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from Lawyers Weekly, December 8, 2003
Court-Connected Neutrals Will Face Strict Standards
Non-Lawyers Do Qualify Under The New Rule
By Jason M. Scally
Providers of court-connected alternative dispute resolution services will soon have to meet detailed qualifying standards under a new rule announced by the Supreme Judicial Court last week.
Under Rule 8 of the Uniform Rules on Dispute Resolution — the last of the Uniform Rules to be passed — ADR programs providing mediation, arbitration, conciliation and other related services will have until Jan. 1, 2005 to meet the new training and evaluation criteria required in order to become a court-approved program in Massachusetts. (The full text of the rule can be found under News From The Courts, page 24.)
Neutrals providing dispute intervention services, however, will have until Jan. 1, 2007 to comply with the court's new ADR rule.
Notably, the rule does not prohibit non-attorneys from providing services as a neutral in areas of ADR such as mediation and arbitration — an issue that some members of the court committee assigned to study the issue said had been widely debated.
However, the rule does impose professional and/or licensure requirements on those seeking to be conciliators, case evaluators, mini-trial neutrals and summary jury trial neutrals in Massachusetts.
Rule 8 should also not affect experienced ADR practitioners as it provides a "grandfather" clause that will allow the court to exempt certain providers from the training and evaluation requirements.
Initial reaction to the rule was positive, although some questioned its impact on the already well-established ADR market, noting that most clients seeking ADR services go directly to the providers themselves, rather than through the courts.
However, others said that a set of guidelines could be the first step to ensuring the "professionalization" of a nationally unregulated, but widely used service.
Seven Categories Defined
The long-awaited rule, which had been debated over the years by various incarnations of a court-sponsored standing committee on the ADR rules, was finally issued to "foster high quality dispute resolution services … in court-connected programs."
Under Rule 8, the court listed seven categories of ADR "neutrals," each with its own qualification requirements. (See sidebar for a general overview of the requirements.)
The seven categories include:
- mediators
- arbitrators
- conciliators
- case evaluators
- mini-trial neutrals
- summary jury trial neutrals, and
- dispute intervention neutrals.
Under the rule's "Limited Exemption From Training, Mentoring and Evaluation Requirements," experienced ADR practitioners will not have to meet many of the rule's requirements.
The "grandfathering" exception provides a "one-time exemption" option that will only be open to "those mediators, arbitrators, case evaluators and conciliators who meet [certain] requirements." (Also listed in sidebar.)
Some neutrals may also be able to qualify under an "alternative method."
Superior Court Judge John C. Cratsley, chairman of the Standing Committee on Dispute Resolution, explained that the "alternative method" was included to benefit the "lawyers or non-lawyers who feel their experience alone should carry them through the approval process."
But for those who don't qualify under the limited exemption or other "alternative methods," the full force of Rule 8 will apply.
All of the categories, with the exception of the summary trial neutrals, will require some kind of training, mentoring, education and evaluation requirements.
For example, in order to qualify as a mediator, one will have to complete a basic mediation course of at least 30 hours and a court orientation. On top of that, the court will require documentation of regular evaluations and evidence of continuing education.
Arbitrators will have to comply with similar rules, but only eight hours of basic arbitration training will be required.
Summary trial neutrals will not have a mentoring requirement, but like conciliators, case evaluators and mini-trial neutrals, they will have a "professional qualification[]" requirement where only attorneys or former judges may qualify.
In all cases, the rule requires that the ADR programs themselves will be responsible for making sure that their neutrals meet the requirements. However the chief justices of the Trial Court departments will have the authority to remove a program from its rolls if the program refuses to act on a complaint.
Although the rule for most ADR practitioners will apply in January 2005, the application process can be expected to start sooner.
Timothy M. Linnehan, the ADR coordinator for the administrative office of the Trial Court and a member of each incarnation of the standing committee over the years, said that before the effective date, he expects his office will begin working on the "mechanics of the rule," which essentially will entail drafting the forms that will become necessary for the application.
Compromise Reached
Members of the Standing Committee that studied the issue of neutral qualifications said that the reason for Rule 8's delay was, in part, because of the controversy over two issues: whether or not everyone should undergo some basic training and whether to allow non-attorneys to be part of a court-connected ADR program.
The "grandparenting" clause, as some call it, was the result of a compromise within the committee.
"Some of us thought everybody should get basic training, even people who have been doing it," said Frank E. A.. Sander, a professor at Harvard Law School and a member of the Standing Committee. "But in the end, we left room for some limited one-time grandparenting."
Linnehan added that the "alternative methods" clause was also a compromise solution designed to help out other experienced practitioners.
He explained, for example, that it will allow people who provided ADR training for a number of years to be qualified, even though they may have technically never received training themselves.
"I think it's good," said Charles P. Doran of Boston, a non-lawyer mediator who was a member on a prior version of the court's committee. "It recognizes that there are many qualified practitioners whose experience can be recognized."
While Doran said he thought the grandfathering requirement of 300 hours for a mediator was "a little low," he said "it's still in the interest of maintaining quality in an uncertified and unlicensed field."
Paul A. Finn of Brockton, an experienced mediator, added that "having the grandfather clause means to me that they were listening to what the private providers had to say."
The issue of whether or not to allow non-attorneys to be qualified under the rule divided the committee for a "number of years," said Cratsley, who explained that the committee offered the SJC three alternative proposals on that issue.
The one that the SJC finally adopted, however, was the majority opinion, added Cratsley.
Sander said it was a prudent rule because "there are many cases where someone who has a planning background, for example, might be much more effective if he or she knows something about mediation too."
He added that the rule allows individual judges to require an attorney-neutral on a specific case, but as a general requirement, they decided against a rule that would have banned non-lawyers across the board.
Any Effect?
Most interested parties had nothing but praise for the new rule, which they said was a step in the right direction in terms of regulating a largely unregulated profession.
"There is no uniform certification on a state or national level for ADR professionals," said Doran. "This is one step towards the professionalization of the field."
But some questioned the utility of the rule since the market trend has been moving towards privately contracted ADR and away from court-connected ADR.
"If one is looking for a qualified neutral, these are good guidelines for one to follow," said Christopher P. Kauders, an ADR professional and attorney in Boston. "However, it should be noted that these guidelines won't affect the ADR community materially because very few cases are being handled by court programs."
Finn noted that in all his years of practice and as a program on the courts' lists, "It's just an observation, not a criticism, but I don't think we've had one case referred to us through this program."
But others defended the rule, despite the current state of the ADR market, because of the almost-compulsory nature of court-connected ADR.
"Even though we don't have a mandatory requirement for ADR, there's still a feeling that if a court says you should mediate in this case, you should mediate," said Sander, noting the often-persuasive effect of a judge's suggestion. "There has to be some quality assurance behind that."
He added that while many "sophisticated players" may choose and can afford private ADR, others need the more obtainable option.
"It's like the post office with Federal Express," Sander explained. "Federal Express is great for the people who have the money to pay for it, but it's not an argument for eliminating the post office."
Others agreed that the public utility of having "qualified" ADR practitioners was an important concept to remember and a main reason for the rule.
"We hope [these ADR rules] will accomplish a sense of public confidence that when they use one of these court-approved programs, they can be assured that the people who do the work are qualified," said Cratsley.
Questions or comments may be directed to the writer at jscally@lawyersweekly.com.
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