New Law Boosts Use Of ADR In District Courts

This article originally appeared in the April 1999
issue of Consensus, a newspaper published jointly by
the Consensus Building Institute and the MIT-Harvard
Public Disputes Program.

The Alternative Dispute
Resolution Act of 1998 (ADRA) signed into law
in October 1998 by President Clinton expands upon
previous legislation regarding the use of ADR in
federal district courts.

Specifically, the new ADRA mandates each court
to authorize the use of ADR in all civil actions,
create its own ADR program, evaluate existing ADR
programs, and designate an employee or judicial
officer to administer the program.

The ADRA was created in the spirit of reducing
caseloads in the backlogged federal district
court system, according to its congressional
sponsors. In addition, it seeks to provide easier
access to a low-cost and less time-intensive
method of resolving disputes.

Federal court observers say it’s still too
early to tell whether the law will accomplish
these goals. And some are skeptical about how
much change will actually occur.

“I don’t think (the new law) is going to
have a dramatic impact,” said Chuck
Loughran, Assistant Circuit Executive for the
Nineth Circuit. He said the law doesn’t clearly
define “ADR,” so it’s unclear whether
or not “settlement conferences” – which
are very common – will count toward the
requirements of the law.

“Most of the judges (involved in
settlement conferences) aren’t true mediators in
the facilitative sense,” Loughran said.

The other main problem, Loughran said, is that
Congress has not appropriated any specific
funding to carry out the activities authorized by
the law. “We are trying to figure out how
courts can get a program up and running without
any additional funding,” he said.

Resistance remains

Loughran and other observers also noted that
some district court judges are more enamored with
ADR than others. “There is a certain amount
of resistance out there,” Loughran said.

Despite these obstacles, Loughran and others
praise the law for formalizing the courts’
commitment to ADR.

Peter Steenland, Senior Counsel for Dispute
Resolution at the US Department of Justice, for
example, told CONSENSUS that he sees three main
accomplishments of the ADRA.

First, he said, the law expands upon the Civil
Justice reform Act by giving statutory authority
for courts to establish and sponsor ADR programs.
In other words, the courts don’t have to rely on
inherent authority.

Second, Steenland believes that the mandate to
designate an official who will administer the ADR
program in each court is a step in the right
direction. The responsibility to manage ADR
efforts will not just be an ancillary function of
an unrelated office.

Finally, the ADRA puts responsibility on the
court to offer ADR as an alternative to litigants
in all civil cases at the appropriate time. The
courts’ discretion in choosing this time
maintains the flexibility inherent in ADR
processes. Steenland believes this flexibility is
very important to the users of ADR, who should
perceive the process as beneficial, not as one
more obstacle to achieving resolution.

Kirk Emerson, director of the US Institute for
Environmental Conflict Resolution, sees the ADRA
as a positive step towards professionalization of
the dispute resolution field. However, she
believes that the ADRA lacks sufficient clarity
on confidentiality issues. For example, it does
not specify under what circumstances a mediator
can be subpoenaed about information disclosed in
the ADR process.

A variety of activities have begun to take
place around the country to implement the law.
Loughran said the Nineth Circuit’s “ADR
Committee” (formed, coincidentally, a year
before the law was passed) is working to help
their 13 district courts comply with the law. The
committee has ten members, including respected
ADR advocate Judge Wayne Brazil. Committee
members are currently drafting a model local ADR
rule and are talking about how best to be helpful
to district courts (by holding a conference,
forming a consulting team, etc.)

The Federal Judicial Center, a research and
education agency in the judicial branch, has also
been helping district courts determine how to
comply with the act, according to the FJC;s Donna
Steinstra. For example, they recently broadcast –
on a closed-circuit television system accessible
to all of the district courts – an information
program about the requirements of ADRA.

In general, it is hoped that the ADRA will
mean easier access to ADR services, which is good
news for litigants and professional mediators
alike. Not only will mediation services be in
higher demand, but the field as a whole gains
some clout as a viable alternative.

                       

Jennifer Thomas-Larmer

I write and edit sustainability and corporate responsibility reports for clients such as Ford Motor Company, Kellogg Company, Nike, Waste Management, Darden, Novelis, and International Flavors and Fragrances, among others. This work is done in collaboration with BuzzWord, a sustainability strategy and reporting firm (www.gobuzzword.com). Also, edit web content, reports,… MORE >