Just Court ADR by Susan M. Yates, Jennifer Shack, Heather Scheiwe Kulp, and Jessica Glowinski.
What characteristics do you think are shared by quality court ADR programs? I took a swing at a list here. What would you add? Change?
There must be a shared understanding of the goals of the ADR program so that there can also be a shared understanding about whether it is succeeding.
- The court must be clear about its goals for the ADR program
- Those goals must be shared with stakeholders
The ADR program must operate on a common set of foundational principles, including ethics as appropriate for the ADR process being provided.
- Confidentiality (in mediation)
- Fairness of process
- Fairness of outcomes
- Procedural justice
- Neutral quality
- Self-determination (in mediation)
Everyone – including litigants and lawyers – must be able to readily access the ADR program.
- Parties who are unable to pay for ADR are afforded the opportunity to use ADR
- Parties who are representing themselves are able to participate fully in ADR
- Parties with disabilities are able to participate fully in ADR
4. Process Quality
Notwithstanding the importance of other characteristics, the true quality of a court ADR program boils down to what happens during each ADR session.
- Whichever ADR process is being used, it adheres to the foundational principles of that process
- Participants have an experience of procedural justice when engaging in the ADR process:
- They feel they had a voice in the process (e.g., had a chance to talk, felt they were heard)
- They feel they were respected in the process
- They feel the process was fair to them
5. Program Support
The ADR program will only succeed if it receives steady support from a number of sources.
1. Stakeholders understand and support the ADR program
- Court staff
2. The program has sufficient, stable financial support
Neutrals are the face of the program to litigants and lawyers, so they must provide quality services.
- Neutrals share a common understanding of the service they are to provide
- Neutrals provide services in the manner expected by the program and its stakeholders
- Neutrals operate in an ethical manner
- Neutrals have the necessary skills and knowledge
- Neutrals are selected for the roster fairly
- Neutrals are appointed to cases in a fair manner
- Neutrals receive appropriate initial and ongoing training
- Neutrals provide a sufficiently uniform version of the ADR process
- Parties have a way to lodge complaints about neutrals
- Neutrals are treated fairly when a complaint against them is made
- Neutrals are compensated fairly (which does not preclude volunteer mediators)
- Neutrals are assessed fairly
- Participant surveys
- Peer review
Lawyers must support, or at the very least accept, the ADR program.
- Lawyers are often repeat users of the ADR program, therefore their support is especially important
- This applies equally to those who typically represent one side or the other, e.g., landlords’ lawyers and tenants’ lawyers.
- Lawyers should:
- Find the program useful
- Be educated about the program
- Fulfill their responsibilities in the program
8. Program Safety
ADR processes must be safe, both literally and figuratively.
- Participants, neutrals and staff are all safe when participating in ADR and otherwise interacting with the ADR program
- Participants are screened prior to ADR, when appropriate, to identify intimate partner violence and other potential barriers to participation
9. Data Collection and Dissemination
Reliable data must be collected regularly and shared appropriately, or it won’t be available when it is time to sustain or improve the ADR program.
- Data is collected regularly and includes both quantitative and qualitative information (e.g., statistics and success stories)
- Changes in the program are tracked and acted on, e.g., changes in:
- The number of cases being sent to ADR
- The number of agreements being reached
- The number of mediators signing up to mediate
- The number of parties showing up for ADR sessions
- Data is turned into reports that can be readily digested
- Easy to read
- No use of insider language or acronyms
- Fitting use of charts and other visuals
- Reports are adapted to their particular audience and disseminated appropriately, typically as follows:
- Judges and court administrators with direct responsibility get the most detailed reports
- Those higher up in the court system get summaries with explanations
- Funders’ reports depend on what the funder requires. They may also get some anecdotes about how parties are experiencing the program.
- Reports include recommendations for action when appropriate
- The program is evaluated near the end of the first year, after a substantial period of time, or when there has been a major change in the program or the context in which the program operates
10. Program Promotion
Reminding stakeholders of the value of the ADR program will help maintain its support.
- Brochures are made available in courtrooms and other locations as needed
- Brochures are only produced if they will serve a particular purpose, such as giving parties the number they need to call to schedule a mediation
- If brochures are targeted to self-represented litigants, they must be in easy-to-understand language
- News about the program is publicized via:
- Local radio, TV, newspaper, news websites
- Court newsletter
- Bar association newsletter
- Program is featured on appropriate websites
- Information about the ADR program can be readily found on the court’s site
- If the program maintains its own site, instead of appearing as part of the court’s site, it must be easy to find and navigate and kept up to date
- As members of stakeholder groups change, the new individuals are familiarized with the program
- Judges are educated on how it works, ethical limitations, what to expect
- Lawyers, e.g., child protection attorneys, assigned to courtrooms are trained in how to use the program
- Staff at funders are educated about the program’s benefits and history
- Court staff are educated about the program’s benefits and how it fits into court processes
11. Program Administration
Someone wakes up every morning with the feeling that it is their job to do everything on this list to ensure the quality and continuity of the ADR program.
- Individuals with power over the program, e.g., funding or case referrals, are kept informed about the program
- The ADR program operates in accordance with applicable laws, court procedures and rules
- The program functions efficiently and effectively, e.g.:
- Cases are referred to ADR in a consistent manner
- Cases are scheduled promptly
- Reports are provided to court on time
- The benefits provided by the ADR program are reasonable in relationship to the costs of the program
- Changes in the program are tracked and potential responses suggested when needed