One of the many impacts of the Chief’s 100% resolution is that it is starting to stimulate discussion in many communities that are or should be part of the broad 100% solution.
So it is great to hear that Resolution Systems Institute is promising the start such a debate within the Alternative Dispute Resolution community.
By specifically calling for access to justice in “dispute resolution institutions,” Zorza has invited input from organizations like RSI in developing an understanding of what access to ADR looks like, how it can be achieved, and how it relates to the overall concept of ATJ. We have long understood the potential ADR has as a tool for underrepresented parties, and are beyond thrilled to see other stakeholders in the justice community make that tool a greater priority.
Over the course of my next three blog posts, I will respond to this invitation by sharing examples of how we are currently using our expertise in dispute system design to improve access to justice in the foreclosure mediation programs we administer. Each of these posts will serve as a portrait of how to apply principles of careful dispute system design to promote access to justice through ADR. I welcome your comments on how ADR enables justice and hope to utilize your experiences as a way of framing this conversation.
I look forward to reading these posts. Let me also suggest some focusing questions that may be useful as the broader discussion moves forward.
- Triage. How do we develop legitimate and accurate protocols to decide where and how ADR fits into the dispute resolution process? There will be types of cases in which it is appropriate for all cases, others for none, and others for some. Developing those rules, testing them, and figuring out how to collect the data and apply them as early as possible in the process is critical. It will be helpful that there is already pretty broad consensus within the 100% world that relative power or powerless is an important component of triage as to what assistance litigants need, and I would assume that that is already generally considered a major component in the ADR appropriateness analysis that is already being done, I would hope routinely.
- Consent. How and when, if ever, should ADR be mandatory becomes even more critical when it is integrated into a comprehensive system.
- Dynamic Triage. Triage needs not be to a single in-out decision. Circumstances may change, so triage needs to be dynamic, with the decision under regular and perhaps constant review.
- Integrated Triage. In fact there are really three kinds of triage, that by the litigant, that by the court, and that by any assisting agency. A decision or change in any of the three will, or rather should, trigger consideration of change in the other two.
- Role of Neutral. As forms of ADR move into the 100% access system, the role of the neutral becomes even more important. To put it bluntly, there are practices in many states that muzzle the neutral from ensuring that both sides are fully informed in the process, and understand their rights and the implications of choices. So long as these stay in place, many participants in the triage design process will be pressuring to limit use of ADR to cases in which litigants are in no need for such a role being played by the neutral. This will significantly reduce the extent to which ADR models are included.
- Use of Nonlawyers. As is now well known, expanded use of nonlawyers is being piloted in several jurisdictions. Permitting nonlawyers to assist litigants in ADR, even without supervision, would help expand the pool of cases appropriate for ADR triage.
- Outcome Measures. With the committement in the Chief’s Resolution to “achievable and measurable outcomes” in strategic planning for full access, the importance of accurate, credible, and comprehensive measures becomes even more important, and ADR advocates will need to be ready to have their outcome measures integrated into overall system measures for comparability.
I hope this is helpful, and do indeed look forward to following the discussion.