|
Report
of the Georgia Commission on Dispute Resolution
Long Range Planning Committee
March 5, 1998
Preamble
to Report of the Long Range Planning Committee
The Long Range Planning Committee of the Georgia Commission
on Dispute Resolution has undertaken to review the work of the Georgia
Commission on Dispute Resolution and the Georgia
Office of Dispute Resolution and create a plan for the work
of the Commission and the Office of Dispute Resolution as we enter
a new century. The Georgia Commission on Dispute Resolution has
the broad long range goal of assisting in the accomplishment of
the Georgia Constitution's mandate of
inexpensive, swift, and efficient resolution of disputes. The long
range plan seeks to suggest ways in which the Commission can continue
to realize that goal. In all its actions, the Commission recognizes
that it was created to serve the needs and interests of all the
people of Georgia, rather than those of any particular group.
The
Committee concludes that the Commission and the Office of Dispute
Resolution have made great strides toward creating an effective
statewide alternative dispute resolution program that will help
the public resolve disputes, reduce the costs of dispute resolution
and lessen the burden of an ever-increasing caseload upon the
judicial system. It is clear, however, that the work of the Commission
and the Office of Dispute Resolution will not be completed by
the year 2000. It is also clear that the Commission and Office
cannot accomplish this work alone but must work in collaboration
with other branches of state government, as well as other appropriate
public and private institutions.
The
Committee observes that the Commission's guiding philosophy has
been that a wide range of dispute resolution choices should be
available for all the courts and the litigants of Georgia. This
philosophy has been exemplified by provisions of the Supreme Court
ADR Rules and the filing fee surcharge legislation which are designed
to encourage, but not mandate, the use of ADR processes by courts.
Similarly, although courts may order parties to attend an ADR
session, the rules and the ethical standards developed by the
Commission make clear that the outcome is based on party choice
and that coercion is not appropriate. The Committee observes that
this philosophy has served the Commission well.
The
work of the Committee has involved retrospection as well as projection.
The Committee acknowledges that retrospection is an integral part
of planning. Acknowledging also that the work of the Commission
and the Office of Dispute Resolution should be viewed as organic
in nature, the Committee recommends that the Commission and the
Office of Dispute Resolution continue to maintain an attitude
of critical and constructive self-evaluation, and that they continue
to review their rules, policies and procedures in order to insure
their fairness and efficacy. Continuous review and evaluation
are crucial to protect the choice and flexibility that are hallmarks
of ADR while maintaining the quality assurance that is essential
to justice.
For
the future, the Committee concludes that it is important that
the Commission remain flexible and alert to opportunity. By its
very nature ADR involves flexibility and innovation. Because of
this, any effort to devise a rigid long range plan would contradict
the very spirit of ADR. The Committee has directed its efforts
toward suggestions which it feels at this time would result
in better service to the people and the courts. The Committee
recognizes that it cannot foresee the societal, professional,
or financial changes over the horizon. With this in mind, the
Committee recommends that the Commission review this plan at two
year intervals.
Recognizing
that the future remains uncertain and unpredictable, the Committee
believes that the Commission's work must be inspired by the hope
that a constructive approach to conflict will foster change toward
a less violent and more peaceful society. Further, the Committee
is convinced that true cultural change cannot occur unless we
change the way we teach our children about conflict. Positive
societal change cannot occur until society's youngest members
learn to view conflict as a challenge and an opportunity for greater
understanding of self and of others. This truth should inform
the work of the Commission in the courts, the schools, and in
other institutions where Georgia citizens deal with conflict.
This
plan contains a number of "Illustrative Options" which
illustrate the kinds of activities the Commission might consider
and ultimately undertake. This Committee in no way views these
as all-inclusive. In fact, the Committee suggests that the Commission
remain open to all new and better ways to solve the problems of
Georgia citizens. At the same time, the enumeration of an illustrative
option does not mean that the Commission is committed to its adoption.
I.
Long Range Goal: The primary responsibility of the Georgia Commission
on Dispute Resolution is to the courts and litigants of Georgia
and to society in general. A primary goal of the Commission is
to encourage the expanded availability and diversity of court-connected
ADR options through education, technical assistance, and training.
Background:
Although ADR services are available at some level in 79 counties
in Georgia,1 there are still areas
of the state in which ADR services are not available in any court.
The Commission and the Office of Dispute Resolution remain alert
to any opportunity to increase the use of ADR through technical
assistance, training, and education.
The
introduction of ADR services into the courts of a given county
has generally occurred through the superior court. In many areas
of the state, ADR services are available in some courts within
a given jurisdiction and not in others. This lack of uniform availability
may result from program constraints or because judges in certain
courts do not choose to refer cases. Throughout the state, juvenile
courts2 and magistrate courts3
are underserved. Service to these courts is a priority of the
Commission and the Office of Dispute Resolution. Technical assistance,
training, and education are crucial to this effort.
Courts
which began the development of ADR programs with mediation are
beginning to consider the use of other processes. Several existing
court programs which presently offer mediation services are planning
to offer early neutral evaluation or case evaluation and arbitration.
The Supreme Court rules require six hours of training for arbitration
and for case evaluation. This training, unlike that for mediation,
is not offered on a regular basis by private providers.
Objective
1: To reach out to those Georgia courts not using ADR processes.
Illustrative
Option: One opportunity which exists for outreach to magistrate
courts is a partnership between colleges and universities and
the magistrate courts in the counties where they are located.
The relationship between a college and a magistrate court would
provide a perfect opportunity for a clinical program in ADR
as an adjunct to an ADR curriculum or to a certificate program.
Objective
2: To reach out to those Georgia courts limited in their use of
ADR.
Objective
3: To encourage the use of a variety of ADR processes.
Illustrative Option: In May of 1997, because
of the growing demand for training for early neutral evaluation
or case evaluation, the Office of Dispute Resolution sponsored
such a training. To the extent its budget allows, the Office of
Dispute Resolution should continue to offer training in a variety
of ADR processes.
Objective
4: To encourage experimentation and creativity in the use of new
and innovative processes and concepts.
Illustrative
Option: Victim/offender mediation, with its emphasis upon
restorative justice and healing, is already used in some magistrate
courts and juvenile courts. The Ninth Judicial District ADR
program is experimenting with mediation of nonviolent felony
cases. A logical next step is to offer an advanced training
in victim/offender mediation and offer it to mediators willing
to work in the area of more serious felonies. Several district
attorneys and solicitors have expressed an interest in the use
of mediation to address the needs of victims more effectively.
Illustrative
Option: Several juvenile court judges have expressed an
interest in a process called family group conferencing as an
alternative to mediation. Family group conferencing is a facilitated
meeting between the offender, the victim, their families, and
support people. The facilitator encourages all participants
to discuss the impact of the offense upon their lives. The value
of the conference lies in its potential for constructive "shaming"
of the offender, who is faced with the consequences of his or
her actions, and in the healing that can occur for the victim
and, ultimately, for the offender, who is welcomed back into
his or her "community." The emphasis is upon restoring
the victim to his or her position prior to the offense rather
than upon punishment of the offender. Family group conferencing
began in New Zealand and Australia. It has been tried with remarkable
success in Pennsylvania. Ansley Barton and Jennifer Boyens,
along with several mediation program directors took training
in this process in the winter of 1998 with a goal of bringing
training to courts that wish to implement this alternative process.
Illustrative
Option: In Florida a pro se family mediation pilot has been
completed. Couples in an income bracket above the poverty line
but unable to afford a lawyer were targeted. One of the critical
aspects of the project was the availability of legal, financial,
and mental health services provided on a pro bono basis to participants.
With the assistance of these ancillary services, mediators were
able to help parties work out their own settlement agreements.
Illustrative
Option: Connecticut is now piloting and Virginia is working
toward piloting District Court Services Centers. The Connecticut
objectives described in a successful grant application to the
State Justice Institute by the Connecticut Judicial Branch are:
1) improvement of public confidence and trust in the court system;
2) increased public access to court information and services;
3) increased quality and quantity of information provided to
all court customers about court services; 4) the promotion of
better problem solving for litigants by linking self-represented
litigants with attorneys and state and community-based resources.
The
District Court Services Center concept involves an annex to
the courthouse which provides education and assistance in understanding
court processes and procedures, assistance in completing user-friendly
court forms, and assistance in obtaining referral to agencies
which can help individuals meet their related social, financial,
and other human service needs. The program also provides on-site
legal services and staff trained to evaluate problems for potential
diversion to an ADR process. In addition, the center will offer
a roster of attorneys willing to offer pro se litigants "unbundled
legal service," delivering a specific service or advice
but not necessarily representing the person in court. The Court
Services Center and the pro se family mediation model described
above provide opportunities to increase access to justice by
all citizens.
Recommendations:
1. That
the Office of Dispute Resolution attempt to reach courts which
do not use ADR at the present time through technical assistance
and training. The Office of Dispute Resolution, with the assistance
of directors of existing court programs, should create a technical
assistance manual providing specific guidance to courts which
seek to develop programs.
2. That
the Commission and the Office of Dispute Resolution make the development
of juvenile court mediation programs a priority. Training and
technical assistance for juvenile courts is a crucial part of
this outreach.
3. That
the Office of Dispute Resolution collaborate with the Council
of Juvenile Court Judges in defining and implementing appropriate
ADR services for juvenile courts. Collaboration with such entities
as the Juvenile Advocacy Division of the Georgia Indigent Defense
Council and the Governor's Children and Youth Coordinating Council,
for which the Office has promised to provide training, will also
enrich its juvenile court work.
4. That
the Office of Dispute Resolution remain alert to opportunities
to foster the establishment of ADR programs in magistrate courts
throughout the state. The opportunity to foster collaborative
partnerships between magistrate courts and the ADR programs on
campuses of Georgia colleges and universities should be pursued.
5. That
the Commission encourage the use of a variety of ADR processes
by addressing the training vacuum that exists at present with
respect to processes other than mediation.
6. That
the Commission and the Office of Dispute Resolution encourage
pilot programs which will test innovative processes and concepts.
To the extent that the Office of Dispute Resolution can introduce
new concepts through training, this should be done.
7. That
the Commission and the Office of Dispute Resolution encourage
the use of a variety of ADR processes through education of the
bench, the bar, and the citizens of Georgia.
II. Long Range Goal: In the future the Commission
will need to look beyond its immediate mandate in order to support
and encourage effective dispute resolution systems in other governmental
entities, the schools, and the private sector through education,
technical assistance, and training.
Background:
The
Commission has already engaged in significant collaborations with
three executive branch entities: the Board of Regents of the University
System of Georgia, the Board of Workers' Compensation, and the
Office of State Administrative Hearings. The Commission and the
Office of Dispute Resolution also enjoy a close relationship with
the Consortium on Negotiation and Conflict Resolution.
Objective
1: To reach out to other entities within Georgia's state government
to offer support and encouragement in developing dispute resolution
programs and systems.
Illustrative
Option: The Office of Dispute Resolution has recently been
in touch with the Georgia Human Relations Commission and the
Governor's Children and Youth Coordinating Council and hopes
to collaborate with those entities.
Illustrative
Option: The Office of Dispute Resolution in the summer of
1996 sent a questionnaire to all public schools in the state
inquiring about the use of peer mediation and the presence of
conflict resolution in the curriculum. The very heavy response
to that inquiry indicates that there is a great opportunity
for the Commission to actively support and encourage constructive
conflict resolution in grades K through 12. Truancy mediation
and mediation of school-related incidents in the juvenile court
setting already provide a nexus between court-connected ADR
and the schools.
Objective
2: To reach out to other states to collaborate with the courts
and with other governmental entities in the development of dispute
resolution systems.
Illustrative
Option: The Office of Dispute Resolution is part of the
Policy Leadership and Consensus Initiative, an organization
funded primarily by a grant from the William and Flora Hewlett
Foundation. The purpose of the organization is to help U.S.
states and Canadian provinces "provide and institutionalize
the use of consensus building and collaboration tools to issues
of public policy."
Illustrative
Option: The Office of Dispute Resolution has been approached
about participation in a study of program design with several
other states, including Ohio, Maine, and Hawaii.
Illustrative
Option: The Office of Dispute Resolution plans to host a
day of mutual sharing and technical assistance for southern
state offices of dispute resolution. This conference is planned
for April of 1998.
Recommendation:
1. That
the Commission and the Office of Dispute Resolution capitalize
on opportunities to collaborate with other entities within the
state and in other states. Appropriate collaboration will enrich
the work of the Commission and the Office and enhance the credibility
of their work. Colleagues in other states are an invaluable source
of knowledge and support. The experience of other states has informed
the work of the Commission and the Office from its inception.
Sharing of knowledge and support with others whose work is just
beginning is both a privilege and a valuable opportunity.
2. That
the Commission and the Office of Dispute Resolution, recognizing
that the hope of a better future lies with today's children, strive
to collaborate with other entities to insure that our children
learn to view conflict as a challenge and an opportunity for greater
understanding of self and others. (See Illustrative Option under
Objective 1 above.)
III.
Long Range Goal: The Commission must remain open to continuous
review of its own policies, procedures and rules. None of these
policies, procedures and rules is immutable, and the Commission
must continue to view its work as organic.
Background:
The Office of Dispute Resolution is engaged in a statistics project
that will allow the gathering of case information in a uniform
format from 25 of the 29 court ADR programs presently operating
in Georgia. The data collected will provide important quantitative
information about the use of ADR in Georgia courts. Statistics
presently gathered provide quantitative case data. This data,
however, will not furnish a measure of satisfaction with court-connected
ADR in Georgia. The Office of Dispute Resolution has worked to
develop a participant survey to capture this qualitative information.
There have been difficulties, however, in reconciling the need
for brevity with the development of a survey that would provide
truly useful information.
Objective
1: Reliable measures of participant satisfaction with process,
satisfaction with neutrals, and satisfaction with court programs
are necessary to provide information regarding quality control.
Illustrative
Option: An in depth survey of parties, lawyers and mediators
is being conducted in Maine and in Ohio. These studies will
yield invaluable information about participants' perceptions
of the ADR session, about mediator styles, about the usefulness
of a process in a particular type of case, about the importance
of substantive knowledge on the part of the mediator, about
the amount of discovery necessary to fully participate in an
ADR process, about savings of time and money due to participation
in an ADR process, and many other issues. Data collected thus
far in Ohio as a result of the in depth evaluation has yielded
surprising information that bears directly upon issues of training,
credentials for neutrals, mentoring, and continuing education.
For example, although the number of hours of training did not
seem to have great bearing on settlement rates of mediators,
the number of cases mediated did effect the mediator's settlement
rate.
Objective
2: The review of policies, procedures, and rules should extend
to the structure of the Commission and the Office of Dispute Resolution.
As part of the planning process, the Commission needs to make
provision for the time in the near future when the terms of all
original members of the Joint Commission on Alternative Dispute
Resolution, the predecessor of the present Commission, have ended.
The preservation of the "institutional memory" of the
Commission is an important task since that memory informs the
present and future work of the body. Because of the turnover of
Commission members, the present committee structure should be
revisited.
Recommendations:
1. That
the Commission and the Office of Dispute Resolution seek a grant
to conduct an in depth evaluation of participant satisfaction.
This evaluation should be undertaken with the help of expert consultants.
The methodology of the evaluation and the survey instruments should
be designed with the participation of all stakeholders. The duration
of the project should be sufficiently limited that participants,
including lawyers, parties, and neutrals, will accept a complex
survey instrument.
2. That
the evaluation study be designed to yield information relative
to training standards, qualifications of neutrals, and issues
of mentoring and continuing education.
3. That
the Commission use the results of the evaluation study to revisit
the issues described above and to make decisions informed by those
results.
4. That
the Commission consider asking the Supreme Court to change its
rules to add two additional Commission members so that every class
of court has a member on the Commission.
5. That
the Commission committee structure be revised to make committees
more relevant to the work that is currently occurring. For example,
a committee on evaluation should be appointed to oversee the evaluation
project.
6. That
the Commission review this Long Range Planning Report after the
passage of two years. At that time the Commission should determine:
(1) which objectives and recommendations have been accomplished;
(2) which objectives and recommendations should be altered or
amended; (3) which objectives and recommendations should be discarded;
(4) which new objectives and recommendations should be included
in a new report. The process of periodic review will result in
an organic plan that will inform the Commission where it is and
where it should go.
1. See Appendix A to this report for a description
of Georgia court-connected ADR programs.
2.
Resources play a crucial part in the disparity between juvenile
court and other courts. The amendments to the Georgia
Court-connected Alternative Dispute Resolution Act, effective
January 1, 1998, address the issue of resources by specifically
providing that juvenile court supervision fees collected pursuant
to OCGA ß 15-11-56.1 may be used for
mediation services pursuant to the Georgia Court-connected Alternative
Dispute Resolution Act. OCGA ß15-23-7(e). An amendment providing that a
juvenile court judge will be part of the Board of Trustees for
the administration of the ADR fund in each county establishing
such a fund is indicative of the intent that juvenile court be
included in the provision of ADR services. OCGA
ß 15-23-3(4).
3.
Magistrate courts have been underserved in many areas in Georgia
even though the filing fees imposed on magistrate court litigants
amount to a large percentage of the money collected in a given
county.
Back to the top
|
