ADR in Colorado: a Vision for Restoring Community
ADR in Colorado: A Vision for Restoring Community
by Mary J. Mullarkey
Alternative dispute resolution ("ADR") has come a long way in Colorado since 1976 when then CBA President Dan Hoffman appointed a blue ribbon committee to consider alternatives to the growing costs of litigation.1 A walk through any courthouse shows that ADR is firmly entrenched in the Colorado Judicial Branch. Rooms are set aside for mediation, and signs announce scheduled meetings to evaluate cases for handling under various forms of ADR. The spirit of ADR is evident throughout the state courts, including multi-door courthouses2 in four judicial districts, six judicial districts mandating participation in mediation for domestic relations cases, three judicial districts mandating participation in the ADR process of the parties' choice in civil cases, and the remaining judicial districts referring cases to mediation or other forms of ADR on a case-by-case basis.3 The court of appeals refers cases to senior judges for mediation,4 and, overall, the voluntary use of ADR also has increased.5
Vision for ADR in Colorado
My vision for ADR in Colorado, however, goes beyond the institutionalization of alternatives to litigation in the court system. ADR's potential begins far earlier than the filing of a case; continues long after the resolution of a case; and extends to all of the people involved in and affected by disputes, including the lawyers who often represent the parties. My vision is that Colorado be a place where conflicts are resolved, both during and outside of court involvement, in ways that are constructive rather than destructive and also offer increased opportunities for building and maintaining community and connections among people. This vision requires a change in the legal culture in order to shift from an approach to conflict based on adversarial, win-lose concepts to one based on collaborative and consensus-oriented concepts. Although such change may be particularly difficult for some of us judges and lawyers because we are oriented by our training toward an adversarial, win-lose approach,6 many already have made the commitment.
For example, Chief Judge Ken Stuart implemented the first multi-door courthouse in Colorado in the Eighteenth Judicial District in Arapahoe County in 1995; Chief Judge Norm Arends of the 15th Judicial District (Baca, Cheyenne, Kiowa, and Prowers Counties) has attracted national attention for his use of mediation in family law cases; and magistrates in Denver make extensive use of non-adversarial ADR approaches in post-dissolution cases. This change in culture can be encouraged by changes in legal education and training and changes in governmental structures for resolving disputes. Specific interventions within the public schools, the law schools, the Executive Branch, and the Judicial Branch, can benefit all of us—the public, lawyers, state government, and the courts.
Litigation as a Last Resort
Disputes end up in court for many reasons, including a genuine need for public pronouncement of values and establishment of legal precedent.7 However, most private parties do not try their cases for the benefit of the public at large. They end up in court because they have become involved in a conflict that they have not been able to resolve. They also may be angry, hurt, or afraid, and they look to the courts to do justice in their case.
By its very nature, litigation is an adversarial, polarizing process. The differences among the parties are presented in sharp contrast. Each party's viewpoint may be exaggerated, and the judge is presented with an either/or choice, causing a win-lose result for the parties. Even for parties who win their lawsuits, there may remain a sense that justice was not done. A judgment may not be collectible or the judgment may be consumed by attorney fees and other costs of litigation. Time and energy may have been wasted or spent in amounts disproportionate to the issues involved. Relationships may be irretrievably damaged; emotional needs may be left unsatisfied.
A wise lawyer once told me when I represented a couple whose baby had died that the parents could not be made whole by money damages. All of us can relate to the following example, which may be apocryphal. A lawyer fought hard to get a good settlement for his client, a woman who had lost two children in a fire. When he gave her the check, proud to have negotiated a considerable sum, she threw the check down and said, "What good does this do me? It won't bring my children back." This example clearly illustrates that not everything can be reduced to money. ADR could not have brought her children back either. However, mediation offers the possibility of a process and solutions that help to redress the emotional needs at stake in such cases. Although appropriate and necessary for some disputes, litigation is not appropriate for all disputes or for all stages of a dispute. Sometimes litigation would be better considered as a last resort.
ADR's Potential
ADR has been promoted in large part based on its potential for saving parties and courts money and time. All types of ADR share this "efficiency" potential; that potential is certainly reason to continue to explore and expand ways in which ADR might be useful. Viewing ADR simply as a management tool, however, ignores ADR's significant potential as a vehicle for building community and encouraging connections among people.8
ADR's potential as a tool for building connections and community lies in those ADR processes that are based on collaboration and consensus-building. Much of the discussion about ADR refers to "ADR" as if it were one undifferentiated "thing." ADR is actually many separate processes. Some ADR methods are very different from each other, just as rock and roll and classical are very different types of music, evoking different moods. The community-building potential is shared primarily by interest-based forms of ADR, of which the most well known is mediation.9
Mediation works to minimize the destructive effects of conflict, by working toward a voluntary agreement that is acceptable to all of the parties. Keys to reaching agreement include focusing on the parties' interests (the needs and desires which underlie their positions) and using a collaborative approach to develop an integrative ("win-win") solution.10 Mediation at its best can achieve greater mutual understanding and healing of the rift in the relationship between the parties. Mediation can result in agreements that improve the situations of all parties. At its worst, if an agreement is reached, it allows parties the opportunity to limit their losses and to accept the result as the best they could obtain under the circumstances. Even if no agreement is reached, parties still may leave with greater mutual understanding.
K-12 Education
How do parties end up in court, without having first attempted other methods of resolving their dispute? First, let us start with the assumption that conflict is inevitable.11 People end up in court as a first resort because they have not learned and practiced the skills or processes that would give them more choices. To learn how to address conflict constructively, people must understand and know how to utilize the necessary skills and models for conflict management and resolution. The best public mechanism we have for accomplishing this result is to teach conflict resolution skills and processes in our schools.12 Some of these programs are already in place, and range from teaching students anger management and conflict resolution to peer mediation programs in which students are trained to act as mediators for student disputes.13 Several times I have talked with elementary school children who have been trained to help resolve schoolyard disputes. Their understanding of the dynamics of those disputes and of the appropriate methods of intervention is surprisingly sophisticated.
Lawyers currently participate in some of these programs, and opportunities for such participation could be increased.14 Peer mediation programs analogous to teen court programs could be developed through Bar sponsorship and lawyer participation. All of us benefit from such programs. Not only is the learning environment at school immediately improved, but there are long-range benefits as well. Lawyers and their future clients will be better skilled at preventing and managing conflict and choosing the most constructive methods of dispute resolution.
Legal Education
Perhaps it underscores the obvious to observe that people also end up in court because they consult with lawyers. Lawyers play a critical role as one of the primary gatekeepers to how disputes of all kinds are resolved. Although the Judicial Branch can promote ADR, it is the lawyers who implement ADR. Certainly this is nothing new. Lawyers have always helped clients make choices that do not involve the courthouse, and they do so by using various ADR techniques. Consider, for example, transactional matters or client counseling prior to any involvement in litigation. Therefore, lawyers greatly influence their clients' choices to increase or decrease the likelihood of future disputes and to increase or decrease the level of violence and hostility with which their clients resolve existing disputes.15
Although Colo. RPC 2.1 states that lawyers should advise their clients of alternatives to litigation16 and lawyer acceptance of ADR appears to have increased over the last fifteen years, many lawyers still have difficulty advising their clients about appropriate avenues of dispute resolution. This deficit exists in large part because of lawyers' educational history. First, many if not most of us did not have the benefit of conflict management training and education in our primary, high school, and undergraduate schools. Second, most of us had insufficient or no education in ADR during law school. Although it is now common for law schools to offer an academic class on ADR, it is rarely required. An academic class is helpful, but it is generally insufficient by itself to convey the nature of an ADR process such as mediation. Some level of skills training or experiential learning is required to convey the complexities, advantages, and disadvantages of mediation.17 More law schools are beginning to offer clinical courses in mediation, but they generally reach only a tiny proportion of the student body.18
The traditional law school training that we lawyers receive molds our approach to conflict resolution to conform with two principles: (1) that disputants are adversaries facing win/lose outcomes, and (2) that the dispute can be resolved only by a third party who applies a general rule of law.19 This orientation blinds us lawyers to the potential advantages of other dispute resolution processes, and in particular can blind us to mediation, which assumes that (1) all parties can reach a mutually beneficial resolution and (2) each situation is unique and need not conform to any general principle.20 This orientation to "win at any cost" also can lead us lawyers to escalate clients' disputes unnecessarily, and might be a contributing factor in the antagonism often prevalent among lawyers.
Many benefits could result from changes in legal education to include additional theory and practice in dispute resolution approaches, including:
- Enabling lawyers to advise their clients properly as specified in Colo. RPC 2.1
- Enabling lawyers to help their clients select an appropriate dispute resolution process and to participate effectively in that process
- Reducing the escalation of disputes and attendant costs
- Reducing unnecessary animosity and improving professionalism among lawyers
- Building better relationships among lawyers and their clients.
In short, participating in non-adversarial ADR processes in law school would give lawyers concrete experience with resolving disputes collaboratively. Having that educational experience would promote the well-being of the legal profession by enabling lawyers to better serve the public.
ADR in the Executive Branch
There is strong potential for the use of ADR in many areas of government enforcement. A training session was held in October 1998 to encourage use of ADR in state agencies.21 The Governor, Attorney General, and I signed a letter supporting the training and encouraging participation. Our letter followed the issuance of a memorandum by the Attorney General outlining the parameters of government participation in ADR. The importance of increasing the use of ADR in state government is twofold: first, its use will promote the benefits outlined above; second, increased use of ADR will establish state government as a model to emulate, creating an atmosphere in the state of encouraging constructive methods of conflict resolution. Efforts in this area should include not only increased use of ADR for existing disputes, but conflict prevention through use of consensus-building processes in all phases of government.22
ADR in the Judicial Branch
Since 1983, the Colorado Dispute Resolution Act ("Act") has given courts explicit authority to refer cases to mediation.23 The Act subsequently was amended to extend this authority to include other types of dispute resolution. House Joint Resolution 97-1020 encouraged the courts to make further use of the Act.
In the early to mid-1980s, ADR focused largely on mediation in domestic relations cases.24 ADR spread to include civil cases with the mandatory arbitration experiment in the late 1980s. Although the mandatory arbitration experiment was dropped, use of ADR continued with the increase in court-ordered ADR (parties' choice of process) for civil cases beginning in the mid-1990s.25 Paralleling these efforts has been a growing interest in the applicability of ADR to criminal cases. Its origins can be traced to the victim-offender reconciliation and mediation programs that date back to 1974.
The philosophy behind victim-offender mediation is one of the underpinnings of the current restorative justice approach to criminal cases. That approach is not a substitute for punishment. Rather, restorative justice seeks to address the harm done by the crime to the victim and the wider community. It has been used successfully with juveniles in property crimes by bringing together the victim (if he or she consents) and the offender.26 By holding the offender accountable, yet creating opportunities for successful re-integration of the offender, restorative justice strives to make whole the victim and the community.27
Conclusion
As summarized in this article, Colorado courts now make substantial use of the Colorado Dispute Resolution Act, but the courts could go further in promoting the use of ADR to resolve conflicts. Should we consider mandatory non-binding ADR? While the "one size fits all" approach of mandatory arbitration did not work, the possibilities for success are much greater with the wide variety of ADR techniques available. It is a cost, but perhaps a relatively small one, to require people to attempt to resolve their conflicts constructively and to attempt to maintain connections and build community through a nonbinding, noncoercive ADR process28 before resorting to the adversarial court process. The potential benefits in comparison to the cost are immeasurable.
NOTES
1. Briggs, "ADR in Colorado: Past and Present," 26 The Colorado Lawyer 103 (June 1997).
2. The concept of the multi-door courthouse was first suggested in 1976 by Harvard Law Professor Frank E. A. Sander at the Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (commonly referred to as the "Pound Conference"). Sander proposed assigning certain cases to alternative dispute resolution processes, or a sequence of processes, after screening in a DisputeResolutionCenter. Alternative approaches to case screening include screening by judges or administrators at the courthouse, by the lawyers representing the parties in the case, or by the parties themselves. Case screening can be categorical (e.g., by case type, age of case, amount of claim, or other common factor), individualized, or both. See, e.g., Gray, "Multi-Door Courthouses," A Working Paper for the National Symposium on Court Connected Dispute Resolution Research, Oct. 15-16, 1993 (State Justice Institute, Sept. 1993).
3. Use of ADR also has increased in the federal system; for example, the federal Alternative Dispute Resolution Act of 1998, requires U.S. district courts to authorize the use of ADR processes in all civil actions. 28 U.S.C. § 651(b). For a summary of the Act, see Martin, "The Alternative Dispute Resolution Act of 1998," 28 The Colorado Lawyer 37 (April 1999).
4. Thirty-two cases were mediated during 1998, with an approximate 50 percent settlement rate.
5. The Judicial Arbiter Group estimates that approximately 75 percent of their cases are voluntary users of ADR.
6. Riskin, "Mediation and Lawyers," 43 Ohio State L.J. 29, 44 (1982). Professor Riskin calls this "the lawyer's philosophical map."
7. See Fiss, "Against Settlement," 93 Yale L.J. 1073 (1984).
8. See, e.g., Bush and Folger, The Promise of Mediation (San Francisco, CA: Jossey-Bass, 1994); and Dukes, "Public Conflict Resolution: A Transformative Approach," Negotiation Journal 45-57 (Jan. 1993).
9. "Interest-based" solutions integrate the parties' needs to achieve a "win-win" result, as opposed to distributive solutions in which a gain to one party is always a loss to another. See Fisher, Ury, and Patton, Getting to Yes (New York, N.Y.: Penguin Books, 2d ed. 1991); see also Riskin, supra, note 6 at 57 (mediation can improve quality of life "because it fosters interaction among people and empowers them to control their lives").