OCEAN CITY – Court-affiliated alternative dispute resolution has grown quickly in Maryland since its inception several decades ago, with more than 70 individual ADR programs currently able to handle family law, civil and criminal cases from the district courts to the Court of Special Appeals.
An extensive statewide study examining these programs has found ADR’s benefits extend beyond the individuals who successfully resolve their cases outside the courtroom: ADR also helps lighten the burden of overloaded court dockets and boosts the public’s perception of the judicial system, panelists said Friday at the Maryland State Bar Association’s annual meeting.
“It’s really become an ingrained part of our system,” said Timothy H. Sheridan, court administrator for Baltimore County Circuit Court. “We are interested in results, and we need results. We can’t try all of our cases, so it’s important to the court that we have cases resolving outside litigation.”
Because district court judges are handling thousands of cases each year, said Baltimore County District Court Judge Dorothy Wilson, parties able to use the ADR process rather than litigating claims help lighten that load.
“It allows the court to be freed up to resolve those cases that can’t be resolved through ADR,” Wilson said. “In district court, that trial time is precious; our dockets are packed. The benefit that parties gain, even if they don’t reach an agreement — it helps with future filings, it helps with the way they think about the court system overall, it helps them shift their attitude about the way they think about each other — and those are all very important components.”
According to the study discussed by the panel for “Court ADR: What Works and Why It Matters,” participants who were able to develop an agreement during ADR tended to be more satisfied with the judicial process than those who reached a negotiated agreement on their own — a finding that emphasizes the benefits of ADR from an individual perspective, several panelists said.
“Even if a mediation that’s pursuant to a court order doesn’t result that day in a signed deal, the door has been opened. There’s some foundation that might ultimately lead to a pretrial resolution,” said Baltimore City Circuit Judge Julie R. Rubin. “There is intrinsic value in citizen satisfaction and faith in the system. When attorneys feel this is a legitimate part of their service to their clients, there will be greater buy-in to ADR as part of the process.”
Parties that participate in ADR are also more likely than those who go through litigation to say they felt they were able to express their thoughts and concerns and have their voices heard, said Nick White, evaluations and research director for the Judiciary’s Mediation and Conflict Resolution Office.
“They felt that all of the underlying issues came out and that the issues were resolved, and they felt that they acknowledged responsibility in the process,” White said. “This holds true regardless of whether there’s an agreement in mediation or not.”
The study was led by the Administrative Office of the Courts, partly funded by a grant from the State Justice Institute and conducted by independent researchers over five years. It also included direct observation of mediation sessions, in which researchers used behavioral coding to study the strategies employed by mediators.
In determining which strategies were most effective, the researchers divided mediator behavior into four basic categories: reflecting, in which the mediator asks open-ended questions and echoes parties’ emotions and concerns; directing, in which the mediator plays the role of an enforcer; eliciting, in which parties are asked to come up with potential solutions; and telling, in which the mediator offers solutions and introduces topics.
Mediators who make use of the reflecting and eliciting strategies typically have the most success in ADR, said Jamie Walter, director of court operations at the Administrative Office of the Courts.
“Eliciting is the one strategy that was associated with reaching an agreement — it’s about eliciting solutions from them and not telling them, ‘In my experience, this works well’ or, ‘Why don’t you try this?’” Walter said. “The directing strategy of telling participants what to do is related to more adversarial motions — the more likely they are to file them and the more motions there are.”
By choosing the most effective strategies, mediators can help ensure parties are less likely to interact with the courts in the future and more likely to take responsibility in their cases, panelists said.
“My biggest takeaway from this research is the fact that, regardless of whether an agreement is reached, participants in ADR gain a benefit,” Wilson said. “What that tells me as a judge is that I have to allow that process to unfold.”
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