By: James G. Apple, Editor-in-Chief, International
Judicial Monitor and President, International Judicial Academy
The most frequent complaint that I hear in meeting with and
talking to judges around the world is the increasing congestion of their
dockets. It seems that, as courts and judges in many countries improve their
services and become more sophisticated and competent, there is more willingness
on the part of citizens to use courts to resolve their disputes. This of course
is a very good development, but it has a downside: courts and dockets are becoming more crowded and otherwise competent judges are unable to keep up with
the workload. The old dictum, “justice delayed is justice denied” is
applicable, no matter the cause of the delay.
As a result of the bloating of case dockets in almost every
part of the world, many courts have searched for ways to speed up the handling
of cases and resolve the disputes in them. Courts and judges are increasingly
turning to mediation as a service of the courts to be offered to, and in some
instances, to be required of, litigants.
Mediation as a service of courts was an idea developed, at
least in the United States, by a Harvard law professor named Frank E.A. Sander, a
strong advocate of finding ways to resolve disputes in the courts, other than
trials. His advocacy began in 1976 when he delivered a seminal paper titled The
Varieties of Dispute Processing, presented at the Pound
Conference in 1976 in Minneapolis,
Minn. His book, Dispute Resolution: Negotiation, Mediation, and Other
Processes, which he co-authored and is used in most U.S. law schools, also
contributed to widespread interest in other ways of resolving disputes, As a
result of his efforts and others who picked up on the idea, a new phrase
entered the lexicon of legal systems, “alternative dispute resolution” or ADR.
These reformers argued that traditional ways of resolving disputes were
antiquated and unsuitable for the functioning of modern courthouses. ADR would
save time and expense, as well as reduce the overloaded dockets of judges. ADR
as a integral part of court administration would require changes and additions
to courthouse procedures, requiring that the courthouse would create different
“doors” for the different kinds of procedures that would be followed inside.
The movement thus created another new descriptive phrase, the “multi-door
courthouse.”
Professor Sander’s ideas caught on slowly in the United
States. Some states began to explore ADR ideas as early as the 1980s. Pilot
programs were established in some court systems to explore the efficacy of ADR
services in courts, some assisted by grants from the American Bar Association.
These programs, which were integrated into the trial process eventually came to
be called “court annexed programs” because they were officially connected to
and run by courts (other ADR services, non-annexed are offered by private
organizations, and have no affiliation with courts or judges). There are now in
the United States and in other countries multi-door courthouses with court
annexed programs offering one or more ADR services.
As developed over a period of 30 years, the most common type
of ADR services offered by courts is mediation. Other types of ADR found in
court annexed programs are arbitration, early neutral evaluation, summary
trials with summary arguments, settlement weeks, and settlement conferences.
All of these other methods have problems of administration and achieving the
ultimate goal of ADR, which is early settlement of the dispute. Thus mediation
has become the most popular and dominant form of ADR, at least in the U.S.
There are two issues involved in the creation and operation
of a court annexed mediation program in a court. One relates to the mechanics of actually deciding on and setting up the various parts of the system, which include finding personnel to run the system; providing a location for actual mediations; advertising for, recruiting and selecting mediators;