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Cardozojcr.com\\jciprod01\productn\C\CAC\14-3\CAC308.txt Janet Martinez,* Sheila Purcell,** Hagit Shaked-Gvili,*** and Alternative dispute resolution (“ADR”) is practiced around the world with myriad approaches, though not without commonground. In an increasingly interconnected world, the sharing ofthis knowledge and experience has become a natural and even nec-essary step in the evolution of ADR.1 Professor Frank Sander, ofHarvard Law School, spoke at the Pound Conference in 1976 andposed the notion of the multi-door courthouse, a concept that ledto the development of ADR process options in courts throughoutthe country.2 The deliberate design of one or more processes for handling a stream of similar disputes has come to be known as “dispute sys-tem design.”3 Court programs that offer more than just trials, suchas mediation or summary jury trials, are one example. This Article * Senior Lecturer in Law and Director of the Gould Negotiation and Mediation Program at ** Clinical Professor of Law and Director of the Center for Negotiation and Dispute Resolu- tion at the University of California, Hastings College of the Law.
*** Directed the pilot ADR program at the Tel Aviv Judicial Court, and now provides profes- sional neutral services in Tel Aviv.
**** Justice of the Delhi High Court and Principal Secretary (Law and Justice) with the Govern-ment of NCT of Delhi. Ms. Shaked-Gvili and Justice Mehta were Weinstein International Fel-lows at JAMS, and Visiting Researchers at the Gould Program at Stanford Law School, 2008–11.
1 In the interest of facilitating an international exchange and ongoing network, JAMS founded the Weinstein International Fellowship Program in 2008 to sponsor ADR practitionersfrom around the world to study dispute resolution processes with scholars and practitioners inthe United States. See Weinsterin International Fellowship, JAMS ADR, http://www.jamsadr.
com/weinstein-fellowship/ (last visited Jan. 12, 2012).
2 Frank Sander, Address at the National Conference on the Causes of Popular Dissatisfac- tion with the Administration of Justice: Perspectives on Justice in the Future (Apr. 7–9, 1976).
3 Early leading authors on dispute system design are CATHY A. COSTANTINO & CHRISTINA SICKLES MERCHANT, DESIGNING CONFLICT MANAGEMENT SYSTEMS: A GUIDE TO CREATINGPRODUCTIVE AND HEALTHY ORGANIZATIONS (1995); WILLIAM URY, JEANNE M. BRETT & STE- PHEN B. GOLDBERG, GETTING DISPUTES RESOLVED: DESIGNING SYSTEMS TO CUT THE COSTS OF CONFLICT (1988). More recent literature on design theory and practice is found in the pub- lished volumes from the Ohio State University and Harvard symposia: 14 HARV. NEGOT. L.
REV. (Winter 2009); Symposium, The Future of ADR: Incorporating Dispute Resolution IntoSociety, 24 OHIO ST. J. ON DISP. RESOL. (2008).
\\jciprod01\productn\C\CAC\14-3\CAC308.txt 808 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 14:807 compares the experience of three diverse court systems at differentstages of ADR program development. The three court systems an-alyzed are courts in Delhi, India; Tel Aviv, Israel; and San MateoCounty, California. The first section briefly describes the origins ofeach court-annexed mediation program. The second section setsout a framework for analysis and then compares the three systemsaccording to these analytic elements. This Article concludes withsome observations on cross-cutting themes and trends for thefuture.
OVERVIEW OF THREE COURT MEDIATION PROGRAMS With a population of over 1.2 billion people, India is the most populated democracy in the world. The federal constitutional re-public consists of a multi-ethnic society where more than 400 lan-guages are spoken. Despite various autonomous arbitral bodiesand provisions for arbitration and conciliation for particular cate-gories of cases (such as labor and family), litigation in India contin-ues to rise. Currently, about thirty million cases are pending indifferent courts in India.4 With the present rate of disposal, itwould likely take over 300 years to clear the backlog. Litigationreflects increased legislation, commercial activities of state entities,and awareness of citizens’ rights, and thus, an increased demandfor the means to resolve such disputes.
Since independence, several governmental committees have advocated for a reduction in court debts, including judicial educa-tion to enhance the capacity of judges in order to improve the qual-ity of their output. Various arbitration and conciliation provisionshave been adopted but not fully implemented. The Legal ServicesAuthority Act of 1987 established the lok adalats, or “people’scourts,”5 throughout the country, which helped settle or otherwise 4 Neeta Lal, Huge Case Backlog Clogs India’s Courts, ASIA TIMES ONLINE (Jun. 28, 2008), http://www.atimes.com/atimes/South_Asia/JF28Df02.html.
5 Lok adalats have been established throughout India. Each is presided over by a retired judicial officer along with a lawyer and social worker. Cases, usually money disputes, are concili-ated to reach a settlement. There is no fee, and no appeal. Agreements are binding and can beexecuted through a legal process. See Marc Galanter & Jayanth K. Krishnan, “Bread for thePoor”: Access to Justice and the Rights of the Needy in India, 55 HASTINGS L.J. 789 (2004); Gregg \\jciprod01\productn\C\CAC\14-3\CAC308.txt dispose of a significant number of cases; however, litigation hascontinued to increase.
In 2002, the Ahmedabad Bar Association developed a pro- gram for dispute settlement by mediation, which was followed bythe setup of mediation programs in Mumbai, Chennai, andMadurai under Section 89 of the Civil Procedure Code.6 The Su-preme Court approved the Civil Procedure Alternative DisputeResolution and Mediation Rules in 2003. The former Chief Justiceof India, R.C. Lahoti, studied all existing efforts and decided toconstitute a Mediation and Conciliation Project Committee(MCPC) consisting of judges of the Supreme Court and HighCourt and Senior Advocates, to encourage mediation as the mostviable ADR option to address cases in the district courts. TheMCPC was constituted in April 9, 2005, with the objective of pro-viding centralized direction and support for mediation.
A pilot project was started in the Delhi district courts under the auspices of the National Legal Services Authority (NALSA),with trainers provided free of charge by the Institute for the Studyand Development of Legal Services (ISDLS) of California. A judi-cial mediation system commenced in September of 2005 in the TisHazari District Court, with six trained judicial officers assigned oneday per week, to deal with mediated cases. The disputants’ feed-back was positive, since the system was not only free of cost andexpeditious, but also friendly and devoid of the intimidation associ-ated with the formal legal process.
The initial success led to the establishment of the Delhi Medi- ation Center, which currently has four working centers at DistrictCourts in Tis Hazari, Karkardooma, Rohini, and Dworka, with afifth due to open in Saket. Each center is manned by a senior judi-cial officer of the rank of Additional District Judge, who adminis-ters the center and examines and assigns the cases for mediation tothe mediators.7 The summary statistics as of December 2012 are asfollows:8 F. Relyea, Mediation and Case Management: Legal Reforms Promise to Transform Legal Land-scape in India, 9 DISP. RESOL. MAG. 13 (2003).
6 Section 89 stipulates that arbitration, conciliation, judicial settlement, lok adalat and medi- 7 For current information, see DELHI MEDIATION CENTRE, delhimediationcentre.gov.in 8 General Statistics Report, DELHI MEDIATION CENTRE, delhimediationcentre.gov.in (last \\jciprod01\productn\C\CAC\14-3\CAC308.txt 810 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 14:807 The Israeli court system is a highly valued public service with an enormous annual caseload.9 A comparative study of judiciarycases in seventeen countries determined that Israel ranked highestin the number of cases submitted per population (600,000 cases peryear for a population of 7,645,000), sixth place in the number ofjudges per population (660 residing judges), and first place in judi-cial caseload.10 In order to cope with the heavy caseload and keep the public faith in the judicial system, the Israeli court system has undergoneextensive reform over the past decade. It has transformed itselffrom a traditionally adversarial institution with individual judgesworking independently of one another, to a more active system ofinterconnected departments. The direct result of the modificationshas been a significant relief of the overburdened judicial systemand substantial improvement of the system’s efficiency.
Based on British colonial law, the Israeli judicial system had been using the same traditional methods for nearly five decades.
The transformation of the system was undertaken through two ma-jor changes.11 The first change involved the revision of existingcase-management methods. The second was the introduction ofADR into the judiciary. Each of the policy shifts improved thesystem’s efficiency, but it was the combination of the two that gen-erated the most significant change.
9 Current data can be found in the semi-annual reports of Administration of Courts. THE STATE OF ISRAEL: THE JUDICIAL AUTHORITY, http://elyon1.court.gov.il/eng/home/index.html(last visited Jan. 12, 2012).
10 SULTSIANO-KEINAN, ET AL., THE BURDEN ON JUDICIARY SYSTEMS: A COMPARATIVE ANALYSIS OF 17 COUNTRIES, HAIFA UNIVERSITY CENTER FOR PUBLIC MANAGEMENT AND POL- 11 The reform applied to civil cases at first, including family law cases. A few years later, some of the case management methods were applied to criminal cases.
\\jciprod01\productn\C\CAC\14-3\CAC308.txt Israel introduced ADR to the judiciary system in 1992, follow- ing the amendment of the Courts Act of 1984.12 In the late 1990s,two commissions were appointed: the Or Commission13 and theGadot Commission.14 The Or Commission was appointed to ana-lyze the court system’s structure, and the Gadot Commission wasappointed to delineate the qualification of court-appointedmediators and their training program.15 The recommendations of both commissions set the baseline for the Case Management and ADR Programs. Cooperation be-tween the Supreme Court President, the Honorable ProfessorAaron Barak, and Professor Sander led to the first pilot in Tel AvivMagistrate Court. The pilot was headed by the President and theHonorable Judge Dan Arbel and managed by the Honorable JudgeIlan S. Shilo. The program started as the multi-door courthousemodel proposed by Professor Sander, and evolved in response tostakeholder and public feedback to meet the distinctive require-ments of the Israeli system.
San Mateo Superior Court: Multi-Option Appropriate Dispute The Superior Court of San Mateo County’s Multi-Option ADR Project (MAP) was based on the premise that the courtshould try to provide disputants with the most appropriate disputeresolution option for their particular case, whether that be litiga-tion, mediation, or some other dispute resolution process. Media-tion is viewed as just one option in the spectrum of disputeresolution processes available to disputants. The program beganwith a civil mediation program in 1996, prompted in part bydelayed trial dates due to the newly implemented “fast track”rules. The stakeholders convened were from the community medi- 12 The amendment contains three options for ADR: Section 79(a) enables the court to pro- pose an abridgement ruling that the disputants cannot later appeal; Section 79(b) enables thecourt to refer the case to arbitration; and Section 79(c) enables the court to refer the case tomediation.
13 THEODOR OR, REPORT OF THE COMMISSION FOR EXAMINATION OF THE REGULAR 14 SARAH GADOT, REPORT OF THE CONSULTING COMMISSION TO COURT MEDIATION (May 15 Based on the Gadot Commission’s recommendations, the Courts Regulations of 1996 (mediators panel) were amended in 1999, but cancelled in April 2008. Current Israeli law en-ables anyone to be a mediator. The Rubinstein Commission (discussed below) set the qualifica-tions for mediators participating in the mandatory mediation program.
\\jciprod01\productn\C\CAC\14-3\CAC308.txt 812 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 14:807 ation program, the bar association board, and the bar associationADR committee, along with judges and the court CEO.
MAP started small, focusing at first on offering mediation in general civil cases through a partnership with the local county bar,the community mediation center, and the Peninsula Conflict Reso-lution Center. In the civil program, judges can engage disputes in atwo-part discussion about ADR options during their initial case-management conference. First, the judge can mandate that partiesmeet with ADR staff to discuss and be educated about ADR op-tions. The second step is either to voluntarily agree to proceedwith ADR, or to decline ADR, in which case the parties have atrial date. Although the education about ADR may be mandatory,participation in mediation or another form of ADR is voluntary.
Parties who decide with the judge’s or court staff’s assistance to participate in mediation or another ADR option can select theirneutral privately or by consulting the program’s carefully screenedlist of panelists. In several of the MAP programs (civil, probate,and complex litigation), the parties are responsible for paying theneutral for his or her services except when pro bono or modest-means assistance is needed. To provide this assistance, the staffscreens parties based on income and works with the whole panel tomake mediation and other ADR services fully accessible to all whouse the court.
Initial success with the civil mediation program enabled the program to grow. Other forms of ADR, such as neutral evalua-tion, were added to the civil program. Two preexisting court pro-grams—small claims mediation and judicial arbitration—wereintegrated into the project.
An existing partnership with the local bar and community me- diation center enabled the court to include juvenile dependencyand a comprehensive family law ADR program. With respect todependency, the court initially partnered with the community me-diation center to hire a part-time coordinator to oversee volunteermediators. Following the program’s success, the court sought andreceived State trial court funding for a program coordinator posi-tion at the court. Now families at all stages of the dependency pro-cess have access to free mediation services to help clarify andresolve issues.
With respect to family law, the San Mateo County Bar Associ- ation originated a small program that was later brought in-house tothe court through State trial court funding. For many years, and upuntil severe budget cuts beginning in 2008, a staff attorney-media- \\jciprod01\productn\C\CAC\14-3\CAC308.txt tor was available on site at the court. There was, and still is, apanel of private attorney mediators and arbitrators to whom casescan be referred. Volunteer attorney mediators have been recruitedand trained in order to replace the staff attorney mediator for theon-site mediations.
The probate and complex litigation programs share with the main civil program market-rate private panels of neutrals with probono neutrals available based on need. The juvenile delinquencyprogram employs restorative justice techniques to bring togetherjuveniles and the persons victimized by their behavior. Volunteerstrained by the community mediation center provide the mediationservices, which are free to the parties, and court staff manages theprogram.
The analytic framework proposed by Stephanie Smith and Ja- net Martinez16 is summarized below and then used to assess theexperience of the Delhi Mediation Center in the Delhi districtcourts, the Israel Judicial Court in Tel Aviv, and the San MateoSuperior Court in California.
THE ANALYTIC FRAMEWORK
What does the system’s decision-maker(s) seek to accomplish? Which types of conflicts does the system seek to address? How are their interests represented in the system? Which processes are used to prevent, manage, and resolve disputes? If there is more than one process, are processes linked or integrated? What are the incentives and disincentives for using the system? What is the system’s interaction with the formal legal system? What financial resources support the system? What human resources support the system? Does the system include monitoring and evaluation? 16 LISA BINGHAM, JANET MARTINEZ & STEPHANIE SMITH, DISPUTE SYSTEM DESIGN: PREVENTING, MANAGING AND RESOLVING CONFLICT (forthcoming, 2013); Stephanie Smith &Janet Martinez, Analytic Framework for Dispute System Design, 14 HARV. NEGOT. L. REV. 123(2009).
\\jciprod01\productn\C\CAC\14-3\CAC308.txt 814 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 14:807 The first element of the framework, the goals, seeks to identify the types of conflicts the system seeks to address, and to determinethe system’s objectives. Prioritizing the desired outcomes helpsclarify the policy direction ex ante and assess the system’s successex post.
A court’s essential function is to determine, according to the facts and the law, the rights of the parties coming before it. Whiletime and cost savings for the court are often front and center, manycourts have realized that a powerful parallel reason for implement-ing such a program is to improve the public’s trust in, and satisfac-tion with, the courts. Parties can gain a sense of procedural justicethrough employing various forms of ADR, notably that of media-tion: their voices can be empowered, and they can enjoy fair treat-ment, reduced hostility and costs, expedited resolution, andincreased overall satisfaction.
The trade-offs inherent in competing goals may affect the quality of the resulting system. Significant tension can arise amongthe goals of efficiency, fairness, and justice. For example, whatgoal is achieved if a court sanctions certain behaviors while punish-ing others? Is the primary aim to deter parties from future dis-putes? Can court services realistically guarantee satisfaction to all?Can court outcomes provide long-term durability of resolutions, ormerely more short-term results? One might argue that these una-voidable conflicts might affect fairness in some cases but enhanceefficiency in others.
Indian disputes referred to mediation include business and commercial, insurance, matrimonial (divorce, custody, and dowry),intellectual property, labor and management, property, and tort re-covery. Clearly, the driving objective of mediation referrals hasbeen to reduce the case backlog by offering a less time-intensiveand less expensive process to resolve a wide range of disputes.
The objectives of the Israeli program have been to adopt ADR process options and case-management policies in order toprovide optimal service within the limits of its resources. The focushas been on reducing case-processing time and lessening the vol-ume of cases for the judges. Furthermore, the program aimed tointroduce ADR to and encourage its use by the public.
As noted above, in San Mateo Superior Court, cases in family, probate, civil, complex litigation, juvenile, and small claims each \\jciprod01\productn\C\CAC\14-3\CAC308.txt have access to ADR. The Multi-Option ADR Project’s more-va-ried goals are outlined in its mission statement as follows: To increase the court’s ability to resolve cases.
To provide a flexible, tailored array of dispute resolution ser-vices, where the unique features of cases are given priorityattention.
To encourage early case preparation, with the benefits ofsaving both time and money.
To promote an ongoing attitude of cooperation and collabo-rate in both the public and private sector’s approach to han-dling disputes of all kinds, whether institutional, business, orinterpersonal.
To promote greater public satisfaction with the civil andcriminal justice systems.
To promote the usefulness of ADR to members of the publicthrough educational efforts.17 Consistent among all three courts has been the goal of a more efficient case-handling system, with respect to both time and ex-pense, for the court and the parties. However, that efficiency hasbeen balanced with the provision of parties with a more par-ticipatory and interest-driven process option still within the boundsof the court. Each court engaged a range of stakeholders for input,offered public education, and started with a pilot by geography orcase type before expanding the program.
The second element of the analytic framework involves pro- cess options and structure. Other processes may focus on the pre-vention or management of certain categories of disputes, but courtsare established to resolve disputes. It is useful to probe the incen-tives and disincentives (financial, relational, legal, or other) andconsider: What role parties, their counsel, the judge, and the courtADR administrators should play in deciding whether to useADR.
What role they should play in selecting, providing, and tim-ing the ADR process option.
17 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO, MULTI-OPTION ADR PRO- JECT EVALUATION REPORT, JULY 2007 – JULY 2008 (2009), available at http://www.sanmateo court.org/documents/adr/2007_2008_evaluation_report.pdf.
\\jciprod01\productn\C\CAC\14-3\CAC308.txt 816 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 14:807 To what degree the court should encourage or require use ofan ADR option.
Whether certain cases should be exempt from specific (orall) ADR options.
In the Indian programs, mediation may be recommended at any stage, but preferably after admission/denial. The referringjudges assess cases for mediation based on party characteristics,case characteristics, legal issues, and the number of parties.
In a bid to deal with case overload and provide respite outside court, the Chief Minister of the Delhi Cabinet, Sheila Diskhit, to-gether with the Delhi High Court and the author, in his capacity asPrincipal Secretary, formed the Delhi Disputes Resolution Society.
Under its auspices, eight mediation centers have been establishedthroughout Delhi. The mission of these community mediation cen-ters is not only to reduce the debts of pending cases, but also totarget the cases at a pre-litigation stage and to promote social har-mony. Types of cases served include those relating to family dis-putes (domestic violence, maintenance, custody, separation),consumers, community disputes, commercial practice, schools,check bouncing, administrative tribunals, police complaints, andpersonal injury and accident compensation. The government plansto seek the services of retired judges and reputed advocates. Fur-thermore, the information technology department is working to es-tablish software to avoid unnecessary paperwork and delays.
The Israeli structure focuses on both ADR and case manage- ment. The first step in its structural overhaul was the establish-ment of a new legal division in 1997, the Case Management andADR Department. The new departments’ responsibilities includedimplementing case-management methods, referring and monitor-ing cases referred to ADR, and providing legal assistance to thejudges. The new elements of case management included construct-ing specialized departments, such as the department for torts.18Classification and preparation were accomplished mostly by evalu-ating cases prior to pre-trial hearings.19 Providing judges with therelevant information and documentation of their respective casesby the first hearing had a significant impact on judicial time.
18 The departments include the department for torts, the department for contractual claims and supply of goods, the department of banking loans and credit, the department for property,the department for libel, intellectual property, and complex commercial cases.
19 The directions have been given in accordance with the judge’s guidance and based on the specific case. It enabled tailoring different case management procedures for each case asrequired.
\\jciprod01\productn\C\CAC\14-3\CAC308.txt The criteria for referring cases to mediation in the Israeli pro- gram were eliminative. The court’s directions were not binding,and it did not take any position on parties’ response. Cases werereferred to mediation at every stage of the trial. The obvious ad-vantages of ADR to the court and the public included time saved, areduction in overall costs, and improvement of parties’ relation-ships. The state also incentivized ADR by providing a full refundof court fees to those who used it to resolve their cases.20 The dis-putants choose between internal or external mediation.21 In San Mateo, disputants are informed of ADR options upon filing, whether they are in the civil, probate, complex litigation,small claims, juvenile, or family departments. Professional andhighly skilled neutrals are provided by different methods and atdifferent times in each program area. For example, in civil, pro-bate, and complex matters, parties are given prescreened lists ofmarket-rate neutrals (mediators, arbitrators and neutral evalu-ators), or they can select a neutral on their own. They are given atime frame in which to submit a stipulation providing the courtwith the neutral’s name and the ADR session’s date. They split thecosts unless pro bono is requested and granted.
In the small claims and two juvenile programs, mediations are provided free of charge by trained community volunteers overseenby court staff. In the family law ADR program, there are free staffvolunteer mediators on site for short-cause matters, and a privatepanel of trained family law mediators and arbitrators who handlethe first ninety minutes on a reduced-fee basis. Key factors thathave contributed to the growth and development of the programinclude: Broad participation in the development and implementationof the program, from the judges, local bar, community medi-ation center, and other community partners.
The use of professional ADR staff helps keep the programon track. For example, the program director’s expertise andability to engage a wide range of people (judges, attorneys,and disputants) have been critically important in securingthe support needed for all aspects of the program.
Appropriate referral of disputants to an ADR option thatmeets their needs. Otherwise, parties are likely to be dissat-isfied with the program or the court.
20 The disputants are referred to the Administration of Courts website for information about the different ADR options, and to the list of neutral parties involved.
21 Internal mediation took place at the courthouse and was facilitated by court attorneys.
Mediators approved by the Administration of Courts facilitated external mediation.
\\jciprod01\productn\C\CAC\14-3\CAC308.txt 818 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 14:807 High-quality neutrals and the ability to track success. Eachof the programs provides evaluations to all participants, at-torneys, and neutrals for all cases.
The third element influencing ADR implementation in differ- ent countries is the identification of stakeholders and their relativepower. Stakeholders include the immediate parties in conflict,their counsel, the court itself, the court’s employees, and the citi-zens within the jurisdiction. In examining the various stakeholdersinvolved, one must ask how the introduction of a new system al-lows for the different stakeholder interests to be met.
Many lawyers of various Delhi bar associations were not inter- ested in adopting alternative dispute resolution practices, so theMCPC started the program with officers of the Delhi Higher Judi-cial Services. The Delhi High Court approved draft rules on medi-ation for the Delhi jurisdiction. After initial resentment, lawyersgradually began participating.
The reform of the Israeli court system and the implementation of ADR were initiated by the Israeli judicial system. The presidentof the Supreme Court, the Honorable Judge Aaron Barak, sup-ported and encouraged the use of ADR. Judge Barak’s view wasthat, ideally, the courts would deal with disputes that had to beresolved through judicial rulings, while the remainder—indeed, thelarge majority—of the cases would be dealt with by means of alter-native methods, such as arbitration and mediation.22 Judge Barakemphasized that “the importance of mediation is in off-loading thebacklog of the courts; it is not its goal, but it should be its result.”23 The Israeli Bar Association’s approach was disjointed. Some voices strongly opposed any kind of change to case-managementpractices, while others supported the process and called for attor-neys to get training as mediators and take an active role in thereform. From the stakeholders’ perspective, the neutrals repre-sented the court and had to meet the highest standards ofprofessionalism.
Initially in Tel Aviv, there were no limitations placed on the number of people who could qualify for the external mediators’ 22 Aaron Barak, About Mediation, 1 SHA’AREI MISHPAT 9 (2002), http://www.mishpat.ac.il/ \\jciprod01\productn\C\CAC\14-3\CAC308.txt panel, and the list kept growing rapidly, ultimately includingthousands of mediators. As a result, there were too manymediators who were fully trained but lacking practical experi-ence.24 This situation led to growing dissatisfaction among attor-neys and disputants with the level of mediator professionalism. Asa result, willingness to participate in mediation decreased in somecourts. In response to this declining interest in mediation, the Ru-binstein Commission25 established a pilot program of mandatorymediation. The program was launched by three Israeli courts inSeptember 2008. According to the program, disputants in cases ex-ceeding 50,000 NIS had to attend a pre-trial meeting called a“mah ¨ ut,” an acronym for “familiarity and coordination gathering.” The major change is that the mah ¨ mediator chosen from a panel of mediators who have been rigor-ously examined. In the mah ¨ ut meeting, the disputants present their respective complaints and hear from the mediator about the vari-ous options available for resolving the case. It is then each dispu-tant’s choice as to whether to proceed with mediation or go to trial.
In San Mateo, minimum mediator qualifications for the civil, probate, and complex programs include a combination of trainingof at least forty hours and experience in at least five mediations, orother substantially equivalent background. References are re-quested of applicant neutrals and observation may be requested.
Stakeholders included bar association and community mediationprogram members and other relevant agency and communitygroup representatives who served alongside judicial officers on ad-visory committees formed for each new program. For example, thejuvenile mediation program advisory committee consisted of notonly probation, district attorney, and social worker representatives,but also mental health professionals from referring schools and ju-venile liaisons from some of the local police departments, alongwith the ADR staff and juvenile judges.
There are vital concerns regarding the extent to which the ju- dicial system can provide adequate resources for the incorporation 24 A hidden benefit was that many of the mediators not mediating court cases developed and implemented mediation programs in communities and schools instead.
25 MICHAL RUBINSTEIN, REPORT OF THE COMMITTEE TO ASSESS WAYS TO INCREASE THE USE OF MEDIATION TO DECREASE THE BURDEN ON THE JUDICIARY SYSTEM (2006).
\\jciprod01\productn\C\CAC\14-3\CAC308.txt 820 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 14:807 of ADR. How will the system be financed, and is its funding leveladequate to achieve the stated goals? What impact do the amountsand sources of funding appear to have on the results of the system?On the human resource side, are neutrals adequately trained toprovide quality and ethical services? Do other personnel in thesystem (internal and external to the organization) have sufficientskills, training, and supervision? A system can achieve its goalsonly if it is adequately supported. To avoid creating an elaborateset of processes with inadequate resources, stakeholders may berequired to make hard decisions that, as noted above, may have animpact on fairness, justice, and the likelihood of success.
Limitations influence different approaches to creating an ADR operation. Two major staffing models are used in courtADR programs. Courts with a “staff-neutral” model employ spe-cially trained court staff to serve as the ADR neutrals. This modelis used in a number of Federal Circuit Courts of Appeal and asmaller number of district courts in the United States. The modelwas used in the Israeli program.
Largely due to cost considerations, however, many courts use a panel model, relying on private practitioners to serve as ADRneutrals on a court-administered or court-sponsored panel.26 Inthe Indian program, judges and attorneys with ten years of practiceand forty hours of training may be mediators. The cost is free fordisputants and their court fees are refunded. The government payslawyer mediators. The DMC, under the MCPC, conducts varioustraining programs for judges and lawyers in Delhi and in the differ-ent states of India, including training aimed at increasing theawareness of mediation, highlighting the role of the referringjudges and lawyers, and providing refresher courses for mediatorswith subject-specific training and more.
It is important to note that in Israel there are higher attend- ance and resolution rates in cases using internal mediation than inthose that are referred out, with an attendance study revealing in-ternal mediation attendance rates at eighty percent versus the ex-ternal mediation rate of fifty percent.
Some external mediators have argued that having the option of internal mediation was the reason for the decrease in externalmediation participation. Another argument was that internal 26 The rough division of court ADR delivery options into these two categories oversimplifies the terrain. For a more detailed discussion of five different models and their strengths and weak-nesses, see Wayne D. Brazil, Comparing Structures for the Delivery of ADR Services by Courts:Critical Values and Concerns, 14 OHIO ST. J. ON DISP. RESOL. 715 (1999).
\\jciprod01\productn\C\CAC\14-3\CAC308.txt mediators used a more evaluative mediation style and that there-fore the rate of resolution was higher. The higher attendance andresolution rates through internal mediation might be connected tointernal mediation’s sponsorship by the courts, which perhaps in-creased public confidence in the process. Furthermore, internalmediators had an opportunity to handle a higher volume of casesand thus deepen their experience.27 In every dispute system design, the most important resource is human talent. All models rely on the generosity of the mediators,many of whom volunteer their preparation time and first ninetyminutes or more. In order to continue to uphold the public man-date of providing such accessible and affordable services, judiciar-ies must find ways to increase their funding, and the state and thejudiciary must keep and attract skilled mediators. The last element to assess is the success of the ADR program in each setting. On the ground level, one must ask to whom is thesystem accountable? Is the system transparent in terms of its oper-ation, access to processes, and result? Does the system include anevaluative component, and, if so, what is studied, when, by whom,and for whom? Finally, is the system successful when measuredagainst its goals and other relevant legal and societal norms? A system’s success is best judged if outcomes are made availa- ble to, and studied by, independent evaluators. Unfortunately,barriers such as cost, privacy concerns, and difficulty often pre-clude independent evaluation from taking place. At a minimum,evaluation should begin with internal monitoring, including somecombination of data collection on usage, surveys, and focus groupsdesigned to obtain candid feedback from key stakeholders. Ofcourse, independent external review is preferable and can providea more detailed and objective assessment.
In India, the DMC issues newsletters and annual reports. As of December 2012, the DMC had settled over 70,000 cases, with anaverage success rate of seventy percent.28 The DMC pilot has led 27 Whether or not internal mediation is necessary to establish an ADR system is a compli- cated question. See Wayne D. Brazil, Should Court-Sponsored ADR Survive?, 21 OHIO ST. J. ONDISP. RESOL. 241 (2006).
28 DELHI MEDIATION CENTRE: DISTRICT COURTS OF DELHI, http://delhimediationcentre.gov .in/nl2012.htm (last visited Mar. 16, 2013).
\\jciprod01\productn\C\CAC\14-3\CAC308.txt 822 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 14:807 to a national plan on mediation to encourage use of mediation as aspeedy, inexpensive, and high-quality alternative to litigation.
The success of the Case Management and ADR program in Tel Aviv was measured by the goals defined at the outset. By Sep-tember 2000, just two years after the program’s initiation, the aver-age time it took to process and complete a civil case had beenreduced from five years to two. The other goal, namely that ofreducing case volume, had also been achieved.29 The evolution and success of the Israeli Case Management and ADR program was partly based on periodical re-examination ofthe program’s performance. Monthly, semi-annual, and annual re-ports monitored the program’s effectiveness. The relentless searchfor new methods to enhance judicial efficiency resulted in tangiblesuccess.
Recent data assessing the progress of the mandatory media- ut) can be found in the Rubinstein Committee’s intermediate report, which analyzed 1,213 pilot cases referred fromthree different courts (Jerusalem, Tel-Aviv, and Rishon Lezion).
The research methods for the report included both qualitative andquantitative approaches. The report indicated that most of the dis-putants and their attorneys were highly satisfied with the media-tor’s professionalism. During the pilot period of September 2008to March 2009, 52.9% of the disputants chose mediation to resolvetheir conflicts. Most of the attorneys and disputants participatingin mediation were satisfied with the process, and 61.4% resolvedthe conflict through mediation. Sixty-five percent of the disputantssaid they would recommend mediation to family or friends.
In San Mateo, the Civil and Probate ADR Program is a volun- tary, market-rate program, with income-based, pro bono, and mod-est-means services available. Referrals are provided by trainedand experienced neutrals who are attorneys, non-attorney profes-sional neutrals, and retired judges. These professionals are allasked to respond to evaluations of the programs.
There were 741 cases referred to the Civil ADR Program for the 2007-2008 fiscal year.30 For the Civil ADR Program report, 29 See THE ADMINISTRATION OF COURTS REPORT. The reduction in volume should be credited not only to the case management and ADR reform, but also to appointment of judgesand to the 24th amendment of the Execution Act.
30 The following statistics on the San Mateo ADR program come from SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO, MULTI-OPTION ADR PROJECT EVALUATION REPORT,JULY 2007 – JULY 2008 (2009), http://www.sanmateocourt.org/documents/adr/2007_2008_evaluation_report.pdf.
\\jciprod01\productn\C\CAC\14-3\CAC308.txt only one quarter of the year’s data was captured, from October2007 to December 2007. In this quarter, of 170 cases referred tothe program, ninety-six responded to the survey.31 With respect tovoluntary participation, seventy-three percent of cases referred tothe program proceeded to ADR, and twenty-seven percent did notor had not yet gone to ADR.32 Of those cases where ADR hadbeen utilized, seventy-one percent settled fully and three percentpartially settled.33 Twenty-six percent did not settle at an ADRsession.34 In all cases in which an ADR process was chosen, mediation was utilized. The duration of the average ADR session was 4.0hours, with an average of 1.2 sessions. The types of cases includedpersonal injury (thirty-six percent), business (twenty-six percent),real estate (thirteen percent), employment (nine percent), con-struction (five percent), professional malpractice (three percent),complex litigation (three percent), and other/insurance/intellectualproperty (five percent).35 Ninety-five percent of respondentsthought that court time was reduced as a result of ADR, while fivepercent thought court time was increased.36 Eighty-five percent ofrespondents thought that ADR reduced costs, while fifteen percentthought ADR increased costs.37 Forty-nine percent of plaintiffs’attorneys and twenty-eight percent of defense attorneys who re-sponded to the evaluation thought that proceeding with ADR re-duced litigation costs in the range of $10,000 or less.38 Forty-sixpercent of plaintiffs’ attorneys and fifty-six percent of defense at-torneys estimated cost savings in the range of $10,000 to $50,000.39 With respect to the timing of ADR sessions, forty-two percent were held after some preliminary discovery had been completed,thirty-percent after significant discovery, twenty-two percent whentrial was imminent, and six percent within four months of filing.40 Below are the results in terms of satisfaction rates, based on responses from plaintiffs, defendants, and counsel: 31 Id. at 6.
32 Id. at 7.
33 Id. at 9.
34 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO, MULTI-OPTION ADR PRO- JECT EVALUATION REPORT, JULY 2007 – JULY 2008, supra note 30, at 9.
35 Id. at 13.
36 Id. at 16.
37 Id. at 17.
38 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO, MULTI-OPTION ADR PRO- JECT EVALUATION REPORT, JULY 2007 – JULY 2008, supra note 30, at 18.
40 Id. at 4.
\\jciprod01\productn\C\CAC\14-3\CAC308.txt 824 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 14:807 SUMMARY TABLE
Tel Aviv, Israel
San Mateo, California, USA
for civil/probate; complexlitigation; family law; smallclaims; juvenile dependencyand juvenile delinquency.
A confluence of several factors, including easier access to in- formation, the evolution of law, and increases in the size of judi-ciaries in some regions, has resulted in more litigation and largercaseloads worldwide. Meeting the growing demand has resulted inthe evolution and growth of court ADR programs.
The analytic framework examined here exhibited a prelimi- nary comparison of three different court-operated ADR programs \\jciprod01\productn\C\CAC\14-3\CAC308.txt at three different stages of development and in three differentstates/nations: India, Israel, and California. Although all three pro-grams shared the same overriding goals of enhancing efficiency, re-ducing costs, and garnering public trust, the procedures andstructures of each program diverged. While India focused mainlyon mediation, Israel implemented new case-management methodsand a broader ADR program. San Mateo, the locale of the mostmature program, developed the most advanced and tailored appli-cations in dispute resolution.
Key factors that contributed to the growth and development of the ADR programs in India, Israel, and California include: Starting with a pilot program and slowly expanding to high-demand areas based on the performance of the pilots; Educating the public about ADR and providing financial in-centives, such as free mediation for low-income parties orwaiving court costs if ADR is selected; Hiring ADR professionals to staff programs. The expertiseof the program director and her ability to network with awide range of people (judges, attorneys, disputants) werecritically important to securing the support needed for all as-pects of the programs; Engaging the stakeholders—including judges, local bar andcommunity mediation center members, and other commu-nity partners—in the development and implementation ofthe respective programs; Keeping consistent players, such as insurance corporations,banks, and government entities, apprised of the reforms, andattaining their feedback; Ensuring quality control in the selection of and training ofmediators; and Performing ongoing analysis of success through annual re-ports, surveys, and feedback from stakeholders.
The role of technology in the field of ADR may affect the court-annexed programs in the future. In March 2003, new courtsystem software was introduced in the Israeli courts. The softwarecoordinates all relevant information: trial dates, motions and deci-sions, the judges’ calendars, and more. The system enables follow-up on documents required by the parties. Failure to submit suchdocuments on time may result in rescheduling the hearing in order \\jciprod01\productn\C\CAC\14-3\CAC308.txt 826 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 14:807 to prevent wasted judicial time. The software further enables deci-sions and messages from the court to be sent to the parties viaemail/fax, right after they have been given in court. These func-tions have significantly improved lawyers’ efficiency through onlineaccess to information. Because the software enables electronic fil-ing for certain matters, the number of cases filed electronically isgrowing exponentially every year.41 It appears that the Israeli legal culture will continue its move- ment toward early case handling.42 ADR is well on its way to be-coming rooted in the Israeli system. The positive trend that theRubinstein Pilot established will necessarily affect public percep-tion, encouraging attorneys and disputants to approach mediationprior to court proceedings, and may ultimately reduce further thevolume of court cases.
The challenges for the future relate to the implementation of additional methods of dispute resolution, early evaluation by neu-tral parties, and non-binding arbitration.43 The recent amendmentof the Arbitration Act, which enables consented appeal, may en-courage more disputants to use that method.44 It is of paramountimportance to keep the new generation of attorneys abreast of theinnovative methods available for conflict resolution. In an age inwhich information is easily accessible, attorneys will have to meettheir clients’ needs and provide clients with customized processesto help resolve conflicts.
San Mateo’s MAP program has endured and continues to face significant budget and staffing cuts, like many other public agenciesin California. Furthermore, the program is expanding responsibil-ity for managing probate investigations, self-help, and FamilyCourt Services custody mediators. MAP’s management is trying touse this period to refocus on essential services and adopt an aggres-sive use of technology. One long-term goal is to assess these addedareas for greater use of interest-based dispute resolution. Amidststaffing cuts and increased service responsibilities, MAP’s manage- 41 Over the last several years, the Administration of Courts implemented advanced software that transformed the Israeli judicial system into a system based on virtual files. Many of theprocesses described above are generated automatically in the new system. The system has yet tobe implemented in Tel Aviv.
42 For a comprehensive discussion of the movement, see John Lande, The Movement Toward Early Case Handling in Courts and Private Dispute Resolution, 24 OHIO ST. J. ON DISP. RESOL.
43 See RUTH RONEN, REPORT OF THE COMMITTEE TO ASSESS WAYS TO ENHANCE EFFICIENT 44 See RONEN SETTY, Appealing Course in Arbitration, Road Test.
\\jciprod01\productn\C\CAC\14-3\CAC308.txt ment is trying to be more open to rethinking how business is doneand considering various forms of ADR.
The development of online dispute resolution options—in- cluding both facilitative and evaluative processes—may fulfill aneed caused by drastic budget cuts in court programs. Technologi-cal development is underway for courts in Canada and California.45 The experiences of the Indian, Israeli, and California state courts’ ADR systems, compared within the analytic framework fordispute system design, may provide insights into the creation ofnew systems or the improvement of existing ones. Cultural differ-ences have definitely influenced some of the methods describedhere. Therefore, certain modalities should be tested before beingapplied outside the system in which they originated. However, theuse of the same framework to analyze the systems facilitates thesharing of experiences. The lessons learned from the process in-volved in the creation and maintenance of the systems will hope-fully facilitate the development of ADR systems elsewhere.
45 Recent developments in technologically-enabled access to justice suggest how these op- tions could enhance both party satisfaction and system efficiency. See, e.g., Michael J. Wolf,Collaborative Technology Improves Access to Justice, 15 N.Y.U. J. LEGIS. & PUB. POL’Y 759, 774(2012) (on British Columbia’s partnering with Modria, a tech start-up developing online disputeresolution systems); Ayelet Sela, Presentation at Hebrew University, Can A Computer Be Fair?Disputants’ Experience of Procedural Justice in Automated and Facilitated Online Dispute Res-olution (on file with authors).
Opinions of the Colorado Supreme Court are available to the public and can be accessed through the court’s homepage at http://www.courts.state.co.us/supct/ supctindex.htm. Opinions are also posted on the Colorado Bar Association homepage at www.cobar.org. No. 06SC597, Bloom v. People - Admissibility of polygraph test results - Right to confront witnesses - Right to trial by jury - Mistrial