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Donald Fischer

Court annexed mediation:  How can cases referred by the court for mediation reach successful mediated outcomes?

 

              Views differ on how to move a court complainant and respondent in conflict to attempt dispute resolution through a format other than courtroom adversarial adjudication.  The processes offered by these differing views are affected by the court’s annexed alternative dispute resolution programs.  These programs differ by court jurisdiction and not all jurisdictions offer ADR programs.  The Fresno County Superior Court offers a multi-door opportunity for litigants to resolve their conflicts.  The focus of this thesis is to explore the question of how parties are moved successfully to the mediation table for advancement of their conflict resolution.  This project will minimally discuss the various alternative dispute resolutions utilized by the Fresno County Superior court; magnifying the use of the mediation process.  The mediation process will be described as a variety of models and how some models are the motivating factor for referrals’ use.  The process of mediating is not the focus of this work and will only be included as an informational element about the systemic processes that have been extensively explored and debated during the past several decades.  The successful advancement of conflict resolution is getting the conflicting parties into the mediation room.  This is the beginning point for all forms of mediation and will be the project’s major focus. The difficulty of bringing parties to the mediation table is a challenge of great meaning to the court and its referred parties.  Do the referrals come to the mediation table because of lower cost, empowerment, self-determination, fairness, justice, expedited resolution or knowing that they have been heard?  These factors will clarify that the traditional notion of choosing to mediate voluntarily renders weak the opportunity for disputants to resolve conflict alternately to the use of adversarial adjudication.  Referrals’ compliance to the Court’s legitimate rule to participate in the process of mediation to resolve injustices will expand the traditional acceptance that only voluntary choice to choose mediation produces fair and just results.  The process of mediation allows referrals in conflict to voluntarily empower themselves for the self-determination of their justice.  This process cannot occur if the parties never enter the process; whether it is voluntarily or by forced compliance.  This project will identify the best practices in achieving agreement to mediate.

              Complications have presented the court with due process questions.  Who provides mediation when one or more of the parties do not have adequate resources to satisfy court mandated alternative dispute resolution?  If the court is providing fair and just a process for society and mandating a step in the process is not possible for disenfranchised citizens then, society must provide the means for this mandated act.  Recognizing the varying degrees of financial and educated competence to participate in the opportunity to mediate suggests that a system offering multiple options to meet the citizens’ variations is essential to a successful ADR program.  I will revile the existing court annexed ADR programs in the Fresno County Superior Court System and suggest several best practices that can satisfy the needs of those using the court system and the required needs to sustain the system.  What this means to me is there are those who have resources who use the system that will power over those who they bring into the system who do not have adequate resources.  This lack of resources inhibits access to legal counsel, ability to pay court fees and inability to comply with a mandated process step to mediate.  There are those who can pay court fees and choose to represent themselves without counsel.  A question arises, should they pay for a court mandated step (such as mediation)?  Should the court pay for mediation for those who have counsel and resources?  An equity and entitlement debate blocks the court’s ability to enforce compliance.  What the court system can offer a democratic society is a graduated, multi-door mediation system that meets the needs of each referral party in litigation.  Information and education about the options to mediate is not the question for me.  Informing and educating referrals about the process of mediation persuades them to realize the safety and fairness the process offers.  Bringing all the parties into a mediation room that offers safety, fairness, and the opportunity to be heard, is a mandate the court needs to manage within its walls and fund annexed referral resources provided by community partners (Kent, J., 2005).

 

CONTEXT

Why does the process of moving referrals of the court into a face-to-face meeting matter?  Can this be one of the first progressive steps in resolving conflict through the courts?  The numbers of parties initiating the court’s judicial intervention have spiraled through destructive conflict experiencing criticism, defensiveness, stonewalling and contempt (Gottman, 1999).  The adversarial process of the judicial system is many times the next acceptable step conflicting parties choose to manage and resolve their conflict in Fresno County Superior Court jurisdiction.  This process often directs the parties away from one another rather than toward one another to work toward constructive problem solving.  They are moved away from one another because of the gamesmanship established by the adjudicative process, such as:  rules of discovery, interrogatories, time delays and the introduction of professional advocates who act and speak for the parties.

              A definition of mediation for the local interest of this study is found on the California Department of Consumer Affairs website.  It defines mediation as:

Mediation programs provide an alternative method of resolving complaints without having to go to court. Through the mediation process, the individuals involved in a dispute work out their own solutions with the help of a mediator. The mediator does not enforce a decision on the individuals, but helps guide them in reaching a solution. Since the individuals involved in the dispute play active roles in resolving the program, they usually are comfortable and supportive of the solution.

Successful mediations often result in written agreements that are signed by both individuals in a dispute. If the parties do not reach a mutually agreeable solution, either or both of the parties may still file a court action.

Mediation procedures are voluntary, and usually take place in one or more sessions. Mediators usually are either trained, volunteer non-lawyers who reside in the community, or are paid individuals with backgrounds in law, psychology, or counseling. The mediator's role is to work with both parties in a dispute to identify the issues, reduce misunderstandings, clarify priorities, vent emotions, find points of agreement, explore new areas of compromise, and negotiate an agreement.

 

This study will explore the effect mandated mediation directives have on the results of dispute resolution agreements and participant satisfaction in the Superior Court of Fresno County’s Civil Division.  I will explore the constructive results forced compliance to mediate have in relation to the traditional concept that only voluntary choice to mediate allows for fair and just agreements that allow for constructive results.  I am proposing the primary notion that forced compliance to mediate does not produce constructive results is shortsighted.  What I’d like to do is compare this enhanced component of mediation and the constructive effects achieved by bringing court referrals to mediation by forced compliance as well as by voluntary inert methods.

Fresno County Superior Court has provided several avenues to refer parties in dispute.  These include:

•            Judicial Arbitration

•            Panel of Mediators certified by the Court

•            Mandatory Settlement Conference

•            Court Annexed Mediation Programs (FPU, SJCL, BBB)

These paths vary for who might participate.  Two audiences present themselves to the Court Annexed Mediation civil limited case program for utilization:  those who do not have resources for either legal representation or mediation, Propria Persona filing pleadings In Forma Pauperis and, with special exception, those who have the resources to pay for mediation but do not have legal representation, Propria Persona.  Those who have resources might more readily find resolution in the private sector.  Those without the resources of money, power or knowledge can get lost in the quagmire of the legal system (well described in the Kafka novel, “The Trial,”) and never achieve a fair experience of justice.  Comments made by those without legal counsel, pro se, whether they be complainants or respondents in the Fresno County Superior Court, have been:  “I don’t know what to do, I wish I’d known about mediation before, I can’t trust them, the system is difficult to use.”

How do information, education and persuasion along the continuum of voluntary choice verse forced compliance cause negative results or positive results when mediation is utilized to produce agreements?  Prevalent theoretical practices suggest that parties voluntarily brought to the mediation table can leave the mediation room with a satisfactory agreement.  This theory is supported mostly by community mediation center studies (Bush; Folger).  The Fresno County Superior Court has sponsored, through state legislated funds, several pilot projects since 1999.  These programs have generated data supporting voluntary choice to mediate as well as court mandated compliance to mediate (mandatory settlement conferences).  Can the success of bringing respondents voluntarily to the mediation table be strengthened by providing varying degrees of information, education and persuasion and be strengthened by the use of forced compliance to effect positive results?  This question of expanding the mediation model and process to allow acceptance of an alternative dispute resolution model will be consistent and helpful in the field of constructive conflict management within the judicial framework (Brazil, Hon. W., 2003; Kent, J., 2005).  Some view forced compliance to mediate as a negatively producing factor in the results of mediation agreements.  There is a grey area where most people are in a position to be persuaded to positively accept the opportunity to mediate.  Magistrate Judge Wayne Brazil has urged that the process “democratized our institution (the courts) in potentially profound ways because mediation permitted, in fact actively encouraged, the parties to decide for themselves which values were most important to them, then to use ADR to pursue those values(Brazil, 2002).  Ignorance and misconceptions cause negative inducement to mediate; information and availability to mediate offer positive results.  The mediation field needs to be more open to accepting the insistence of mediation as a step in the adjudication process to help resolve disputes.  The attitude of due process can then accept the opportunity to exercise its use as a legitimate process.

Ninety five percent (95%) of cases filed in civil court ever make it to trial.    Three percent (3%) require a judge to make the final decree.  What happens along the path to trial that prevents respondents from settlement prior to the eleventh hour?

Moving a court referral through the mediation process is something that the traditional common law civil litigation system blocks.  The adversarial nature of the common law process requires the respective parties and their lawyers to investigate and present their cases to judges or juries.  Prior judicial precedent, stare decisis, is the basis forming the judicial opinion or finding.  Statutes, as well as the interpretation case law creates, bind judges to accepted or “once accepted principles of civil behavior.

Court referrals have brought their fight to the court because they have not had the opportunity to problem solve their conflict, don’t know how to problem solve or don’t otherwise know how to resolve their disputes constructively.

The refined law that the United States society has built was intended to provide a fair process by which the common man can live.  Time, intelligence and experience have created a complex democratic society.  People elect legislators who create laws supposedly with their constitution’s best interest in mind; the executive branch enforces their interpretation of these laws and the judicial department judges their interpretation of the law, how valid laws are and administer the fair process of justice.

Those living in this state agree to live by the laws or stand responsible for the consequences of breaking the law.  Complexity develops when masters of our assimilated culture interpret a situation as being lawful that doesn’t fit with another’s interpretation.  This disagreement develops because one or both parties think the fair and equitable results have not been achieved.

How do you put cooperative structure with mandatory forcing structure to allow respondents to go through the door without gate keepers?  Detour doors don’t work.  Value driven is not enough.  The court has the opportunity to provide all those entering its halls a path to achieve fair and just resolution to their conflicts.  The respondents are less likely to choose a voluntary path outside the halls of justice because they only know adjudication as this society’s resolution process.  So many times recognition of the injustice creating conflict is the key these parties need to encounter mutually acceptable options to restore equity.  The court fight is always proving how wrong the other party is.

Exploring the concept of justice in the United States will couch this society’s position toward alternative dispute resolution.  There are three classical theories of justice:  Positivism, Social Good and Natural Right. (Noll, Pp. 265-272)  Theories of law from which the current model existing in the United States are important to this discussion about bringing court referrals to the mediation table because they set the thinking and attitude of conflict resolution strategy in a democratic society.  Self-determination in resolving conflict is what a democratic society strives for.  The use of jury trials was introduced to protect individuals from the ruling whims of a king.  As industrialization and entrepreneurs developed property and business contract rights so did the laborers develop human rights through tort and personal injury law?  Legislation in the United States tries to accommodate the whole society however, has recognized individual rights are primary in a democratic society.  Therefore, the mediation model of individual safety, empowerment and self-determination has become critical to the judicial process to resolve disputes of all natures.  This thesis will limit its focus to civil court litigation and the importance of bringing court referrals into a room where they can achieve fair and just settlements through their own power to resolve conflict.  The emphasis of this work will provide a working model that provides litigants information, education and persuasion to utilize mediation during the adjudicative process whether or not it is mandated by the supervising court administration.  This thesis matters to both the citizens in our democratic society who seek to preserve their unalienable rights to a fair, just and expedited justice system and to the court system who is charged with providing this process.  The court recognizes that there is more to the success of ADR than providing swift access to resolution within its walls.  NCA (no court room available) blockage to jurisprudence has been eliminated in Fresno County Courts due to the introduction of ADR practices since 1999.  Issues of blockage to the use of multi-option ADR court annexed programs by due process arguments against mandating mediation to help resolve disputes will be quelled by the data this project provides.  There are still many cases that are not provided with the opportunity to mediate to the determent of the parties achieving satisfaction in the court system.  This thesis will identify the best practices in achieving court referral agreement to mediate; recognizing the difficult part is getting them into a room to engage in the process.  This difficulty is true for all forms of mediation.

 

Background

 

              Law in the United States in the early 1900’s was focused on the purchase of real property and the problems of the title holders of this real property.  Capitalization of industry relied on a labor force that had been regulated by the customs of trade.  Labor began to organize to provide safety and fair compensation for itself.  The products produced by business and its labor developed the need for trade protection.  Government grew.  Regulations and taxation created public policy to manage this developing country.  Labor and civil rights came of issue requiring the government to protect its citizens with laws and court procedure.  Individual rights and entitlements have fashioned the complex adversarial society now experienced by its citizens.  The paradigm has been to use the laws and adjudication when resolving today’s conflict.  The court has tested and recognizes that many injustices brought before it can be efficient resolved using a conflict resolution model alternative to or in conjunction with the adjudicative process.  Efficiency is measured in terms of fairness, timeliness and allocation of resources.