UNIFORM RULES CLARIFY PROCEDURES OF ALTERNATIVE DISPUTE RESOLUTION

           “Does anyone here want to try mediation?”

          It was morning at Quincy District Court,  and Assistant Clerk Maurice R. Horrigan, Jr. had finished assessing which defendants and plaintiffs in summary process cases were present.

          In response to his question several people approach the bench, including Charles P. Doran, Executive Director of the non-profit Mediation Works Incorporated.  Within minutes, Mr. Doran and his co-mediator, Ellen B. Carno, are matched with a landlord and a tenant who are in a dispute over back rent, and they all go upstairs to a conference room to discuss how the course might be settled. 

          Mr. Doran starts the session by emphasizing that participation is voluntary; that the mediators’ role is strictly that of neutral facilitators and not one of deciding right and wrong; and that the discussion is a chance for the disputants themselves to decide the issue, rather than have a decision imposed by the court.  Ms. Carno adds that  the discussion is confidential, and that the mediators will destroy their notes once it is over.

          Over the next hour, the mediators help clarify what each side needs from the other.  After thorough discussion of all the points of conflict, the two sides agree that the tenant can remain in the apartment, but that the landlord will retain for six months the right to gain enforcement of an eviction notice within forty-eight  hours of a late rental payment.  They also agree on a schedule for paying the overdue rent and on the details of when and how future rents are to be paid.

          Mr. Doran writes the agreement on paper, everyone signs it, and they file it with the court clerk.  As the landlord and tenant prepare to leave the courthouse, they smile and shake hands.

THE UNIFORM RULES

          The mediation session in Quincy is an example of Alternative Dispute Resolution (ADR), which also includes such methods as arbitration, conciliation, dispute intervention, and case evaluation – all intended to resolve cases before they reach a courtroom.  Because of its many benefits to the public and court system, ADR is becoming more common throughout the Massachusetts Trial Court.

          Although ADR has been used by the Trial Court for decades, particularly by the Housing Court and the Probate and Family Court, the Judicial Branch’s effort to establish a statewide system for court-connected ADR began in 1993.

          That year the Supreme Judicial Court, in consultation with the Chief Justice for Administration and Management of the Trial Court, issued a policy statement recognizing ADR as a “fundamental change” from the traditional process of adjudication, and established a standing committee to determine how to effect court-connected ADR, defined as dispute resolution services provided as the result of a referral by a court.

          Under the leadership of its first chairman, Charlestown District Court First Justice Peter W. Agnes, the Standing Committee on Dispute Resolution by 1996 specified the benefits of ADR and laid out a blueprint for creating a system of court referrals.

          The committee’s extensive studies resulted in the Uniform Rules on Dispute Resolution, which state that they are intended “to increase access to court-connected dispute resolution services, to ensure that these services meet standards of quality and procedural fairness, and to foster innovation in the delivery of these services.”

          The Supreme Judicial Court adopted the Rules in May 1998, with the first four taking effect the next month, and four more taking effect in February this year.  Also in February, membership of the Standing Committee was reconstituted, with Superior Court Judge, John C. Cratsley as chairman.

          Judge Cratsley says one goal of the Rules is “to give people information about ADR as soon as they or their attorneys step into the court.”  Rule 5, he notes, calls for clerks to make information about ADR available to people with business before the courts.  The Committee has written a brochure and distributed copies to all courts to help accomplish that purpose.

          The Rule also obligates attorney to discuss ADR’s advantages and disadvantages with their clients.  The Trial Court has promulgated a form that attorneys will be required to file with the court, attesting that their clients have been briefed about ADR options.

          Another significant element of the Rules are provisions for establishing a list of court-approved ADR providers.  As of February, each court can refer cases only to programs that it has approved, except in cases of exceptional circumstances.

          In addition to private, non-profit groups such as Mediation Works, the list of approved programs also includes services operated by universities, bar associations and community groups, as well as programs provided by court employees such as probation officers.

          Judge Cratsley also emphasizes that the court-approved providers are not the only option.  “We also want parties to understand that if they wish to choose a private ADR provider outside the court and outside the approved list, they can do that.”

APPROPRIATE CASES

          The kinds of cases that may be suitable for ADR constitute a broad category.  “Mediators tell us that virtually any dispute can be mediated, if the case is reviewed by a thoughtful person,” Judge Cratsley says.  “I think that’s one of the benefits of having these approved programs.  We know they have the ability to talk to lawyers, clients, and pro se litigants about why their particular dispute might cause mediation to be helpful”

          He notes, however, that ADR has traditionally been seen as especially appropriate for cases in which the disputants will have a continuing relationship after the case is settled, such as in disputes within the same family, business community, or neighborhood.

          Even some criminal cases, such as vandalism or assault, can be sent to ADR, with the consent of the District Attorney.  “These are cases in which people may have been very passionate at the moment the conflict happened, but in which people upon reflection decide they ought to try to get along together because they have to live in the same neighborhood, work at the same job, or travel the same streets,” Judge Cratsley says.

BENEFITS OF ADR

          One of the main reasons for referring cases to ADR is clients’ high degree of satisfaction with it.  A May 1997 study commissioned by the Standing Committee found that ninety-seven percent of attorneys and ninety-one percent of litigants whose disputed were referred to mediation by Superior Courts in Middlesex, Norfolk, and Suffolk counties were either completely or mostly satisfied with the fairness of medication.

          “People like this process,” Judge Cratsley says.  “People feel respected, they feel like they participated, they feel like they got a better shot at actually collecting their money because the other side agreed to pay rather than was forced to pay by the court.”

          When parties decide to pursue ADR, the courts continue to monitor the progress of the case.  “A key to success is to make sure that everyone entering mediation knows the date of the next court event, so that the case doesn’t fall to the wayside,” Judge Cratsley says.  That provides the parties with a deadline for making mediation work, or, if it fails, keeps the case progressing toward a trial.

          If the case is resolved, the agreement by the parties is simply filed with the court and the case is dismissed.  “Cases that are successful in mediation save us a huge amount of trial time,” Judge Cratsely says.  “Judges who have to set aside a week for a large personal injury case and then find that it’s mediated – that’s a lot of trial hours saved for somebody else’s case.”

          The time savings are particularly important to the Probate and Family Court and the Housing Court.  According to the “Report to the Legislature on the Impact of Alternative Dispute Resolution,” prepared by the Standing Committee last year, Probate and Family Court probation officers conduct about 35,000 dispute interventions each year, with an average settlement rate of about sixty-five percent.  The report says that without the probation officer’s mediation work, “it would be virtually impossible for the court to function.”

          ADR services provided by experienced, well-trained court personnel play a similarly crucial role in the Housing Court.  The report says that of about 10,000 Housing Court cases referred to ADR each year, eighty percent of summary process cases and fifty percent of small claims cases are settled.  The report notes that the ADR presence is a “practical necessity” for court department of nine judges serving in five divisions, as “it is physically impossible for a judge to handle all but a small fraction of these cases.”

          Even if a case, is not resolved through ADR, however, the parties and the courts can still reap significant benefits for having gone through the process. 

“My experience has been that mediation can help define what the actual tough issues are,” Judge Cratsley says.  “With the benefits of mediation, I may be able to help the lawyers settle the case on the eve of trial, or we may be able to narrow the issues that we’re going to put to the jury.  I think there’s a lot of enlightenment that comes through the mediation process.”

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