Progress on the N.J. Mediation Front
MAXIMIZING THE BENEFITS TO THE JUDICIARY, LITIGANTS AND ATTORNEYS
By Laura A. Kaster and N. Janine Dickey
New Jersey Law Journal
March 14, 2013
The Civil Presumptive Mediation Program, part of the New Jersey court-annexed Complementary Dispute Resolution program (CDR), has been the subject of re-examination and rule change and hopefully renewal in 2013. It is still under scrutiny by the Supreme Court, but the CDR Committee of the Administrative Office of the Courts (AOC) obtained an extension of the review through mid-2013, and its prospects are looking up. It is a good time to pause, reflect and plan for an even better future for this important program that has served to change the legal culture, expand alternatives for litigants, and reduce costs to both the parties and the courts during these fiscally challenging times.
The New Jersey program — the envy of many other states — grew out of a prestigious Supreme Court task force led by Justice Marie L. Garibaldi, which held public hearings and issued a final report in 1990.
In evaluating the CDR program today, it is important to keep in mind the goals that gave it life. Among the stated goals was the desire that “litigants should have available at all levels of their court system a full set of options for the resolution of disputes ….” To this end, a CDR program would have to “[e]ncourage the confidence and respect of disputants and the general public in the fairness, integrity, and justness” and “be as efficient as possible in terms of the cost and time required of both the system and the disputants.”
CONCERNS: ADDRESSED AND RESOLVED
Starting in 2010, there was a groundswell of concern among court administrators that the program was an inordinate burden on their and the judges’ time because, among other things, it required periodic reporting, set a very early date for the mediation that sometimes was inappropriate, and allowed the mediators to seek unpaid mediation fees by way of an order to show cause. The CDR Committee addressed these issues and very promptly made changes to Rule 1:40, including: eliminating reporting except at the completion of the mediation; extending the time for mediation; permitting mediators to assist the court in case-management; and eliminating the order to show cause. Extensive FAQs were made available on the judicial website. And the NJSBA Dispute Resolution Section developed checklists correlated to the Amended Rule and FAQs for mediators and advocates. These efforts have been very well-received and seem to have met the articulated concerns.
EVALUATING THE PROGRAM
However, the focus on the burden to the court personnel was, at best, only one side of an equation. To measure the real success of the program, even on a purely monetary basis, we would have to weigh and compare the time and money saved by the court system and the parties who were the focus of the Task Force’s goals.
Those who disfavor the program argue that the vast majority of cases do settle before trial — 97 to 98 percent nationwide — concluding that mediation doesn’t add much. But there is a time value of resolving a case much earlier in the process before the court has to rule on multiple motions and before the parties incur significant expenses on the costliest aspect of litigation — discovery.
Unfortunately, cost has limited the ability to undertake a New Jersey study. But California did fund a very careful study of an early mediation pilot program, very similar to New Jersey’s, that assigned a value to the time saved by the court system by resolving cases early. California found that early mediation programs help courts save judicial time and money. In its Evaluation of the Early Mediation Pilot Programs, AOC (California), Feb. 27, 2004, a scientific study assigned a monetary value to both court time expended and court time saved by the programs. It found that, in San Diego, 479 judge days were saved by the program. That was a monetized savings of $1.4 million per year. In Los Angeles (a more limited program), 132 judge days were saved, equating to $400,000. Litigants’ costs were reduced 61-68 percent, and attorney hours saved were 57-62 percent. The savings continued after mediation because there were fewer post-disposition compliance issues. Mediation increased litigant satisfaction and was important to the ultimate settlement in 74 percent of the cases.
The Department of Justice has also studied the administrative cost to it versus the administrative savings of mediation and found that the savings far outweigh the costs. It found year over year increases in the savings, and also found that the vast majority of cases benefit even when mediation does not result in immediate settlement. www.justice.gov/olp/adr/doj-
These studies confirm the benefits envisioned by the New Jersey Task Force. So how can we help CDR flourish in New Jersey?
EXPANDED RULE CHANGE BENEFITS
Rule 1:40 originally contemplated that all mediations would be conducted within 90 days from the filing of defendant’s answer. Some attorneys objected to being “pushed” into early mediation. The September 2011 rule changes cured this problem, giving mediators greater leeway to schedule the mediation at any point prior to the discovery end date. This scheduling flexibility should permit mediators to tailor mediation schedules.
Permitting later mediation when appropriate also provides greater opportunity for mediators to assist with case management. With judges overburdened, litigants and attorneys can benefit from the assistance of a mediator acting as neutral discovery facilitator, identifying critical discovery to exchange prior to mediation, timing the exchange of documents and expert reports, sequencing depositions, etc. Case-management training is now part of the continuing training requirements under the Sept. 2011 Rule 1:40 amendments.
Trusting the competence of a mediator is an important factor that enables the parties and counsel to use the full range of a mediator’s skills and services. The amended Rule 1:40-6(b) encourages attorneys to “party-select” a roster mediator of within 14 days after entry of the Mediation Referral Order without foregoing entitlement to two free hours of mediation services. The “court designated” mediator becomes the mediator of record only if no “party selected” mediator is named. Given the overburdened judicial calendar and vacancies that significantly delay both disposition of discovery motions and trial dates, mediation may shave months or even years off the time to obtain a final disposition from the court.
EARNING RESPECT: MEDIATOR QUALITY AND PROFESSIONALISM
The legal community’s reaction to the court-sponsored mediation program currently varies from passionate support to push-back at required participation. Why the discrepancy and how can it be addressed?
The key to encouraging confidence and respect in the “fairness, integrity and justness” of the program lies in assuring that roster mediators are committed to treating mediation as a profession. Better experiences and greater respect by disputants, attorneys and the judiciary will, in turn, foster cooperation for creative and expanded uses and benefits of mediation.
New Jersey’s court-mandated mediation program serves as a gateway and an education in mediation for all the parties and counsel that participate. The initial experience with the mediation program — positive or negative — is likely to significantly impact the participants’ respect for the mediation process, and will influence their future voluntary participation in mediation outside the court-ordered program.
So how can we move closer to this goal? The ABA’s Model Standards of Conduct for Mediators, Standard IV, Competence states:
A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties …. A mediator should attend educational programs and related activities to maintain and enhance the mediator’s knowledge and skills related to mediation.
The programs that are most successful in other states impose greater training demands and require practice as a mediator, shadowing other mediators, mediating smaller cases and ongoing work as a mediator. Studies have also shown a direct correlation between a mediator’s actual case experience and higher settlement rates.
The roster mediators often introduce parties and sometimes attorneys to the mediation process. They should be committed and able mediators. Therefore, continued roster membership should require ongoing learning and ongoing practice. But New Jersey’s large pool of 620 roster mediators means each roster mediator may be assigned only one or two cases annually and is unlikely to gain significant actual mediation experience solely from the court program. A commitment to do one or two mediations a year is not sufficient to achieve mastery.
To create and sustain the quality needed to lift the system and allow it to enhance the promise of mediation acceptance, every roster mediator needs to undertake that role as a committed professional. Continual training and practice are critical. Advanced skill training, apprenticeship programs and opportunities to conduct mediations are widely available. Both the Dispute Resolution Section of the NJSBA and the New Jersey Association for Professional Mediators provide collegiality and a wide variety of opportunities to improve and enhance mediation skills.
Perhaps it would change the performance of roster mediators and the perception of lawyers, litigants and judges, if each roster mediator pledged as follows:
Recognizing the duty under the Model Standards of Conduct for Mediators that: “A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties,” I pledge to undertake the ongoing training and practice necessary to assure a professional level of commitment and accomplishment as a mediator.?