September 2000: Volume 8, Issue 3
Department of Dispute Resolution Services Who Are They?
In an effort to assist Virginia's courts to anticipate and prepare for the challenges and opportunities of the Twenty-First Century, in 1987 Chief Justice Harry L. Carrico appointed a 34-member Commission on the Future of Virginia's Judicial System. The Commission's charge was to develop a "vision" for an effectively functioning justice system, which would meet the changing needs of the citizens of the Commonwealth.
In its Report issued in the Spring of 1989, the Futures Commission articulated ten major "Visions" or recommendations for the judicial system to continue meeting its core mission - the just resolution of disputes. The Commission acknowledged that new emphasis would be placed on the methods of dispute resolution and that the mechanisms used must seek to resolve the dispute, not simply to decide the case. The essence of Vision Three of the Futures Commission Report is the recognition that, in order to offer the most effective, responsive, and appropriate methods for resolving disputes, the justice system must offer alternative dispute resolution programs along with adjudication.
The judicial system, by offering an array of dispute resolution options, would enable parties to select a process that best meets the needs of their case. Adjudication would no longer be presumed to be the most appropriate forum for resolving all disputes. These new methods of dispute resolution would enable parties to deal with the underlying issues in dispute. In addition, these processes have the advantage of providing parties with the opportunity to reduce hostility, regain a sense of control, gain acceptance of the outcome, resolve conflict in a peaceful manner, and achieve a greater sense of justice in each individual case.
Pursuant to the Futures Commission's recommendation, and in recognition of the growing national trend for dispute resolution options to be provided by the court system, the Department of Dispute Resolution Services was created within the Office of the Executive Secretary in 1991. A Director and Administrative Assistant staff the Department.
The Department of Dispute Resolution Services serves as a centralized alternative dispute resolution (ADR) resource office within the judicial branch. The goals of the Department of Dispute Resolution Services include:
- To develop within the judicial system a range of options that provides the capability of resolving disputes in a manner most effective for the dispute involved.
- To encourage and promote the use of alternative dispute resolution in all judicial circuits with information and support.
- To encourage the creation of alternative dispute resolution programs by community providers and to investigate funding sources for such programs.
- To serve as a clearinghouse for information on alternative dispute resolution programs and activities and maintain a library of dispute resolution resource material.
- To develop, where appropriate, and evaluate experimental or pilot alternative dispute resolution programs, including a multi-door courthouse program.
- To identify alternative dispute resolution resources around the State and maintain a productive, working relationship with these programs, as well as to serve as a source of referrals to qualified providers.
- To provide materials and assistance in improving public understanding of alternative dispute resolution programs.
- To provide training and education programs to alternative dispute resolution practitioners, court personnel, law enforcement personnel, businesses, students, members of the Bar, judges, and the general public.
- To evaluate the effectiveness of State-sponsored alternative dispute resolution programs in terms of cost-effectiveness and timeliness relative to traditional adjudication.
- To determine to what extent the use of alternative dispute resolution programs may reduce the civil workload of Virginia courts.
- To support the introduction of conflict resolution education in the public school curriculum and the development of peer mediation programs.
- To develop legislative initiatives to support the implementation and furtherance of alternative dispute resolution programs.
- To develop a working relationship with all statewide programs as well as national organizations that provide research and information on alternative dispute resolution.
Over the last several years, the Department has done a number of things to support and advance the field of alternative dispute resolution. The Department developed legislation which, on July 1, 1993, became effective and enables Judges to refer litigants to a "dispute resolution evaluation session." Sections 8.01-576.4 et.seq. of the Code of Virginia define a dispute resolution evaluation session as an opportunity for the parties and their lawyers to learn about dispute resolution options available to them after which they may decide to continue with adjudication or try a different dispute resolution process.
Guidelines for the Training and Certification of Court-Referred Mediators, which set out training/observation/and mentorship requirements for General District Court, Juvenile and Domestic Relations District Court and Circuit Court mediators have been established to ensure a requisite level of competence in those mediators who serve the courts. Standards of Ethics and Professional Responsibility for Certified Mediators have also been adopted. Complaint Procedures, Client Evaluation forms, and continuing mediation education and experience requirements for recertification were also developed to ensure that consumers of mediation services are able to receive consistently high-quality services. A Certificate in Advanced Civil and Advanced Family is also available to those mediators who show evidence of advanced training and significant experience in the field of mediation.
In 1992, the Office of the Executive Secretary received two grants to develop and implement pilot programs in Prince William/Manassas/Manassas Park and Richmond. Both programs operate under a model in which a Dispute Resolution Intake Coordinator, located in the courthouse, screens cases to make a preliminary assessment as to whether the case is appropriate for an alternative dispute resolution process. For appropriate cases, the Coordinator conducts an individual dispute resolution evaluation session to allow the parties to learn about the dispute resolution options available to them. Following the evaluation session, the parties may voluntarily agree to proceed with an ADR process, like mediation, or continue with adjudication. If the parties try an ADR process, but do not succeed in resolving their dispute, they may return to court.
The Department of Dispute Resolution Services received a grant for $62,000 in 1997 from the Department of Social Services (DSS) to expand the provision of custody and visitation mediation around the state. DSS again awarded OES $60,000 in 1998 and approximately the same amount in 1999 to continue custody and visitation mediation.
In an effort to encourage the use and expansion of mediation, the Office of the Executive Secretary awards contracts to mediators around the state to provide mediation services to the courts of Virginia free of cost. Mediation contracts have introduced mediation to the courts, encouraged judges to refer cases to a dispute resolution evaluation session, provided no-cost mediation services to users of the court system, and compensated mediators for their invaluable services. In 1998, the General Assembly included $200,000 in the biennium budget for mediation contracts. This funding enabled OES to implement thirty-eight public-private partnerships. The Governor's 1999-2000 budget included an additional $100,000 for mediation contracts. The 2000-2002 biennium budget includes $500,000 for mediation contracts for fiscal year 2000-2001 and $700,000 for fiscal year 2001-2002.
While mediation works well in numerous areas, it has proven to be particularly effective in family cases. As a means to provide funding to support court-connected mediation in custody, visitation and support cases, the Judicial Council recommended an amendment to Virginia Code Section 20-124.4 that would provide compensation to mediators for their services. Senate Bill 127 passed the 2000 General Assembly, was signed by the Governor, and went into effect July 1, 2000. Senate Bill 127 states that the fee of a certified mediator appointed in any custody, visitation, or support case shall be $100 per court appointment and shall be paid by the Commonwealth from funds appropriated for payment of appointments made pursuant to subsection B of 16.1-267.
In an effort to encourage the use of mediation by the courts, particularly the Circuit Courts, the Department of Dispute Resolution Services provides ongoing education to judges on ADR. The State Justice Institute funded an alternative dispute resolution conference for both the District and Circuit Court judges in 1997. The October 1998 Circuit Court Judges Conference included an ADR track of programs. Individual meetings are often held with the judges to discuss the integration of mediation into existing court procedures.
The Department of Dispute Resolution Services presents many educational seminars to members of the Bar. The Department has, for the last six years, offered a course called Advocacy in Mediation with the Virginia CLE in four locations around the State. The course is well received and well attended. It focuses on teaching attorneys about mediation and how to represent their clients in the mediation process. The Department also makes presentations at various local bar association meetings on mediation. The Department cooperates with the Joint VSB-VBA Committee on ADR in its efforts to advance dispute resolution in Virginia.
The Department works with an Advisory Council that provides ideas and feedback on ways to expand ADR. The Department also has subcommittees that focus on the areas of Training, Certification, Ethics, Legislation, Marketing and Education. The Training and Certification Committee recently revised the Guidelines for certification and developed new trainer qualifications. The Ethics Committee revised the Standards of Ethics in 1997 and more recently is addressing concerns related to ethical requirements that conflict with some national and federal mediation programs. The Marketing Committee developed the Consumer Guide to Mediation a few years ago and is on the lookout for funding to support the creation of a video on mediation for the courts to educate litigants. The Education Committee assisted in preparing materials for Virginia's schools on conflict resolution and peer mediation. The Legislative Committee is reviewing the dispute resolution proceedings statutes and drafting possible amendments to the statutes.
The Department is actively involved with the Community Mediation Centers, the ADR community, and the Virginia Mediation Network. The Department publishes a newsletter, Resolutions, on a quarterly basis. Resolutions discusses the latest developments in the field of alternative dispute resolution in Virginia and is provided to the courts, attorneys, and ADR community free of cost. A Directory of all Certified Mediators is also published annually and provided to all the Courts in the State. This Directory is also available on the Supreme Court's home page www.courts.state.va.us. In March 1997, the Department sponsored a Conference free of cost on the issue of Mediation and the Unauthorized Practice of Law attended by over 350 mediators. The Department received a State Justice Institute grant to develop Guidelines on Mediation and the Unauthorized Practice of Law. A Conference was held in August of 1999 to assist mediators in understanding the complexity of this issue. The Department is currently assisting the Williamsburg Juvenile and Domestic Relations District Court with an SJI grant to study the appropriate timing of referral of cases to mediation. The results of this study will be shared with the Juvenile Judges in the Spring of 2001.
The Department looks forward to continuing to try to meet the objectives set forth by the Futures Commission. The following is a current list of the membership of the Advisory Council and the active subcommittees. If you have questions regarding the role or responsibilities of the Department of Dispute Resolution Services, please feel free to contact us at 804-786-6455.
ADR Advisory Council ADR Training and Certification Committee
Karen Decker, Chief Magistrate William Barrett
Honorable G. C. Fairbanks Edwin Bumbaugh
Merri Hanson Morna Ellis
Torrence Harman Katherine Fairfield
Samuel Jackson, Jr. Frances Fite
Cynthia Jessup, Clerk Merri Hanson
Dotty Larson Torrence Harman
Honorable Kathleen MacKay Barbara Hulburt
Paul Metzger, Clerk Thomas Moncure, Jr., Clerk
Carolyn Miller Catherine Moore
Thomas Neary, Clerk David Michael
Honorable Cleo Powell Harris Parker, Chief Magistrate
Mark Rubin Honorable Margaret Spencer
Honorable Margaret Spencer
ADR Legislative Committee ADR Ethics Committee
Alfred Bridger Karen Asaro
Eddie Bumbaugh Carl Hahn
Larry Hoover, Jr. Larry Hoover, Jr.
Barbara Hulburt Dotty Larson
Samuel Jackson Honorable Kathleen MacKay
Dotty Larson John McCammon
Honorable Kathleen MacKay James McCauley
John McCammon Frank Morrison
James McCauley Thomas Neary, Clerk
Honorable Margaret Spencer
Honorable Diane Strickland