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ADR in the Trial Court – December 2012

Court-Connected ADR is governed by the Uniform Rules on Dispute Resolution, Supreme Judicial Court Rule 1:18, which took effect in 1999, and are designed to offer litigants more options in resolving disputes. There are seven ADR processes defined in the Uniform Rules: arbitration,  conciliation, case evaluation, dispute intervention, mediation, mini trial and summary jury trial. The  best known and most used ADR process is mediation.

The Trial Court Standing Committee on Dispute Resolution advises the Chief Justice for Administration and Management (CJAM) of the Trial Court with respect to the implementation and oversight of court-connected dispute resolution services in the Trial Court.

Each Trial Court Department has designated a person or a committee to be responsible for the administration of ADR services within that department. ln addition, each division in every Trial Court Department has designated someone to be the local dispute resolution coordinator to maintain information about ADR and assist the public in using those services.

There are 54 individual court-approved programs providing alternative dispute resolution services in the seven Trial Court Departments,. Pursuant to Rule 4(a) of the Uniform Rules, programs are approved by the Chief Justice of each of the Trial Court Departments, and most are approved in more  than one department. Overall these 54 programs account for 99 program approvals across the seven departments.

Of the 54 programs, 38 operate as primarily free or non-fee~based programs in the Boston Municipal, District and Juvenile Court Departments. Many of these programs are also approved in the Land Court, Superior Court and Probate and Family Court Departments and charge fees for services in those Departments. The remaining 16 programs operate as fee-based programs in the Land Court, Superior Court and Probate and Family Court Departments. Services provided by in-house providers and Bar Associations-sponsored programs are free to litigants.

The Boston Municipal Court Department has 7 approved mediation programs serving various Divisions. There is an in-house mediation program for criminal and civil cases, a Boston Bar Association (B.B.A.) sponsored program for civil cases in the Central Division, and three non profit mediation programs handling mostly small claims and summary process cases. Of the seven mediation programs, two are university based. Mediation services are available in all the Divisions free of cost to the parties. In addition, a Pretrial Conference Program operates in the Central Division for civil cases and is administered by the B.B.A. and Court staff.

Cases. 573 cases were referred to mediation from all divisions in FY10. (342 were small claims; 110 criminal; 79 summary process; 25 civil; and 17 other). In FY 10, the on staff mediator expanded mediation services to all court divisions.

Administrative Structure. The Boston Municipal Court Department has an Administrator of Mediation Services who supports ADR providers and mediates cases. The Boston Municipal Court Department also has am Administrative Justice position that is responsible for implementation and oversight of dispute resolution services. In addition, a court committee comprising of staff and judges have recently begun meeting to discuss ADR issues and initiatives.

Early Intervention. The Boston Municipal Court Department has a Pre T rial Case Conferencing Program in the Central Division that screens cases for referral to mediation. The Boston Municipal Court is satisfied that its Standing Order 1.04 adequately addresses the availability of early intervention.

The District Court Department has approved 24 programs providing free mediation services in small claims, summary process and minor criminal cases in 56 of the 62 Court divisions. Cases referred to these programs are mediated by volunteer mediators. Of the 24 programs, two are university-based mediation programs and two are conciliation programs.

Cases. 5,836 cases  – 3,105 small claims (or small claim appeals), 1,432 summary process and assorted civil and criminal. A copy of the District Court’s FY 10 Approved Program statistics is attached. A pilot mediation project was implemented in the Spring of 2011 in Quincy to provide mediation services to harassment prevention cases. No programs have stopped providing services but some have reduced the amount of time in court since legislative funding was cut.

Administrative Structure. The Deputy Court Administrator is the Department ADR Coordinator.

Early Intervention. No early intervention events. In this regard, the Standing Committee has requested the District Court consider revisions to its Standing Order 1.08III(b)(3).

The Housing Court Department has approved 2 programs, an in house ADR program (office of the Housing Specialists) and an outside program that provides specific services. The Housing Specialists are approved in all five count divisions to provide free mediation and dispute intervention services; they resolve hundreds of summary process and landlord/ tenants disputes weekly. The other program has been approved as an outside provider for cases requiring subject matter expertise in the areas of lead paint, mold and asbestos, zoning litigation and environmental litigation.

Cases. In fiscal year 2010, the Housing Court referred 19,697 civil and summary process cases to the Housing Specialist Department.

Administrative Structure. Each division of the Housing Court has an ADR coordinator on staff.

Early Intervention. Litigants are referred to the Housing Specialist at the time all parties must present themselves in court at the earliest stage of the litigation.

The Juvenile Court Department has 19 approved programs offering mediation of Permanency, CHINS and Parent-Child cases. Permanency Mediation is an alternative to a contested proceeding seeking to terminate parental nights and is offered statewide in both the Juvenile and Probate and Family Court Departments. There is one bar-based mediation program for care and protection cases.

Cases. In FY10, 35 cases were referred to approved alternative dispute- mediation programs statewide in the Juvenile Court Department. Of the 35 referrals, 29 were in care and protection cases, 4 were in delinquency eases and 2 were in guardianship cases. Massachusetts Families for Kids (MFFK), which provided permanency mediation services in care and protection cases to the Juvenile Court under a contract funded by the Trial Court reported having 196 referrals. The funding for MFFK expired at the end of FY10. Other than that program, the Juvenile Court did not lose any ADR services in FY10.

Administrative Structure. The Administrative Attorney in the Administrative  Office of the Juvenile Court is the department ADR coordinator for the Juvenile Court.

Early Intervention. No early intervention events. However, the Administrative  of the Juvenile Court has identified CHINS and G.L. c. 25813 matters as case types that may benefit from early intervention.

The Land Court Department has 5 approved programs providing ADR Services. Additionally, the Land Court has an active case conferencing program which promotes ADR to litigants.

Cases: In at majority of cases, the parties go directly from a court event straight to mediation without a referral from the court. In FY 10, 29 cases did get written ADR  referral from the court to programs for initial screening. Each of the five court-connected ADR providers contracts with the court to do a free initial screening upon referral.

Administrative Structure. The ADR Coordinator for the Land Court Department is Sessions Clerk Jennifer Masello. Regular discussion of ADR – The programs that are in place work well for the Land Court. ADR needs are discussed among the judges and with the Bar to reaffirm that needs are being met. During the most recent period when programs were vetted, the court was particularly interested in and did include a program that offered a sliding scale payment system that would be suitable for the growing number of pro se litigants.

Early Intervention. The Land Court has a Case Management Conference (CMC) held within 90 days of the case filing. In advance of the CMC event, the Land Court requires a joint CMC Memo be filed with the inclusion of each party’s willingness to participate in ADR. In FY10, 148 cases included docket entries indicating that ADR was formally discussed during the CMC event. The Land Court Standing Order 1-04F(i)II) and 1.04F(ii) addresses early .intervention and requires no revisions.

The Probate and Family Court Department has 24 approved programs offering ADR services. This includes  dispute intervention services administered by the Office of the Commissioner of Probation and conducted by probation officers in each of the 14 court divisions. This department also approves programs to provide permanency mediation. There are six bar-­based Conciliation programs.

Cases. In FY10, 37,109 cases were referred to dispute intervention, 741 cases to conciliation and 93 cases to mediation. The contract for permanency mediation services in the Juvenile and Probate and Family Court Departments expired at the end of FY 2010, and no new RFP and/or contract was undertaken due to the fiscal crisis.

Administrative Structure. Supervision of the department’s ADR activities conducted pursuant to S.J.C. Rule 1:18 is included among the responsibilities of the Manager of Administrative Services in the Probate  Family Court Administrative Office. Meetings of Probate and Family Local Dispute Resolution Coordinators (one individual appointed by the First Justice in each division) are    held quarterly. Best practices and concerns are considered and discussed; updates concerning trial court ADR (such as the approval application process and Standing Committee discussions) and news about any other developments (e. g., ADR training announcements) is shared. Recent presentations, by representatives of approved programs and other guest speakers have included topics such as elder mediation, mediation  divorces and collaborative law.

Early Intervention. On-site screening and mediation services are available in Hampshire and Essex (limited) and are provided by approved (pursuant to S.J.C. Rule 1:18) ADR programs. Our Time Standards (Standing Order 1-06 “Case Management and Time Standards for Case Files in the Probate and Family Court”) continue to highlight that Case Management Conferences may “explore  the possibility of settlement including, but not limited to exploring to use of Alternative Dispute Resolution (ADR) processes.” Further, provision 5 ofthe Standing Order states: “When appropriate, cases may be referred to: Probation Officers for dispute intervention services in contested matters at any court event; or other approved providers of court connected dispute resolution services, as defined in S.J.C. Rule 1:18, Uniform Rules on Dispute Resolution.”

Standing Order  Special Procedures for Cases involving children (Hampshire) requires attorneys, parents and care givers in divorce, separate support, paternity, support/custody/visitation, modification, contempt, guardianship and termination of parental rights eases in the Hampshire Division to participate in a child-focused resolution process. The child-focused procedural model enhances parents’ understanding of the effects of hostile litigation on children, provides early opportunities for non-adversarial planning of all unresolved issues and establishes a problem-solving environment in which each parent, care giver and attorney is expected to be a problem solver.  Attendees at mandatory, introductory meetings are required to subsequently present at the  Pre-Trial Conference a summary of cooperative efforts taken in working toward a cooperative resolution of the unresolved issues.

In addition, early intervention events at court could include initial meeting with probation officers who could explain all ADR. processes and options as defined pursuant to S.J.C. Rule 1:18 and make referrals to (additional) approved ADR programs for further ADR services. Litigants are referred to probation at the time all parties first present themselves in court at the earliest stage of litigation.

The Superior Court has approved 14 programs offering ADR services and has an in­-house program which screens cases for use of ADR and mediates cases involving pro se litigants and in other cases at the request of counsel or by order of a judge. The Superior Court’s ADR staff consists of two attorneys who conduct mediations and are available to explain court-conducted mediation services to attorneys and parties. In addition, retired Superior Court Judge Thayer Fremont-Smith has volunteered his services to serve as mediator and discovery master, primarily in Suffolk County.  A Superior Court judge  interested in referring a case to retired judge Freemon-Smith must enter an order referring the case to him. All in-house mediations are provided at no cost to the parties.

Administrative Structure. While the Superior Court does not have an official ADR coordinator, Maria Pena, Associate Court Administrator/General Counsel works with the ADR Staff to continue the court’s efforts in providing ADR services. The Superior Court has an ADR committee that meets as issues arise, In addition, Maria Pena, and Chief Justice Barbara J. Rouse meet with in-house ADR staff and judges to discuss ADR services.

Early Intervention. As set forth in Superior Court Standing Order 1-88, judges discuss ADR at pretrial conferences. In addition, judges sitting in time standards sessions are encouraged to discuss alternative dispute resolution options with parties and have the discretion to recommend and/or order  free in-house mediation services.  conduct Rule 16 conferences early in each case in which case-specific deadlines for discovery and events are set, and also conduct status conferences more frequently, at least at the end of discovery, and in some ceses, at the end of earlier phases of discovery.