All Rise, the Court Is in Session: What Judges Say About Court-Connected Mediation

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Mediation Tune up for the State Court Appellate Machine, A

This Article begins in Part II with a review of the rationale for appellate mediation programs. In Part III the Article will discuss the development and evaluation of a pilot program for the mediation of family appellate cases in Minnesota. The pilot was developed and implemented with the goals of settlement and other qualitative justice measures in mind. Moreover, preliminary evaluation results for the pilot suggest that both continue to be important and can be achieved.3 In Part IV the Article will discuss the elements of program design most likely to make appellate mediation programs succeed, in terms of both efficiency and procedural justice. The Article will suggest that commitment to both of these goals in appellate mediation programs will help to ensure that there is sufficient oil to prevent a breakdown in the engine of justice

Challenge of Institutionalizing Alternative Dispute Resolution: Attorney Perspectives on the Effect of Rule 17 on Civil Litigation in Missouri, The

In 1997 the Missouri Supreme Court revised its civil (non-family) ADR rule, Rule 17, to give individual judges the power to order cases to ADR. One of the primary reasons for the revision was to increase the use of what was seen as a worthwhile but underutilized rule. In an effort to evaluate the revised rule and its effects, the Missouri Supreme Court commissioned the Authors to conduct an extensive attorney survey to assess when and why lawyers choose to use ADR, especially mediation; what ADR has on the litigation process; and how and when judges get involved in choosing ADR. The following Report, published in May 2002 by the Missouri Supreme Court and reprinted here, details the answers Missouri lawyers gave to these important questions and provides important evaluative information for the emerging national picture of court-connected ADR

Eyes on the Prize: The Struggle for Professionalism

Article Extract: A mere fifteen years ago, the term mediation was confused regularly with meditation. Much has changed. The courts, frequently derided as overcrowded and expensive for individual litigants and the public, now rely on mediation to resolve cases and reduce dockets. Attorneys and judges are advocates; many have become mediators themselves. Disputants generally express satisfaction with the process. It is not surprising that mediation-along with other ADR processes-has achieved institutionalization in the courts, public agencies and the private and nonprofit sectors. We are now embarking on the next stage: professionalization. There are increasing references to dispute professionals or professional mediators. Presumably these terms signal something more than simply being paid for dispute resolution services or achieving popular recognition of the title “mediator.

It\u27s Time to Get It Right: Problem-Solving in the First-Year Curriculum

In the Fall of 2010, two of the authors taught a newly required first-year course: Practice, Problem-Solving and Professionalism, or P3 as it has come to be known at Hamline University School of Law (HUSL). In this Article, we will use the P3 course as a case study in legal education curricular reform. We contend that the problem-solving emphasis of the course and its placement in the first-year curriculum responds elegantly to the various calls for legal education reform over the last few decades. Moreover, the course is fairly easily replicated, even in large first-year classes. Most importantly, we believe it should replace separate Alternative Dispute Resolution (ADR) courses which have proliferated in law school curricula. We do not advocate for the original Missouri model of total integration of ADR concepts into all first-year courses for both pedagogical and practical reasons. First, we believe that model is viable only for law schools with someone on the faculty as singularly focused as Riskin, and with grant money available to implement the model. Second, the pedagogies of using simulations and even ―adventure learning appropriate to a problem-solving course are not a good fit for most doctrinal professors. Third, the amount of coordination among and between very independent law faculty members required by a fully integrated model is simply too overwhelming. Even Missouri has moved to requiring Lawyering: Problem-Solving and Dispute Resolution as a first-year course, instead of its original path-breaking approach in the nineties. Part II of this Article briefly reviews some reforms in legal practice and legal education as they relate to ADR and problem-solving. Part III details the institutional genesis of the P3 course at Hamline. Part IV explains the actual design and implementation of the P3 course. In Part V, we critique the course and provide details for the revised spring 2012 iteration. Finally, in Part VI, we reiterate our support for a problem-solving course in the first-year legal curriculum

Client Problem-Solving: Where ADR and Lawyering Skills Meet

Influenced by critiques of legal education, law schools are scrambling to offer more and better opportunities for experiential education. To fulfill the new demands for experiential education, one obvious place to turn is clinic pedagogy, which has developed methodologies for teaching students in the real-practice settings of in-house clinics and externships. As the interest in experiential education broadens, a wider spectrum of teaching methodologies comes under the experiential tent, creating opportunities to tap new sources of guidance for reshaping legal education. This article turns the spotlight on one of these other, less obvious resources within legal education: the alternative dispute resolution (ADR) movement. Like the lawyering skills movement in clinical legal education, the ADR movement has drawn from the wisdom of other disciplines to explain and theorize the practice of specific dispute resolution processes like mediation and negotiation. Perhaps more importantly, the ADR movement has provided important justification and elaboration of the underlying commitment to client-centered problem solving, which also animates much of the lawyering skills literature that has arisen from clinical pedagogy. This article traces the problem-solving focus through its development in the ADR movement and demonstrates the similarities between some of the key components of the ADR movement and clinical pedagogy. Finally, it explains how a law school can build on the synergies between these two fields to craft an experiential education program that uses client problem solving as its unifying theme, using the ongoing curricular reforms at Hamline University School of Law as an example

Institutionalization: What do empirical studies tell us about court mediation?

In the 25 years since the Pound Conference, federal and state courts throughout the country have adopted mediation programs to resolve civil disputes. This increased use of mediation has been accompanied by a small but growing body of research examining the effects of certain choices in designing and implementing court-connected mediation programs. This article focuses on the lessons that seem to be emerging from the available empirical data regarding best practices for programs that mediate non-family civil matters. Throughout the article, we consider the answers provided by research to three questions: (1) How does program design affect the success of the institutionalization of mediation? (2) In what ways do design choices affect the likelihood of achieving settlement of cases? and (3) Which program design choices affect litigants\u27 perceptions of the procedural justice provided by court-connected mediation? Because these issues of institutionalization, settlement and justice are so important to the success and quality of court-connected mediation, they must be considered carefully in. deciding both how to structure new court-connected mediation programs and how to improve existing programs

Eyes on the Prize: The Struggle for Professionalism

Article Extract: A mere fifteen years ago, the term mediation was confused regularly with meditation. Much has changed. The courts, frequently derided as overcrowded and expensive for individual litigants and the public, now rely on mediation to resolve cases and reduce dockets. Attorneys and judges are advocates; many have become mediators themselves. Disputants generally express satisfaction with the process. It is not surprising that mediation-along with other ADR processes-has achieved institutionalization in the courts, public agencies and the private and nonprofit sectors. We are now embarking on the next stage: professionalization. There are increasing references to dispute professionals or professional mediators. Presumably these terms signal something more than simply being paid for dispute resolution services or achieving popular recognition of the title “mediator.

Court-Connected General Civil ADR Programs: Aiming for Institutionalization, Efficient Resolution, and the Experience of Justice

State and federal courts in the U.S. have institutionalized various ADR procedures to resolve general civil (non-family) matters, such as personal injury disputes, contract claims, lawsuits arising out of alleged discrimination or violation of civil rights, etc. This chapter reports the results of interviews with the directors of leading court programs regarding their structural choices in offering mediation and non-binding arbitration. In addition, the chapter considers the implications of available empirical research regarding factors that appear to maximize: the use of court-connected civil ADR programs, the achievement of settlements in such programs, and their provision of fair and just processes. Specifically, the chapter provides guidance regarding: reasons for institutionalizing ADR; who should be involved in the design and implementation of a court’s ADR program; the types of ADR that are suitable for general civil cases; how to promote good program management; how to initiate a program; whether participation should be mandatory or voluntary; statutes, rules and forms that may be drafted; education of judges, court staff, attorneys and others; selecting cases for ADR; different referral systems; the timing of referrals to ADR; who should serve as neutrals; appropriate qualifications and training for neutrals; support and evaluation of neutrals; the roles to be played by parties and their attorneys; ethical rules for parties, judges, and neutrals; planning for the assessment of ADR programs’ effectiveness; procedures for hearing and resolving complaints; and funding a court-connected ADR program

Court-Connected General Civil ADR Programs: Aiming for Institutionalization, Efficient Resolution, and the Experience of Justice

State and federal courts in the U.S. have institutionalized various ADR procedures to resolve general civil (non-family) matters, such as personal injury disputes, contract claims, lawsuits arising out of alleged discrimination or violation of civil rights, etc. This chapter reports the results of interviews with the directors of leading court programs regarding their structural choices in offering mediation and non-binding arbitration. In addition, the chapter considers the implications of available empirical research regarding factors that appear to maximize: the use of court-connected civil ADR programs, the achievement of settlements in such programs, and their provision of fair and just processes. Specifically, the chapter provides guidance regarding: reasons for institutionalizing ADR; who should be involved in the design and implementation of a court’s ADR program; the types of ADR that are suitable for general civil cases; how to promote good program management; how to initiate a program; whether participation should be mandatory or voluntary; statutes, rules and forms that may be drafted; education of judges, court staff, attorneys and others; selecting cases for ADR; different referral systems; the timing of referrals to ADR; who should serve as neutrals; appropriate qualifications and training for neutrals; support and evaluation of neutrals; the roles to be played by parties and their attorneys; ethical rules for parties, judges, and neutrals; planning for the assessment of ADR programs’ effectiveness; procedures for hearing and resolving complaints; and funding a court-connected ADR program