Effective July 1, 1992, Marin County Superior Court adopted Marin County Superior Court Rule 5 (hereinafter “Rule 5”) to implement the Trial Court Delay Reduction Act of 1990 (hereinafter “Fast Track”) (Gov. Code sec. 68600, et seq.). Rule 5 establishes a comprehensive case management system similar to those found in other counties now that Fast Track requirements apply throughout the state. In one respect, though, Rule 5 represents a significant development which is of major interest to judges, attorneys, court administrators, Alternative Dispute Resolution (hereinafter “ADR”)providers, litigants, and particularly the general public. This article will examine the main features of the ADR program implemented by Rule 5, briefly sketch the evolution of the program, offer suggestions for implementing similar programs, and conclude with a preview of anticipated developments. Rule 5 addresses many other matters of substance and procedure besides ADR. This article concerns only Rule 5 as it pertains to ADR.

Background

The Need for ADR – Our Crowed Courts

Nearly 56,000 civil lawsuits are filed in California Superior Courts every month. 1 This means a civil suit is filed every minute, twenty-four hours a day. This figure, of course, does not include the thousands of criminal cases which are entitled to preference. An additional 85,000 civil cases are filed each month in California Municipal and Justice Courts. This creates tremendous pressure on the courts, making the system inefficient, expensive, and highly stressful. Court overcrowding creates administrative burdens which affect not only the parties but the taxpayer as well. Legal expenses are high enough but when parties must prepare for the same trial two or three times while waiting for a courtroom, those costs are exorbitant. In that regard, Massachusetts Chief Justice Walter McLaughlin stated: “The (legal) fees are outrageous. With the costs of litigation these days, I think clients would be better off if they just met in the halls and threw dice. Certainly it would be cheaper.” 2

Our current system of jurisprudence replaced the barbaric tradition of trial by ordeal. 3 But now, according to former Chief Justice Warren Burger, “Our system is too costly, too painful, too destructive for a truly civilized people…trial by adversarial contest must in time go the way of the ancient trial by battle and blood.” 4

Although most (90-95%) cases do settle, they do so on the courthouse steps. While settlements on the eve of trial are common, such resolutions come only after a great deal of time, money, and resources have already been expended.5 Such expenditures, as well as the heightened adversarial nature of litigation, can be a disincentive to settlement. Marin County, like most courts has long sought a method to bring the courthouse steps to the parties sooner — in time to be of real benefit.

Against this background, the encouragement of then State Bar President, John Seitman 6, and the then pending implementation of “Fast Track” scheduled for July 1, 1992, Marin County 7 charted a path to make our judicial system more civilized. By adopting Rule 5 Marin County Superior Court provides for early court intervention to encourage the use of ADR. Although other jurisdictions 8 have implemented court-annexed ADR programs, according to Sheila Purcell, California State Bar ADR Program Coordinator, Marin’s project is significant because of its uniform and early application.

Advantages of ADR

Although there are numerous advantages which encouraged the court to implement Rule 5, court overcrowding and cost were of primary concern. Approximately 2,700 civil cases are filed per year in Marin County. This requires each of its three civil judges to preside over 900 cases per year. The use of ADR should relieve overburdened court calendars while saving the county and litigants a good deal of time and money. The cost to the County of Marin is approximately $2,000 a day per courtroom, according to Marin County Court Administrator, Howard Hanson. The use of ADR could allow the county to reallocate those resources, while the cost of litigation to the litigants themselves will be significantly reduced. Not only can cases be scheduled more quickly for ADR but they can be resolved in a small fraction of the time required for traditional litigation.

Besides being a fast, economical, efficient, and effective manner to resolve civil cases, ADR processes themselves receive great praise and appreciation from the litigants. 9 Most ADR participants report satisfaction with the process which is contrary to the common reaction to litigation.10 That ADR can be undertaken at the parties’ convenience, remains private and confidential, and can preserve rather than destroy significant relationships are among the reasons litigants favor ADR.

Overview of Rule 5

The Initial Notices

The program begins upon the filing of all civil complaints subject to Fast Track guidelines. Also included are cases involving unlawful detainers, writs, and assets forfeiture. When the complaint is filed, the plaintiff receives two notices, a questionnaire, and a stipulation form (see Addendum A, B, C & D respectively). The plaintiff is required to serve each defendant with copies of these four documents at the time the complaint is served. In this way, all parties to the litigation are informed of the court’s policy and procedures regarding ADR.

The notice entitled “Notice to Plaintiffs” (see Addendum A) informs the parties:

“Examples of alternative dispute resolution (ADR) programs which are offered in Marin County include:

Binding and non-binding arbitration; mediation; neutral case evaluation; and the use of a Special Master.

It is important that you review these programs with your client. It will increase the possibility of your client’s case being resolved at an early, and less expensive, stage of the proceedings. All judges in the civil trial delay reduction program are supportive of the use of alternative dispute resolution programs and are available to meet with you and the other parties prior to your Status Conference to assist in selecting the most appropriate resolution mechanism for your case.”

Another notice — “Notice of First Status/ADR Assessment Conference” (see Addendum B) — informs the parties of the individual judge assigned to the case and the date for the initial status conference. This conference occurs 140 days after the date of filing. This notice contains the following admonition:

“You must be familiar with the case and be fully prepared to participate effectively in the Status/ADR Conference and to discuss the suitability of the case for binding or non-binding arbitration, mediation, neutral case evaluation or the use of a Special Master.”

The third court document given to the parties is the “Status Conference Questionnaire,” (see Addendum C) to be completed, served and filed prior to the status conference. The questionnaire is intended to elicit information pertinent to the management of the case in litigation and to provide the judges with information to assist their evaluation of the case for ADR. In situations where the parties have agreed to an ADR process prior to the initial status conference, it serves as a vehicle for notifying the court of their decision.

The fourth document, “Alternative Dispute Resolution Stipulation” form (see Addendum D), is to be signed by the parties and their counsel and filed with the court, confirming their agreement to proceed with ADR and identifying the ADR process chosen.

The Status/ADR Assessment Conference

The first status/ADR assessment conference is governed by Rule 5.9. As suggested by the composite name chosen to describe the conference, the rule expressly includes consideration of ADR as a formal component of the status conference:

“The Court shall examine and consider alternative dispute resolution programs or procedures available to the parties, including mediation, neutral case evaluation, and arbitration.”

Rule 5.9(a)(4)(ii)

Thus, unless the parties have already selected an ADR process, the ADR assessment component of the conference will include a mandatory discussion, led by the court, of the benefits of ADR. Significantly, the rule requires that the parties (including third party payors) along with their attorneys attend the conference so that they will have the benefit of hearing and considering the choices available to them. To the extent that the attorneys have not already familiarized themselves with the relevant ADR processes, they will have to do so in order to advise the client regarding ADR in the context of his or her case. The court may issue such orders as may be appropriate to facilitate the ADR process, but the rule does not adopt a system of mandatory ADR 11 – although it is mandatory that the parties consider and discuss ADR, its usage is voluntary.

The parties are free to choose the ADR process which they believe most suitable to the needs of their case. Moreover, they are free to select any ADR provider on whom they agree. The parties are not limited in their choice to a roster of court-approved ADR providers. To assist the parties in making their selection, the county clerk, with the assistance of the ADR Section of the Marin County Bar Association, maintains three separate lists: mediators; arbitrators; and neutral evaluators. These lists are open to any ADR provider who applies — attorney or non-attorney — and are designed to provide relevant information concerning the experience, training and qualifications of each provider and the fees they charge to the parties. Each ADR provider submits a completed “ADR Provider Information Sheet,” (see Addendum E) which may be supplemented with certain additional materials the individual provider wishes to include. The lists are provided as a convenience to litigants. The parties are reminded that under current California law, there is no certification or licensing requirement which must be satisfied as a condition to act as an ADR provider. They are also informed that the fact that an individual’s name appears on the list does not signify that he or she has been certified, licensed or is otherwise approved by the court. 12

According to Judge Beverly Savitt, the presiding judge at the time Rule 5 was adopted, judges have to work a little harder under Rule 5 since Assessment Conferences are conducted for each case. As to cases which do not settle as a result of an ADR referral after the first status conference, the assigned judge will aggressively manage the case to ensure that fast track disposition goals are met. However, Judge Savitt feels this is certainly a worthwhile investment of time based on the results that are attainable. Since early disposition through the use of ADR is a key element of Rule 5, practice under Rule 5 will require early case preparation and evaluation, a practical knowledge of ADR processes, and effective communication with the client regarding case resolution opportunities.

Critique of Program

Judicial Perspective

Although the program has been in effect for only six months, the Marin County Superior Court Judges are quite pleased with the results thus far. Judge Richard Breiner indicates not only that cases are settling as a result of ADR, that they are settling much earlier than usual. He also has noted a positive change in attitude among attorneys with respect to ADR. Judge Gary Thomas was gratified to note that attorneys have come to the Assessment Conference not only well aware of ADR but having given it a considerable degree of thought and reflection. All the civil judges felt that, in general, the parties have been prepared to have a meaningful discussion about the use of ADR.

Perhaps most encouraging is the success experienced by Judge Savitt in the first six months of the program. She reports that of the 700 cases assigned to her, approximately 25% have settled. More to the point not a single case has had to be tried during that initial period since they were all disposed of at some point. 13

While Judge Savitt feels that the assessment conference was a significant factor leading to settlement, in her opinion “It’s the whole program that is successful.” She feels that it is the manner in which the program, taken as a whole, operates that resolves cases.

Suggestions for Revisions

It is strongly recommended that the ADR Assessment Conference and the Fast Track Status Conference not be scheduled at the same time. This revision would improve the program in several ways. First, it would allow the court and parties to focus all their attention solely on the issue of early disposition through the use of ADR. The presence of all the decision makers allows the discussion at the Assessment Conference to be even more productive. Designing the appropriate ADR proceedings or series of proceedings requires the creativity and thought that could be fostered at a separate conference. Second, a separate conference would provide greater incentive for litigants to initiate ADR. In some cases, the parties may be undecided or ambivalent about the utilization of ADR. In these situations, time and cost savings of being relieved from a court appearance coupled with a high probability of resolving the dispute could provide the motivation to initiate ADR. Finally, a separate Assessment Conference could be held earlier in the proceedings to precede the first status conference.

ADR awareness and usage could be significantly increased if the attorneys for the parties were required to file an ADR Certificate with their first filing(complaint or responsive pleading). Such a certificate, signed by the parties and their attorneys, would demonstrate that the client had been informed about ADR. 14 The Judicial Council Advisory Committee noted the lack of knowledge of ADR processes is a major factor limiting its use. This lack of knowledge was not limited to the parties but included attorneys and judges as well. 15 The certificate requirement might even encourage the parties to resolve the case through ADR without the necessity of a lawsuit. Moreover, as the Advisory Committee has pointed out, the signature of the client would also protect the attorney from unfounded claims that the client had not been advised concerning ADR.

Currently attorneys are required to have a certain number of hours of continuing education in selected subjects, including ethics and law practice management. Consideration should be given to adopting a similar requirement for education in ADR. By further broadening the awareness of ADR, such a requirement would increase the likelihood that ADR will be utilized.

The program could also be improved if Fast Track time guidelines were suspended while the parties were in good faith pursuing ADR. If the ADR process were unsuccessful and the case reinstated on the civil active list, it could be given precedence over cases that had not utilized ADR. This would reward parties that had unsuccessfully attempted ADR. It would also remove a possible impediment to the usage of ADR.

An individual well versed in ADR processes as well as the workings of the court system could be hired as an “ADR Coordinator.” This would also make the program more effective. The Coordinator would perform both administrative and substantive functions. Administratively, he or she would be responsible for the smooth operation of the court-annexed ADR program, from filing to resolution. This would include, among other responsibilities, monitoring the statistical evaluation of the program. The more critical substantive responsibility would be to assist the judges in evaluating cases to determine the most appropriate ADR processes and then work closely with the parties to urge them to use the appropriate ADR process. The coordinator would have the time and expertise to assess each case and to design the best ADR approach given the nature of dispute and the issues involved.

An evaluation form has been developed (See Addendum F) to collect information which will be helpful in evaluating the program. This form will give ADR participants an opportunity to comment on their experience. In addition to serving other purposes, the form is also designed to assist in identifying the factors which render a case suitable for mediation. The Marin ADR Section expects to release a report covering the first year of the program in the spring of 1994. This report should suggest other ways in which the program can be strengthened.

Suggestions for Implementation

The Genesis of the Rule 5 ADR Program

The idea of integrating ADR within the judicial system is not a new idea. For example, mediation has long been used in resolving labor-management disputes. In the context of family law, mandatory mediation is required for child custody disputes. Individual courts have also implemented settlement panels, neutral evaluation panels and other mechanisms to resolve cases before trial. Moreover, other jurisdictions 16 have experimented with various types of court-annexed ADR. The Marin program thus derives in part from these and other precedents.

The idea of proposing a court-annexed ADR program in the Marin County Superior Court was first advanced by San Anselmo attorney-mediator, Richard Gould. The development of a pilot program to establish an early dispute resolution program was the initial project of the ADR Section of the Marin County Bar Association (MCBA), organized by Gould in 1989. Using other court-sponsored ADR programs as models, 17 the founding members of the Section developed and then refined the proposed program. After the essential features of the program were agreed upon, a formal, written proposal for a pilot program was submitted to the court. As originally proposed, the only ADR process to be utilized was mediation. Moreover, only certain categories of civil cases were to be included. Case selection was also determined in reference to a threshold amount in controversy. This initial pilot program was formulated prior to the imposition of Fast Track guidelines to Marin County.

Following the initial presentation to the superior court judges, a series of discussions ensued in which representatives of the ADR Section, including Gould, Teresa Carey, and the authors, responded to the questions and concerns of the judges, particularly those regarding anticipated burdens for the court and litigants. After the expanded Fast Track legislation was adopted, the court asked that the ADR Section modify the program so that it could be integrated into the case management system to be implemented July 1, 1992. After additional refinements, the pilot program was unanimously approved by the Marin County Bar Association, formally submitted to the court for adoption, and approved by the court in the spring of 1992.

In the form finally adopted, the program retains its original defining characteristic as a form of uniform, early dispute resolution. It embraces neutral case evaluation and arbitration as additional forms of ADR, as well as mediation. Moreover, with the exception of a limited number of cases, the program extends to all types of civil cases and is no longer limited to the categories of cases initially proposed.

Enlisting the support of the bench and bar was crucial to the success of the section’s efforts. The bench and bar were enthusiastic supporters of an ADR program. Each raised legitimate concerns which were addressed in the course of the dialogue from which the contours of the final program were defined. Coordinating and working with each comprised an essential part of the process.

Hindsight: Suggestions for implementing a similar ADR Program

It is the authors’ view that at this juncture, the design and implementation of court-annexed ADR programs is best done at the county level. There are at least three reasons for this. First, as the Consultants to the Judicial Council Advisory Committee on Dispute Resolution indicated “dispute resolution programs are best designed for local conditions, including the nature of disputes and availability of dispute resolution providers in the community”. 18 Second, it is appropriate to do so on the local level so that we can have the benefit of various programs for experimental purposes. Finally, it is simply easier to initiate at the local level unencumbered by the greater complexities associated with state wide implementation.

From the perspective of the Marin County experience the essential ingredients for the implementation of an ambitious ADR Program is an informed and progressive judiciary and a supportive and energetic Bar Association. The judiciary must be well informed about the various ADR processes and their significant advantages. Marin was fortunate to have a judiciary that possessed such knowledge. Judge Savitt stresses the need to educate judges to familiarize them with the mediation process. She felt that it is important that they actually see a demonstration so that they can understand how and why it is so effective. In seeing a demonstration judges would have a personal understanding of what has been referred to as the “logic behind the magic of mediation.” 19

However, if a judiciary is unfamiliar or skeptical concerning ADR it will be difficult to institute, if not execute, such a program. Regarding education of judges, a recent report concerning standards for court annexed mediation programs observed: “Education of court administrators and judges should focus on the differences between mediation and adjudication, the participatory nature of mediation and the possibility of creative solutions that deal with future relationships. This information can help to ensure that they will be better advocates and wiser planners of mediation programs, better able to select cases appropriate for mediation and more expert at explaining mediation to parties and their attorneys.” 20

The general membership of the Bar must be aware of the benefits to their clients and society in general and understand that it is not a threat to their own financial interests. It is important to enlist the cooperation and support of the Court Administrator. Since some of the initial burdens of an ADR program will fall on the administrator, it is important that he or she understand the long term benefits of such a program. Marin had the advantage of working with an enthusiastic Court Administer. Howard Hanson advised that “it is important to involve the local Bar, administration and judiciary as soon as possible.” He also recommends that other jurisdictions “not try to reinvent the wheel, but rather utilize what has been effective in other jurisdictions.”

The bar, judiciary, and court administrators must work closely together to identify and accommodate the particular needs and concerns of the jurisdiction in implementing the plan.

Although there are numerous significant reasons for initiating a court annexed ADR program, the considerations of time and money will be the most persuasive. 21 In that regard, it is recommended that ADR be introduced at the earliest possible juncture in the proceedings. ADR is most effective when introduced at an early stage before the costs and adversarial nature of litigation become significant. 22

Finally, it is also recommended that regardless of the ADR approach taken, the program be well documented statistically so that other jurisdictions may benefit from the experience. (See Addendum F)

Future Developments

As has been true throughout the evolution of Rule 5’s ADR program, it is subject to ongoing review and revision. Actual experience will be the best guide for determining what improvements can be made to further the program’s objectives. Marin’s ADR Section will continue its active role in assisting the court in the refinement and implementation of the program. We will continue to study the structure and procedures of the assessment conference to determine the best approaches for encouraging the consideration and use of ADR processes. Finally, we will monitor initiatives in the federal courts at both the appellate and district court levels to implement ADR programs. In this regard, the mediation program under consideration by the Ninth Circuit is of particular interest.

As Marin’s program expands the awareness and usage of ADR, it will bring into larger focus numerous issues that are already the subject of discussion in the mediation community. These include certification, immunity, and confidentiality. An effort has been initiated to expand the statutory immunity for mediators to encourage the use of mediation and to minimize the exposure to liability which might threaten the integrity of the process. The need to preserve confidentiality, which is essential to the mediation process, has been brought into focus by legitimate concerns over secret settlements in cases whose implications for the public at large transcend the private interests of the parties. Probably the most extensive discussion on this point occurred in the course of the debate over the passage of S.B. 711, a state bill that would have required court approval of settlements in certain types of cases.

Earlier this year a bill (A.B. 3011) which would have implemented a statewide civil ADR program similar to Rule 5 was introduced in the legislature but was later withdrawn. Interest in such legislation continues, and the State Bar, the Judicial Council, and bar organizations are considering various proposals which could form the basis for a renewed legislative initiative. We hope that the experience with the ADR component of Rule 5 will prove instructive for that process. Again, we believe that a period of experimentation at the local level with a variety of ADR approaches will prove most beneficial for any future legislation in this area.

Footnotes

1. Judicial Council of California, 1992 Annual Report, p.49.

2 Walter McLaughlin, Chief Justice, Supreme Court of Massachusetts

3. The Common Law developed in England with the growth of centralized power after the Norman Conquest in 1066. This replaced the trial by ordeal and battle which were based on a belief in intervention of the deity to reveal the truth. Perhaps no more unrealistic than our reliance on pre-trial discovery to serve the same function. In ordeal, the person accused of wrongdoing had to plunge his arm into a pot of boiling water, carry a red hot coal, or perform some similar act. If his wounds healed within a certain time, that proved his innocence. Trial by battle decided issues by physical strength, either in the person of the litigant or that of a champion hired by him. The man who prevailed in the fight prevailed at law. The parallels to current “discovery wars” are obvious. The Encyclopedia Americana, International Edition, Vol. 7, p. 393, Vol. 21, p. 33.

4. Former Chief Justice Warren Burger, 1984 State of the Judiciary Address

5. John M. Seitman, Inaugural Address, State Bar of California, September 15, 1991, p.4.

6. Ibid., p.5.

7. Marin County is located just north of San Francisco with a population of 230,000 as of 1990. Marin Superior Court has three Judges hearing civil cases.

8. The more significant of these are Florida, Massachusetts, Oregon, and Texas. See, “Use of ADR in California Courts, Findings and Proposals, Report to Judicial Council of California Advisory Committee on Dispute Resolution, prepared by Robert Barrett, J. Folberg, and Joshua Rosenberg. Also noteworthy are county programs in Los Angeles, Sacramento, and San Diego. See also, State Bar of California, Office of Research, overview of Superior Court ADR programs in participating counties, prepared by Heather Anderson, November 6, 1992.

9. Tyler, Tom R. “The Psychology of Disputant Concerns in Mediation,” Negotiation Journal 367-374 (October 1987)

10. “As a litigant, I should dread a lawsuit beyond anything short of sickness and death.” Learned Hand.

11. Judicial arbitration, of course, mandates arbitration of cases when the damages do not exceed $50,000.

12. Marin County Superior Court, “Notice Regarding ADR Provider List.”

13. Although no cases were tried by Judge Savitt during that period she did hear three short cause matters.

14. AB 3011 proposed such certification; see also General Principles Concerning Alternative Dispute Resolution Recommended by Advisory Committee on Alternative Dispute Resolution; February 26, 1992, p.4, #7.

15. “Standards for Court-Connected Mediation Programs,” Center for Dispute Settlement, The Institute of Judicial Administration, Washington, D.C.; February 24, 1992, Information for Judges, court personnel and users.

16. Massachusetts, Texas, Florida, Washington D.C., and Los Angeles

17. Key among these was a pilot mediation program initiated by the Los Angeles County Bar Association.

18. General Principles Concerning Alternative Dispute Resolution Recommended by Advisory Committee on Alternative Dispute Resolution; February 26, 1992, p.3., #3

19. “The Logic Behind The Magic of Mediation”; Albie M. Davis, Negotiation Journal, January 1989, p.17

20. “Standards for Court-Connected Mediation Program”; Center for Dispute Settlement; The Institute of Judicial Administration, Washington, D.C.; February 24, 1992.

21. The National Institute for Dispute Resolution reports that the most important factors influencing the use of ADR are costs and time. NIDR Quantitative Benchmark Survey, June 22, 1992.

22. General Principles Concerning Alternative Dispute Resolution Recommended by Advisory Committee on Alternative Dispute Resolution; February 26, 1992, p.3., #2

Steven J. Rosenberg is a Mill Valley attorney whose practice is exclusively devoted to mediation. He became interested in mediation as a result of his frustration with our present justice system. He came to realize that by utilizing some of his legal and interpersonal skills as a mediator, he could better serve the ends of justice. Samuel F. Barnum is an attorney/mediator with offices in San Rafael. He also works as an arbitrator and neutral evaluator.

A. Notice to Plaintiff

B. Notice of 1st Status Conference

C. Status Conference Questionnaire

D. ADR Stipulation

E. ADR Provider Form

F. Marin County Superior Court ADR Evaluation Form