The Bar Report

Laura Kaster, chair of the New Jersey State Bar Association’s Dispute Resolution Section, and Peter Scarpato, the section’s chair-elect, recently spoke about news, trends and the future of the field.

On September 27, the section will hold a town hall meeting on court-ordered mediation at the New Jersey Law Center. Assignment Judge Linda Feinberg is scheduled to take part in the 6:30 p.m. event.

Q: What is the (brief) history of court-ordered mediation in New Jersey?

Laura Kaster: In 1992, a forward thinking Supreme Court in New Jersey established the complementary dispute resolution (CDR) program for civil cases. The Court established a program of presumptive mediation in all civil, probate, and estate-related disputes. A unique feature of the New Jersey system is the early issuance of an order to mediate and appointing a mediator from a roster established by the Court. The court order provides an opportunity for settlement when neither party may wish to introduce the idea of negotiating a settlement. Another major feature of this program is that two free hours of mediation services are provided before the mediators may charge for their time – one hour of preparation and one hour of in-person mediation. Parties may also select their own mediators, who are paid from the outset.

Q: Does this work?

LK: To the surprise of many, early resolution subject to targeted and limited disclosures for the mediation under the management of the mediator is often highly successful. When it is successful, early dispute resolution can mean an enormous saving to the parties and the court. The savings is achieved for the court by eliminating the need for further administration and hearings, and for the parties because discovery is the most costly component of all cases. While the vast majority of cases do not go to trial in New Jersey’s courts or any others (98 percent are resolved before trial), when settlement happens on the courthouse steps much of the costs have already been spent.

Q: Does this program play a role for all attorneys or just those in the dispute resolution practice?

LK: It basically applies to all civil cases (except tort cases), so virtually all litigators and litigants in New Jersey with civil matters feel the impact.

Q: What is happening now with that program and what does the section want to see happen?

LK: In January 2011, The CDR Committee of the Supreme Court reported that the labor-intensive administration of the program needed to be revisited given the budgetary strains on the system and also expressed concerns with the training of some of mediators, particularly in case management. The program is being extended for one year and an evaluation of its success is anticipated at the end of the year.

Peter Scarpato: During this year, a top priority is to address deficiencies identified by court personnel, lawyers and their clients who have used the system. The primary complaints are that court administrative personnel are overwhelmed with questions and additional work from the mediators, and that many mediators have insufficient experience to make the program worthwhile.

LK: We want to assure the program it survives and thrives, meeting the needs of litigators, the courts, and the parties by assisting the courts in case management and assisting roster mediators with additional resources. We also hope to help develop training standards, and to examine successful programs in other states.

Q: What are the other major trends in the dispute resolution field?

 PS: More and more companies and government offices, both domestically and internationally, are choosing various forms of alternative dispute resolution (ADR), including negotiation, mediation, arbitration, early neutral evaluation, collaborative law, and ombudsman programs to resolve disputes.  In New Jersey, companies are writing ADR clauses into contracts with business partners, opting for arbitration with pre-selected service providers to ensure the prompt, effective resolution of disputes. Some of those clauses require the parties to negotiate and mediate their differences before initiating arbitration, increasing the possibility of a settlement that protects the parties' relationship and pocketbooks. Meanwhile, large corporations and branches of the armed services are installing ombudsman services, providing a neutral, fair mechanism for employees and service personnel to air and address their grievances before litigation. Lawyers are also increasingly recommending that clients try early neutral evaluation, essentially hiring a trusted, experienced neutral to hear both sides' arguments and render an opinion about the likely outcome at hearing or trial.

Q: What role does collaborative law play in the future of the field?

PS: New Jersey and other states have experienced an increase in people using collaborative law, an ADR method that removes the dispute from court. In these situations, clients hire separate, specially trained attorneys solely responsible to help them settle the dispute. If the collaboration fails, the collaborative law process terminates and both attorneys are disqualified from the case.

Q: What is your prognosis?

PS: The overall prognosis for ADR, both here and nationwide, is promising. The current trend toward early intervention using many ADR techniques has set the stage for continued support and growth of New Jersey’s presumptive mediation program, a system that educates lawyers and clients in the benefits of early, interest-based resolutions.

LK: All over the country, parties and litigators have expressed high levels of satisfaction with the process of mediation and other forms of ADR as part of a multi-door courtroom. This high level of satisfaction is an independent and important reason to continue to support and improve New Jersey's system, to increase the knowledge of all attorneys about ADR alternatives, and to improve the knowledge of the legal community and clients about ADR resources. Corporate, trust and estate, family, health care, and other lawyers who need to anticipate and resolve their clients' problems (which is all lawyers) should be thinking about building ADR into their documents and their practice, and, they should join the Dispute Resolution Section to help improve New Jersey's resources.