Fall 2001, pg. 222. Alternative Dispute Resolution.

Maine Bar Journal

2001.

Fall 2001, pg. 222.

Alternative Dispute Resolution

Maine Bar JournalFall 2001Alternative Dispute ResolutionAlternative Dispute Resolution becomes mandatory in Maine Superior Courts on Jan. 1, 2002. Not everyone thinks it's a good idea. But proponents and opponents each make a strong case. Here's a look at both sides of the issue, plus practical advice on using ADR, the new Civil Procedure Rule 16B governing it and the rule's advisory notes, along with opposing statements from the bench.

PRO: Jack Erler

New Civil Procedure Rule 16B results from the recommendation of the Maine Judicial Department's ADR Planning and Implementation Committee, established in response to the 1993 Report of the Maine Legislature's Commission to Study the Future of Maine's Courts. The Commission's public surveys in the early 1990s found "widespread citizen dissatisfaction directed at the cost, delay and polarization of litigation and preference for seeking alternatives to the litigation and trial forum for resolution of civil disputes."

The ADR Committee conducted a pilot project of Superior Court cases filed between July 1, 1995 and July 1, 1997 in two pairs of counties: Androscoggin and Aroostook, and Kennebec and Sagadahoc. A third pair, Oxford and Penobscot counties, in which no ADR was used, served as a control. In Kennebec and Sagadahoc (the "early counties"), ADR occurred generally within sixty days after the answer was filed and prior to discovery. In Androscoggin and Aroostook (the "mid-point counties"), ADR occurred midway through discovery.

The University of Southern Maine's Muskie Institute of Public Affairs analyzed the results and found:

þ Higher settlement rates and earlier settlements in all pilot project counties, resulting in substantially fewer cases requiring trials or dispositive motions for resolution.þ Cost savings for litigants as a result of such earlier settlement, and a reduced need for motions, hearings and discovery requests.þ Reduced use of court time to the benefit of other litigants who sought court processes to resolve their disputes.þ Higher settlement rates in the early counties than in the mid-point counties, notwithstanding attorney complaints that settlement could not occur before there was some discovery.After the pilot project, Rule 16B went through two years of drafting and review by the Court and the Civil Rules Committee as well as the ADR Committee, including a public hearing and public comments.

Even before it took effect, the rule has been criticized as expensive, time-consuming, ineffective, burdensome, a barrier to trial, and a step toward replacing the right to trial. Neutrals have been accused of pushing ADR for their own gain.

I share some of these concerns. As a mediator, I observe that ADR works when the parties voluntarily participate. As an attorney who has tried cases, I believe there should be no unnecessary impediments to going to trial. Discovery is valuable, and neither side should have an unfair advantage in obtaining the information necessary to evaluate and try its case. The judicial system should be open to everyone. ADR should not replace our trial system.

Even those who criticize Rule 16B recognize the value of ADR. We have all used ADR. We all have had cases in which there were reasons for such use: saving time and money, saving the relationship between the parties, controlling the dispute resolution process, avoiding an unpredictable outcome. We also have all had cases where ADR would not work: when a precedent was needed, when discovery was required beyond the agreement of the parties, when one or both parties did not want to settle or had no authority to do so.

I disagree that neutrals pushed for Rule 16B for financial gain. The rule is the result of the court's effort to respond to citizen concerns about the judicial process. ADR without Rule 16B has been going on for years, and many paid neutrals are themselves trial attorneys.

I also disagree that lawyers are a barrier to resolving civil claims. It is the advocate who "makes the case" by finding, assembling, and presenting the facts and the law. The rule's goal is to enhance the opportunity for resolution-not by ignoring what the lawyers have done, but by providing a forum for the communication of that information. The role of the attorney in ADR is as...