CAADRS / Accessing Justice - Pathways for Poor and Low-Income Disputants

ACCESSING JUSTICE: PATHWAYS FOR POOR AND LOW-INCOME DISPUTANTS

SUMMARY: This study examines barriers to and supports for the use of mediation to enhance access to justice for poor and low-income disputants in Illinois. It ends with a blueprint for creating such a system.

Creating a Successful Major Civil Case Mediation Program

SUMMARY: This article presents some of the lessons that have been learned throughout the state of Illinois in the implementation of major civil case mediation programs since 1993. These lessons include defining the goal of the program, understanding and conforming to Illinois Supreme Court expectations, , knowing the court’s role, promoting participation by the bench, the bar, and the mediators, and ensuring administrative and management support, including a monitoring system so that the program can be assessed and improved.

In the ten years since Illinois’ first pilot mediation program for large civil litigation cases began in Winnebago County. much has been learned. Some of the essential ingredients of successful court-annexed programs have been identified through the process of establishing programs in eight circuits and a federal court. This article presents some of the key lessons from their experiences.

DEFINE YOUR GOAL

The first step is to determine why a court is considering a major civil litigation mediation program. Is there a backlog in these cases? Is there a need for judicial resources in other areas that might be addressed by reducing the demand in the major civil area? Is there a desire for a process that will allow for a wider range of outcomes than is available through litigation? Is there a wish for a less contentious or potentially speedier process than litigation?

To define the goal and shape the program, one judge with leadership responsibility typically invites a representative group of lawyers, judges, and other experts such as local law professors to work on development of program rules. The process of drafting of the rules can be a useful exercise to design the most effective way to run a program based on local legal culture and the requirements of the court.

Once the goal is decided, the next question is whether a major civil litigation mediation program is the best way to accomplish that goal. If a court is not experiencing a significant problem handling major civil cases, the leadership may want to consider using alternative dispute resolution (ADR) mechanisms in other areas, such as domestic relations, juvenile or small claims. For information on these other options, contact CAADRS or review the program descriptions of ADR programs in the state.

CONFORM TO SUPREME COURT REQUIREMENTS

Perhaps the most significant change that has occurred since these large civil case mediation programs began was the implementation of Illinois Supreme Court Rule 99, “Mediation Programs.” Adopted in 2001, the rule authorizes judicial circuits to establish and maintain mediation programs, provided they meet certain criteria for approval by the Supreme Court. It also provides that mediators in approved programs have immunity in the same manner and to the same extent as judges.

With adoption of Supreme Court Rule 99, the requirements for court mediation programs in Illinois were defined. Local court rules must address (1) what will be referred to mediation; (2) appointment, qualifications and compensation of mediators; (3) scheduling mediations; (4) how mediations will be conducted; (5) discovery; (6) absence of a party at mediation and sanctions; (7) terminating and reporting on mediations; (8) finalizing agreements; (9) confidentiality; and (10) how the court will report to the Supreme Court on the mediation program.

It is important to note that while Rule 99 lists ten items that must be covered in local rules, it does not define how those items are to be addressed. With more than a third of the circuits in the state having rules for major civil case programs, there are now many sets of approved rules to use as models when drafting local rules.

Rule 99 requirements provide a handy checklist of items to cover in creating a program. Some of these issues – such as sanctions for not appearing at mediation, or how inclusive the promise of confidentiality is – can spark heated debate. Other matters, such as reporting to the Supreme Court, may be less controversial, but do require careful thought and planning.

KNOW THE COURT’S ROLE

Judges need to consider why they are implementing a court-related mediation program. After all, parties are free to contract with independent mediators to assist them in settling their case. In addition, today judges often view settling cases to be as central to their work as trying cases. Why, then, would a court take on this added responsibility?

For many judges the answers to this question relate to control, effectiveness and efficiency. By having a court-annexed mediation program, judges typically have a list of approved mediators to whom they feel they can safely refer cases. They know generally what type of process will be used and they have rules in place regarding policy issues such as confidentiality and voluntariness. By referring to mediation the cases that may settle, judges are freed to turn their attention to the cases that need adjudication.

While a court-related program is likely to provide some solutions, it will also require that judges take on a new role as gatekeepers. They must determine when cases are ripe for mediation and deal with questions (and often skepticism) from lawyers. In addition, one judge will also typically have oversight responsibility for the program as a whole.

PROMOTE PARTICIPATION

The commitment of three constituencies is essential to the success of a major civil litigation mediation program. They are the bench, the bar and the mediators.

Judges: Obviously, a court-annexed mediation program will succeed only if judges refer cases to it. (None of the Illinois programs has mandated that all large civil cases go to mediation.) Judges need orientation, training, and ongoing support. Some of these activities can be conducted in conjunction with mediator gatherings so there can be some cross-pollination among participants. As new judges take over these cases, they must be brought up to speed as well.

Lawyers: Even with judges referring cases, if lawyers do not accept the program, it will fail. Obtaining buy-in from leading plaintiff and defense counsel is an early step. Presentations to bar association gatherings and educational programs for lawyers – covering topics such as when cases might benefit from mediation, how much discovery is appropriate for a mediation (as compared to trial), and how to advocate effectively in this new setting – can be very helpful in developing program acceptance.

Mediators: Mediators are likely to be among the strongest proponents of these programs. They can play a valuable role in development of the mediation program by participating in it as both as neutrals and advocates. If every mediator on a court roster recommends mediation for a few of his or her own cases in the opening months of the mediation program, this will go a long way toward developing program momentum. Participating as both mediator and advocate also strengthens an individual’s abilities in each of those roles. To continue to enhance mediator effectiveness, the court will need to provide orientation sessions, ongoing supervision, and support.

ENSURE ADMINISTRATIVE AND MANAGEMENT SUPPORT

Most of the early mediation programs were built on successful court-mandated arbitration programs, which provided a convenient administrative infrastructure for the new mediation programs. An amendment to the “Illinois Mandatory Arbitration System” statute provides direction regarding the relationship of arbitration programs to other ADR efforts, including major civil litigation mediation, and the use of arbitration resources in these efforts.

Whether based in an arbitration program or not, courts have to determine how to track and manage individual cases and the program as a whole. Although mediation programs are not generally time-intensive for judges or court staff, they do require management. It is essential to have an administrative person who is responsible for the program, who will work with the judge who has oversight responsibility. Including the administrative person in the early steps of the planning process will typically improve the workability of the eventual rules as well.

Having started the program development process by setting a goal, progress toward that goal must be measured. Programs need an effective monitoring system to allow for ongoing improvement. Usually a court wants information on mediation timeframes (time from referral to mediation and from mediation to case closure, how many mediation sessions, etc.), whether the parties are satisfied with mediation, and the characteristics of cases that resolve as compared to those that do not (e.g., case type, mediator, referring judge.) Additionally, Supreme Court Rule 99 mandates regular reporting.

CONCLUSION

In each county or circuit, there will be particular political and economic considerations involved in implementing a successful major civil case mediation program. Supreme Court Rule 99 provides broad guidance, while still enabling local courts to adapt programs to fit those local factors. No matter what the local issues are, each program requires thoughtful investigation, program planning and development of commitment to the effort.

For hands-on expertise, any court considering a major civil mediation program would be well served by contacting the judges, court personnel, lawyers and mediators who have developed these programs and work with them every day. Information on existing programs is available at www.caadrs.org/adr/mediation.htm.

As always, CAADRS stands ready to assist in the development of mediation programs. Any court in Illinois is welcome to turn to CAADRS for technical assistance, training, development of monitoring and evaluation systems, and enthusiastic support.