Lawyers Journal

Now is the time to institutionalize ADR into the court system

Without delay, the Massachusetts court system should promptly institutionalize alternative dispute resolution (ADR), as it will benefit the courts, attorneys and the litigants involved. Long has there been abundant experiential evidence to back the advocates of this effective and more civil alternative to trial.

Fifteen years ago, the Supreme Judicial Court, in close consultation with the chief justice for administration and management, issued a policy statement on dispute resolution alternatives. Since then, the policy has not been rescinded or repealed.

The Court said then that the "judicial branch should make available appropriate [ADR] to the traditional process of adjudication." Furthermore, the court noted that "the availability of [ADR] in the courts should not depend on the financial resources of the parties. The judicial branch will make every effort to obtain adequate resources for these services."

In issuing a policy statement on this topic, the Court acknowledged the large body of evidence in support of dispute resolution, in that when applied early in the process, "reduces the cost, time and complexity of litigation in our courts."

The Court also emphasized that this alternative "promotes greater satisfaction on the part of litigants and their attorneys." Since the initial statement in 1993, the body of global evidence has grown significantly to corroborate the efficacy and use of ADR throughout the United States, the European Union and western democracies. Indeed, ADR is the preferred dispute resolution process for "corporate America."

The Court’s policy statement went on to create a Standing Committee on Dispute Resolution to guide the CJAM and SJC through the process of incorporating ADR into the system. Commendably, the standing committee developed the Supreme Judicial Court Uniform Rules on Dispute Resolution, governing court-annexed ADR. The Trial Court Standing Committee on Dispute Resolution succeeded the SJC’s standing committee and was charged with implementing the uniform rules throughout the Trial Court system.

In December 2005, the Trial Court Standing Committee on Dispute Resolution convened four working groups to propose plans to implement ADR across all Trial Court departments. After 10 months of careful analysis, in September 2006, all four working groups recommended to the Trial Court standing committee that immediate action be taken to implement ADR within our court system and throughout the commonwealth. The first step in that implementation was consensus building.

The Court Systems Working Group (CSWG) notably recommended that the CJAM issue a directive to Trial Court Department chief justices requiring the integration of "presumptive ADR" into time standards and case management systems in each Trial Court department. Under this policy directive, with the exception of some classes of cases that may be inappropriate for ADR, all civil cases would presumptively engage meaningfully in an initial ADR session. The CSWG also recommended that the role of the local ADR services coordinator in the Trial Court divisions and the role of the department ADR coordinator outlined in the uniform rules be strengthened and supported.

Who would most benefit from the adoption of these recommendations? According to the CSWG, the primary beneficiaries would be the courts and litigants. Universal experience demonstrates that the courts benefit from the effective use of ADR as a tool for expediting high-quality resolution of cases (both those cases resolved through ADR and those reached more expeditiously through trial as a result of lightened dockets). Litigants coming to court for justice and an opportunity to be heard have a chance to access high-quality, low-cost processes to resolve disputes in a timely manner that emphasizes self-determination and workable solutions. An opportunity for trial always exists if needed.

These ideas are strikingly similar to those stated in the Chief Justice’s Commission on the Future of the Courts, Reinventing Justice, 2022 (1992). A portion of the commission states that "institutionalizing ADR means that the commonwealth’s courts must accelerate the incorporation of [ADR] into the justice system, even as adjudication is improved."

Now is the time to institutionalize ADR across all seven Trial Court departments.

 

Mohandas K. Gandhi practiced law. He wrote: "My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realized the true function of a lawyer was to unite the parties driven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby — not even money, certainly not my soul."

©2014 Massachusetts Bar Association