Dispute resolution in the courts : a plan to promote access, choice, and integrity in court-connected dispute resolution

156 Pages·1996·3.7 MB·English

by  Massachusetts. Supreme Judicial Court/Trial Court Standing Committee on Dispute Resolution

COMMONWEALTH OF MASSACHUSETTS
DISPUTE
"Thejudicial branch should make available
RESOLUTION appropriate dispute resolution alternatives to the
traditional process ofadjudication at an early stage
ofthe litigation....Dispute resolution alternatives
THE COURTS
IN are essential to the basic mission ofthe courts.
Dispute resolution alternatives are appropriate for
parties to consider in all types ofdisputes in the
absence ofa statute or departmental policy to the
contrary. The availability ofdispute resolution
alternatives in the courts should not depend on the
financial resources ofthe parties...."
Proposed Amended Trial Court Policy
Statement on Dispute Resolution Alternatives
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. A PLAN TO PROMOTE
ACCESS, CHOICE, AND
INTEGRITY IN COURT-
RECEIVED.
CONNECTED DISPUTE
RESOLUTION
AUG 061996
DOCUMENTS
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REPORT OF THE SUPREME JUDICIAL
COURT/TRIAL COURT STANDING
COMMITTEE ON DISPUTE RESOLUTION
JUNE 18, 1996
Digitized by the Internet Archive
2014
in
https://archive.org/details/disputeresolutioOOmass
Supreme Judicial Court/Trial Court
Standing Committee on Dispute Resolution
Chair
Hon. Peter W. Agnes, Jr.
First Justice, Charlestown Division, District Court Department
Vice-Chair
Professor Frank E.A. Sander
Bussey Professor and Associate Dean, Harvard Law School
Members
Honorable William H. Abrashkin
First Justice, Hampden Division, Housing Court Department
Ms. Susanne R. Blatt, Esquire
Cosgrove, O'Connell & Blatt, Worcester
Ms. Melissa Brodrick
Executive Director, Massachusetts Association of Mediation Programs & Practitioners
Ms. Cynthia Brophy
Mediation Services Administrator, Boston Municipal Court Department
Honorable John C. Cratsley
Associate Justice, Superior Court Department
Mr. John T. Dalton, Jr., Esquire
Asst. Clerk-Magistrate, Quincy Division, District Court Department
Ms. Albie M. Davis
Director of Mediation, District Court Department
Ms. Peggy L. Gassman
Assistant Chief Probation Officer, Norfolk Division, Probate & Family Court Department
Ms. Kathy Grant
Face to Face Mediation Program, Office of the Attorney General
Mr. David A. Hoffman, Esquire
Hill & Barlow, Boston
Mr. Hector M. Jenkins
Housing Specialist, Boston Division, Housing Court Department
Ms. Fredie D. Kay, Esquire
Executive Director, Massachusetts Office of Dispute Resolution
Professor David E. Matz
Chair, University of Mass/Boston Graduate Program in Dispute Resolution
Honorable Anthony R. Nesi
Circuit Justice, Probate & Family Court Department
Ms. Ann O'Connor, Esquire
Director, Lawrence District Court Conciliation Program
Ms. Gail L. Periman, Esquire
Mediator, Hampshire County
Ms. Barbara E. Stedman, Esquire
Executive Director, Middlesex Multi-Door Courthouse
Ms. Jocefynne D. Welsh, Esquire
Administrative Attorney, Probate & Family Court Department
Honorable CatherineA. White
Associate Justice, Superior Court Department
Formore information, please contact the staff to the Standing Committee
Ms. Barbara Diamond, Esquire
Counsel for Policy Development, Supreme Judicial Court, (61 7) 557-1 1 56
Ms. Ann A. Meagher, Esquire
Acting General Counsel, Administrative Office of the Trial Court, [phone]
The Standing Committee wouldlike to thank consultants Elizabeth Neumeier, EsquireandMargaret
Shaw, Esquire for their valuableassistance.

STANDING COMMITTEE ON DISPUTE RESOLUTION
GUIDING PRINCIPLES
In developing a framework to support the growth of quality dispute resolution
services in the court system, the Standing Committee on Dispute Resolution has
been guided by the following principles which should be consulted when the
rules need interpretation or modification:
• Quality. The judiciary, collaborating with others experienced in dispute
resolution, is responsible for assuring the high quality of the dispute
resolution services to which it refers the public.
• Integrity. Dispute resolution services should be provided in accordance
with ethical standards and with the best interest of the disputants as the
paramount criterion.
j
• Accessibility. Dispute resolution services should be available to all
members of the public regardless of their ability to pay.
• Informed Choice of Process and Provider. Whenever appropriate, people
should be given a choice of dispute resolution processes and providers
and information upon which to base the choice.
• Self-determination. Whenever appropriate, people should be allowed to
decide upon the issues to be discussed during a dispute resolution
process, and to decide the terms of their agreements.
• Timely services. Dispute resolution services, to be most effective, should
be available early in the course of a dispute.
• Diversity. The policies, procedures and providers of dispute resolution
services should be reflective of the diverse needs and backgrounds of the
public.
• Qualifications of Neutrals. Dispute resolution services should be
performed only by qualified individuals. There are many ways in which a
neutral may become competent, and there are many ways to determine
qualifications of neutrals, such as assessing performance and considering
a neutral's education, training, experience and subject matter expertise.

TABLE OF CONTENTS
Page
EXECUTIVE SUMMARY
I. 1
A. Summary of Policy Recommendations 1
B. Illustrations of How ADR Services Will Be Delivered Under the
Recommendations of the Standing Committee 2
REASONS FOR ESTABLISHING A COURT-CONNECTED ADR
II.
SYSTEM 6
A. Public Confidence in the Justice System 6
B. The Value of ADR 7
C. Public Opinion Supports ADR in the Courts 9
D. The National Movement Toward ADR 10
FINDINGS: WHAT THE STANDING COMMITTEE HAS LEARNED 12
III.
A. The Strong Foundation for a Statewide Program of Court-
Connected ADR in Massachusetts 12
B. The Need for Institutional Support 15
IV. RECOMMENDATIONS FOR ACTION 18
V. FUTURE AGENDA OF THE STANDING COMMITTEE 31
A. Complete Qualification Standards 31
B. Consider Possible Amendments to the Confidentiality Statute
and Rules 31
C. Assist with the Comprehensive Budget Proposal 32
D. Consider the Role of Judges in Facilitating Settlement 32
E. Consider ADR Standards for Appellate Courts 33
F. Develop and Implement New Education and Outreach Initiatives.. 33
VI. APPENDICES 35
A. Proposed Amended Policy Statement on Dispute Resolution
Alternatives 35
B. Uniform Rules on Dispute Resolution 39
C. Interim Order and Guidelines 58
D. Report of the Task Force on Early Intervention 63
E. The Work of the Standing Committee 70

EXECUTIVE SUMMARY
I.
A. SUMMARY OF THE POLICY RECOMMENDATIONS
1 . Strengthen the 1993 Policy Statement on Dispute Resolution Alternatives. The
Supreme Judicial Court, in consultation with the Chief Justice for
Administration and Management, should strengthen the 993 Policy Statement
1
on Dispute Resolution Alternatives.
2. Education. The judicial branch should promote the understanding and
appropriate use of dispute resolution services in the courts through
comprehensive and ongoing education of the general public, attorneys, judges
and court personnel.
3. Rule of Professional Conduct. The Massachusetts Rules of Professional
Conduct for lawyers should include the following provision: 7.4(c) In
appropriate situations, attorneys should discuss with clients the advantages
and disadvantages of available dispute resolution options.
4. State Funding for Dispute Resolution Services. The Trial Court should
assemble and submit a comprehensive budget request for court-connected
dispute resolution services in order to ensure access to such services
throughout the state, regardless of ability to pay.
5. Administrative Capacity Building. The judicial branch should strengthen its
internal capacity to start, sustain and shape dispute resolution services by
developing systems to support the delivery of quality services at the local level.
6. Innovation. The judicial branch should support the development of innovative
approaches to dispute resolution services.
7. Information Management/Evaluation. The judicial branch should implement a
system for gathering, analyzing and reporting on data about dispute resolution
services.
8. Early Intervention. Early in the life of a civil case, each court throughout the
Trial Court should hold a case conference - an "early intervention event" - with
lawyers, and with parties in some cases, to review the pace of the litigation,
the use of alternative dispute resolution, and case management issues.
9. Uniform Rules. The Supreme Judicial Court, in consultation with the Chief
Justice for Administration and Management, should adopt Uniform Rules which
provide a structure and set forth minimum standards for the provision of court-
1