and improvement of alternative dispute resolution programs by identifyingparticular practices employed in successful programs and
providing additional assistance as needed and
appropriate.”
Officials from the two agencies met in
December to hash out steps. At press time,
Stienstra said her office was preparing a letter
for all federal courts outlining the act’s provisions and the resources that the center can
provide to help courts establish programs. She
said the letter was expected to be sent to the
courts just before the new year.
The center‘s next act-related project, according to Stienstra, is a half-hour video program on local rule writing for judges and
administrators to be sent via satellite to d l
the federal courts over the judiciary’s in-house
network. She said that this month the center
will be enlisting faculty and preparing the
presentation, adding that she hoped it would
air around the end of February.
Stienstra said her personal view is that the
act’s requirement that local rules must be
written to install the act’s provisions is “where
particular attention” needs to be placed.
Confidentiality rules, she said, “can be a
tricky area.”
Others in the ADR field agree. Conflicts
and confidentialityissues are “twoareas the past
decade has told us require careful attention and
may be suitable for model rules,’’ says Elizabeth Plapinger, who directs CPR’s Judicial
Project,which is usingsome recent grant funds
“to support a series of initiatives to assist courts
to fulfd their [act] obligations.” [SeeCPRNews
item on page 12 for more details on the grant.]
Plapinger and Stienstraare coauthorsofa 1996
joint CPR-Federal Judicial Center book project,
“ADR and Settlement in the Federal District
Courts.”
CONCERNS ABOUT DOLLARS
But when asked to list their first area of concern about the act, ADR practitioners most
frequently raise the money issue. The ADR
officers required by the act, for example, need
to be funded. Moreover, the act requires that
courts set up at least one program. While the
wording gives the courts broad flexibility,the
program still must be formalized and comply
with Congress’s requirements. Though many
will use current programs as a starting point,
experts say it’s likely that even longstanding
court ADR programs will need more money
to build quality processes.
The Clinton Administration last month has
said that there will be little money for new
domestic initiatives in the budget it is preparing for the fiscal year beginning Oct. 1. Moreover, paying for the program isn’t really the
executive branch‘s problem. “There are some
grave concerns about Congress legislating at
this level, of the courts’,’’ said Plapinger, who
also is Alternatives’ staff editor.
Indeed, Peter Steenland J . at the Justice
Department says that the department “adheres
to its traditional position of not malung any
(continued on following page)
Courts Eye New Law
(continued from previous page)
statement with respect to how funding should
be allocated within the judiciary based on notions of comity and other principles.”
That leaves the matter to the Judicial Conference, which will meet this spring for the
first time since the act’s passage and likely will
discuss funding related to the agencies named
in the act. Officials at the Federal Judicial
Center and the Office of Court Administration declined to comment on funding issues.
Judge Hornby of the conference’s court administration committee was on trial and unavailable for comment.
Some tinkering may suffice to make existing programs comply. Future initiatives, however, will need dollars. “There are real costs
involved in designing, implementing, managing and evaluating court-annexed ADR,” said
Bill Drake, executive director of the Western
Justice Center Foundation, a Pasedena, Calif.based research organization focusing on ADR
and justice issues, mostly on courts in the Ninth
Circuit. The Office of Court Administration
and the Federal Judicial Center will need funding to do their jobs adequately,he said, asking,
“What amount ofcompliancewith the act, and,
more important, what quality ofprograms, can
Congressexpect ifdistrict courts receive no additional appropriation to establish initiatives?”
Stephanie E. Smith, a former director of
the ADR program for California’s northern
federal district court, which is in the Ninth
Circuit, agrees. She said she sees no downside
to the act, but she is concerned about support for staffing and training. “Both need
strong programs,” she said.
The act requires that neutrals be qualified
and trained by the courts. ADR practitioners
contacted for this article agreed that some
court investment will be necessary. But one
area the courts may not need to pay for is the
neutral’s work: The act‘s Sec. 658 doesn’t require neutrals to be compensated for their
work. It leaves open future regulation by the
Judicial Conference.
OPTIONS FOR NEUTRALS PANELS
In fact, at one time court-appointed neutrals
rarely received pay. Now, many courts provide either for fees and for parties to pay
neutrals. Smith, who is a lecturer at the
Stanford University Law School, says that the
actual method of providing neutrals is ambiguous, and leaves discretion in the courts
to establish neutrals’ panels. She said it ap-
pears that courts may enlist outside providers, or set up their own panel. Smith added
that the last part of Sec. 653(a), which says
that “[elach district court shall promulgate its
own procedures and criteria for the selection
of neutrals on its panels,” may mean that
Congress wants an internal group.
Bill Drake said that he favors ADR systems
using volunteer neutrals, and that “Congressis
wise” to provide for both paid and volunteer
neutrals. He said that “fivebasic models” ofcourt
ADR have been studied recently by researchers,
and the methods that will be adopted generally
will be one of the five--or hybrids.The models,
said Drake, are in-house mediation by courtemployed mediators; court contracts with nonprofit organizationsthat use volunteers;private,
court-paid mediators; volunteer mediators supervised by the court, and private mediators paid
by the court. “Any of these approaches may be
appropriate and effective,” said Drake.
Duane Krohnke, a partner in Minneapolis’s
Faegre & Benson who watches ADR issues
closely (see his article on court cases on page
l),suggests a hybrid. He said that federal courts
could use listings from rosters already established by state courts to construct their own
panels. That, he notes, would be the “easiest
way to implement this directive,”provided the
state already has a panel.
The Justice Department’s Steenland said
that there are a couple of federal court ADR
programs that he intends to cite as examples.
One is the California northern district, which
is known for its “multi-option’’ADR program.
Another is Missouri’s western district, which
has pioneered early neutral evaluation, or
ENE, ADR programs.
Steenlandsaid that the ADR elements those
courts display and which programs under the
new law will need to succeed, are the strong
support of the bench and bar; highly qualified
neutrals; and administration by ADR professionals. The goal, he explains, is for the federal
courts to “be very careful in this to construct
and authorize a program wholly separate from
the settlement conferences.” For example, he
said that a mediation program must provide
litigantswith a settlementoption that “complements and is distinct from the existing regime
of settlement conferences.”
COMMON LAW DEVELOPMENTS
Praise for act’s intentions is uniform despite
its implementation challenges, even among
court system employees not thoroughly familiar with ADR processes. Stanford’s Smith, for
example, said that the act is “a really strong
endorsement by Congress of the appropriateness and benefits that can come from ADR.
Its focus is really service to litigants.”
And it’s not only litigants who will be
helped by act. Duane Krohnke suggested that
the act will help ADR. He points out that the
case of Folb v. Motion Picture Indus. Pension
&Health Plans, 16 F.Supp.2d 1164 (C.D. Cal.
July 8, 1998) cited the act‘s confidentiality
provision even before it had been passed: The
act’s Sec. 652(d) requires local rule makers to
provide for ADR confidentiality “and to prohibit disclosure of confidential dispute resolution communications.”
Krohnke noted that enactment of the federal ADR law “will be influential in the further development of the common law of
ADR,” and that the Congressional findings
supporting ADR “can be cited in various contexts on ADR issues.”
But back at the courts,Congress’s finding on
ADR’s docket-reducing potential is most resonant for some. Norman H. MeyerJr., chiefderk
ofVirginia’seastern district federal court in Alexandria,Va., focused on the case disposition theme.
Until now, the district has not had a formal ADR program. “Now with the new law,”
said Meyer, “we’ll see what route it will take.
He added “I’m well aware of the arguments
on the different styles of resolution, and there
might be some merit on that side. But on the
speed side, this court is already there.” He said
the average time to trial in the district is eight
months, and average disposition time is five
to six months. For that reason, Meyer says
that his court‘s program under the new law
“will probably not be anything really super
high-powered.”
He also noted that it is still early. Meyer said
the district’s chief judge, Claude M. Hilton, is
consideringappointments to a committeeto mry
out the law. One judge has volunteered, he said,
but no meeting had been set at press time.
In Alabama, middle district court clerk
Thomas Caver explained that his court‘s voluntary mediation program, about two-anda-half years old, is managed by four magistrate
judges. “It has grown tremendously,” he said,
noting that currently about 20% of the court‘s
cases have gone to mediation, and about half
of those have settled.
The magistrate judge who oversees the current program, Charles s. Coody, declined to
comment on what effect the new law will have
on its still-young program. But Caver, though
he noted that it is too soon to tell, quickly added,
“I don’t think we’re going to do anything much
p
different than we’re already doing.”
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