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.