NATIONAL STANDARDS FOR COURT‐CONNECTED MEDIATION PROGRAMS

• Author: Linda R. Singer,Edna A. Povich,Margaret Shaw
• Date: 01 April 1993
• Published date: 01 April 1993
• DOI: http://doi.org/10.1111/j.174-1617.1993.tb00293.x

NATIONAL STANDARDS FOR

COURT-CONNECTED MEDIATION

PROGRAMS

Margaret Shaw, Linda

R.

Singer, and Edna

A.

Povich, Project Directors

INTRODUCTION

These Standards for court-connected mediation programs have been

developed to guide and inform courts interested in initiating, expanding or

improving mediation programs to which they refer cases.

Courts

across the country are seeking ways to provide a better quality of

justice for various kinds of litigation, improve citizens’ access to justice, save

court and litigant costs, and reduce delays in the disposition of cases.

As

the

use of new forms of dispute resolution

as

an alternative to litigation

has

become a more widely accepted and understood phenomenon, the number

of court-connected dispute resolution programs has proliferated. In particu-

lar, courts are referring parties increasingly to mediation in civil, domestic

relations and minor criminal cases. Because mediation usually requires less

time and fewer resources than trials and produces earlier settlements, signif-

icant savings often can be realized in time and costs for both courts and

litigants. The direct involvement

of

the parties in the process of reaching

resolution also can provide a greater level of satisfaction, permit outcomes

that may be better suited to the parties’ needs and, in some cases, produce

greater likelihood of compliance with agreement

than

traditional adjudica-

tive processes.

Yet the greater the documentation of growing numbers of court-connected

mediation programs, the clearer it becomes that there are wide variations in

their design and implementation, and that there are few generally accepted

methods of assessing their quality. The dearth of generally accepted princi-

ples

to

guide courts in designing, implementing and improving such pro-

grams

risks

not only the waste of scarce resources on programs that may be

only marginally successful, but also confusion and dissatisfaction on the part

of individual

usets

as well

as

the public at large, who could come to view

Authors’

Note:

This document

was

developed under

a

grant from the State Justice Institute.

Points

of

view expressed herein are those

of

the authors and do

not

necessarily represent the

oficial position or policies

of

the State Justice Institute.

FAMILY AND

CONCILIATION

COWS

REVIEW,

Vol.

31

No.

2,

April

1993

156-225

0

1993 Center for Dispute Settlernent. Reprinted

by

permission.

156

Shaw

et

al.

I

NATIONAL STANDARDS

FOR

MEDIATION

157

these programs

as

a form

of

second-class justice. Generally accepted stan-

dards promoting quality should assist the effectiveness of programming

efforts,

as

well as their acceptance by users, including those whose only

contact with the public justice system may be their participation in court-

connected mediation programs.

Funded by

the

State Justice Institute, the Standards that follow were

developed as a joint project of the Center for Dispute Settlement in Wash-

ington,

D.C.,

and the Institute of Judicial Administration in New York City,

with the active involvement of an 18-member Advisory Board comprised of

experienced and respected individuals from throughout the country. A list of

Advisory Board members and project staff follows this introduction. Points

of view expressed in the Standards are those of the Advisory Board members

and project staff, and do not necessarily represent the official position or

policies of the State Justice Institute.

The Advisory Board includes judges, state and local court administrators,

mediators and mediation program administrators, attorneys for both lower

and higher income individuals and corporations, academics, evaluators, and

officers of professional court and mediation organizations. The Standards

that have resulted from the deliberations of this diverse Board as well

as

from

input during a public comment period reflect consensus among people of

very different perspectives and points of view.

Mediation

is

a term that has been used to describe a range of practices

designed to help parties in conflict. Likewise, various kinds of relationships

have been established between mediators and mediation programs and the

courts. The terms “mediation” and “court-connected,” as used in these

Standards, are defined at the outset of this document (see

Definitions

at iv.)

The Standards recognize that mediation is used in many different types of

cases, from minor criminal disputes, small claims disputes and domestic

relations cases to complex civil matters. The Standards are intended to ap-

ply to court-connected mediation programs that handle all such cases, al-

though some of the Standards will apply with more force in some types of

programs than in others. The Standards are not intended, however, to apply

to judicially-hosted settlement conferences. While judges often encourage

parties to settle cases using some

of

the techniques used by mediators, judges

are

subject to their own codes of ethics, and their handling of the cases before

them is within the exercise of their individual discretion. Nor are the Stan-

dards intended to apply across the board to programs at the appellate level.

While many of the Standards may be applicable to programs handling cases

on appeal, they have been developed with trial courts in mind.

The goal of the Standards is to inspire court-connected mediation pro-

grams of high quality. The Standards are intended

to

be used by courts as

158

FAMILY

AND CONCILIATION COURTS

REVIEW

guidelines to achieving that end. They

are

not intended to be adopted in

legislation or court rule, to create new duties and responsibilities that give

rise to liability, or to function as rules that inhibit creativity and innovation.

The Standards recognize that court-connected mediation programs need to

be designed and implemented in ways that take account of local needs and

circumstances. In some jurisdictions, for example, guidelines for “courts”

will need to be read

as

applying to court administrators; in others, depending

upon the size and structure of the court system, they will need to be read as

applying to judges. Finally, the Standards should not discourage courts from

adopting programs because current shortages

of

resources preclude adher-

ence to all

of

their provisions. The Standards do not distinguish between

required and recommended provisions. At the same time, they reflect the best

thinking currently about what constitutes quality in courtconnected media-

tion programming efforts.

The Standards are organized sequentially in the order in which issues

might be expected to arise during a program’s operation. Thus, they begin

with provisions related to access, and end with program evaluation. There

are a number of areas where, because of

the

interrelatedness of the topics, a

certain degree of duplication occurs, Given the importance

of

each

of

the

topics addressed, consolidation was rejected in favor of publishing a set of

Standards, any one of which could stand on its own.

Overall, it is hoped that general acceptance and widespread implementa-

tion of these Standards will enhance confidence in and satisfaction with

our

public justice system. At a minimum, their publication should promote

thoughtful dialogue about the critical issues they address.

+**