Friday, January 28, 2011

Maryland’s Circuit Court Mediation Program: Changes to Rule 17

Title 17 of the Maryland Rules is currently the basis for the State Circuit Courts mediation programs. It defines various Alternative Dispute Resolution (ADR) processes, establishes general procedures for all court-annexed ADR procedures in Maryland, establishes minimum qualifications for ADR practitioners in court-annexed programs and establishes confidentiality protections for court-annexed ADR proceedings, among other provisions.

The ADR Subcommittee of the Maryland Conference of Circuit Court Judges is currently considering changes to Maryland Title 17 so it is timely and useful to take a look at experience in other states.

F. Peter Phillips, a commercial arbitrator and mediator and former Senior Vice President of the International Institute for Conflict Prevention and Resolution (CPR Institute), has written an interesting blog about New Jersey’s experience with its court-annexed mediation program. In many important aspects the New Jersey program and the Maryland programs are similar, so the lessons in New Jersey can and should inform the deliberations in Maryland.

According to Phillips, there are many problems with the New Jersey program including:

· A low rate of resolution and docket-clearing (around 30%);

· Failure to receive mediator reports within the time limits;

· Excessive time spent by court administrators filing paperwork, tracking down delinquent mediators, granting extensions of time and preparing OSCs for relatively small fee amounts;

· Other demands on court administration in support of a program that, in a time of resource constraints, is less mission-critical than other court operations;

· The court mediation programs constrain the growth of a quality-driven market in the State;

· Both good and poor mediators can have the same number of assignments, resulting in many parties and counsel having poor experiences in mediation (”The last mediator I had just wanted to split the baby.”); and

· As a consequence, mediation is considered “do-gooder” volunteer work for retirees and wanna-bes, not requiring professional skills (”So what do you do for a living, Mr. Mediator?”)

The bottom line, according to Phillips, is a program that:

on its face, looks like it would promote mediation and result in a deep pool of highly experienced mediators, while reducing judicial caseloads, actually has resulted in increased administrative burden to the courts; no demonstrable increase in rate of settlement (99% of civil cases in New Jersey settle whether or not they are mediated) and a derisive attitude towards mediation by the litigation bar.

Does this sound familiar to Maryland practitioners?

Now is the time for Maryland to change its court-annexed ADR program so that it works for the parties, for the courts and for the mediators. As Phillips suggests, court-annexed mediation should be designed so the parties – not the courts – chose the mediators (if they cannot agree, mediators should be drawn from a select and pre-approved roster based on their experience in the type of case), and paid by the parties at market rates for their professional services.

As Phillips succinctly states:

Mediators who overcharge are dealt like mechanics who overcharge — they don’t get re-hired. Settlement rates are higher; the process is taken more seriously because the participants are paying for it; mediator reputations are subject to a robust, quality-driven professional market; and the court doesn’t involve itself in anything other than receiving a yes/no report at the end.

The Maryland Conference of Circuit Court Judges should pay close attention to how the Maryland program is designed, including how mediators are selected and compensated. Proper incentives and program design will make a major difference in whether court-annexed mediation in Maryland works for the parties or not. Currently many attorneys see the Maryland program as a joke.


  1. Dan --

    Great post. As you note, Maryland's circuit court ADR program has several structural flaws that curtail the effective delivery of mediation services and the development of a high-quality mediation profession in the state. Chief among them are the current assignment process and capped hourly rates. These components undermine the process by removing one of the most important parts of the mediation process -- the selection of the mediator. Parties who select their own mediator will almost always feel more comfortable and confident in the process, and they stand a much better chance of utilizing someone with the right style and expertise for that particular dispute.

    There is currently a movement to change these components of Title 17 and allow parties the right/responsibility to select their own mediator. To further these efforts, I have forwarded a link to the New Jersey blog you cite above to the subcommittee currently examining Title 17.

    Thanks again for your work on this important issue.

    Erik Johnson
    Creative Dispute Resolutions, LLC

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