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Virginia
Court-Connected ADR
Dispute Resolution Services
Supreme Court of Virginia
Development of
Dispute Resolution
1989 Futures Commission Report –
Vision 3: Judicial system needs to provide
an array of dispute resolution options
April 1991 - Department of Dispute
Resolution Services created
1993 - Enabling legislation passed
Goals of Alternative
Dispute Resolution
To reduce the cost for litigants and the judicial system
To enhance the quality of the court process
To offer a range of options for resolving disputes
To provide faster resolution of cases
To improve public satisfaction and perception of the court
Goals Continued
To encourage parties to take
responsibility for their disputes
To broaden access to dispute
resolution services
To encourage innovation and
create new methods of dispute
resolution
Continuum of
Dispute Resolution Processes
Conflict
Avoidance
Negotiation Conciliation Mediation Neutral
Case
Evaluation
Settlement
Conference
Adjudication
Dispute Resolution Processes
Least Formal Most Formal
Mediation
Process in which a neutral facilitates communication between the parties to help them resolve their dispute
Mediator does not make decisions for the parties
Parties are responsible for the resolution
of their own dispute
Process is voluntary
Attorneys may attend
Stages of Mediation
Introduction
Sharing of Information
Identification of Issues
Generation of Solutions
Agreement/Resolution
Why Mediate?
Allows parties to express their feelings
Helps parties understand each other’s perspectives
Transforms miscommunication into understanding/trust/problem-solving
Helps parties recognize their underlying interests, overlapping interests and areas of agreement
Helps parties devise their own solutions, building on interests they identified
Establishes a safe, informal environment
Offers a voluntary and confidential process
Ability to negotiate win/win outcomes
Advantages of Mediation
Improved communication
Creative solutions
Stronger ownership of agreement
Opportunity to deal with underlying
interests
Reduced time and expense
Model for future conflict resolution
Virginia – Leader in ADR
Legislation authorizing use of ADR
Guidelines for the Training and Certification of Court-Referred Mediators
Searchable Mediator Directory
Standards of Ethics/Grievance Procedures
State Funding for access to mediation services
Rules of Professional Conduct encourage ADR
Exit surveys indicate >90% party satisfaction and
80 – 85% settlement rate
Virginia Model
Judges have explicit authority to refer all civil matters to a dispute resolution orientation session
Mediation Coordinators assist with screening and referral process
Parties may opt out of free orientation session
Further participation in mediation is voluntary
Rules of Professional Conduct require attorneys to consider ADR with the client in every case
Mediation is held within 15-30 days after referral
Mediation services available state-wide at no cost in J&DR and General District Courts through a system of contracts/state funding
Current Court Procedures
Court shall set date for parties to return in accordance with regular docket .
Parties may voluntarily agree to pursue mediation or other ADR process following the orientation session.
Parties may select mediator from searchable directory at www.courts.state.va.us.
For mediations conducted under an OES contract and for J&DR custody, visitation and support cases, services are free. Otherwise, parties pay mediator.
Confidentiality
of Mediation Process
All memoranda, work product, and case files are confidential
Final written agreement not confidential
Materials and communications can be disclosed (1) if all parties agree, (2) if there is a dispute between parties and neutral, (3) where a threat to inflict bodily injury is made, (4) where communications are used to plan, commit or conceal a crime, or (5) where material is otherwise subject to discovery
Cases Appropriate
for Mediation
Parties have an ongoing relationship
Communication problems exist
Parties want to tailor a solution to meet
their specific needs
Privacy is important
Parties want control over the outcome
Incentive to settle due to time, money, etc.
Cases Inappropriate
for Mediation
Party wishes to establish legal precedent
Party cannot negotiate for herself or himself
Physical or psychological abuse impairs ability
to protect his or her interests
Inequity of knowledge is extreme
Public policy development - openness/record needed
Options are dictated or limited by law
Coordinators
OES has contracts with 30 mediation coordinators statewide who assist clerks’ offices in managing the mediation program in various courts. Coordination and provider models vary depending on the need of the court.
Coordinators:
Serve as a liaison between the court and the mediation providers
Provide case management services
Perform other duties identified by the individual court
Orientation Session
Parties may opt out of no-cost orientation session by stating in writing that they do not wish to participate.
Conducted by coordinator or mediator
Assess appropriateness of ADR
If adjudication selected, case continues as originally docketed
If ADR selected, information on private neutral selection and free contract mediators provided
Decision to proceed with ADR is voluntary
Contracts
OES has mediation services contracts with 48 mediation providers statewide
Contractors include non-profit community mediation centers, attorney-mediators and private providers
Services are provided at no cost to the parties at J&DR and General District Court levels throughout most of Virginia
Court-Referred ADR ExpendituresExpenditures by Fiscal Year*
• 1994-95 $ 55,715• 1995-96 $ 104,965• 1996-97 $ 126,655• 1997-98 $ 118,947• 1998-99 $ 204,247• 1999-00 $ 296,299• 2000-01 $ 567,280• 2001-02 $1,124,784• 2002-03 $1,204,410• 2003-04 $1,255,180• 2004-05 $1,551,410• 2005-06 $1,519,000• 2006-07 $1,618,797• 2007-08 $1,777,074• 2008-09 $1,860,775• 2009-10 $1,923,452• 2010-11 $1,882,329• 2011-12 $1,927,400• 2012-13 $1,941,624• 2013-14 $1,999,749• 2014-15 $2,040,942• 2015-16 $2,094,453• 2016-17 $2,097,791
$0
$500,000
$1,000,000
$1,500,000
$2,000,000
$2,500,000
199
4-9
5199
5-9
6199
6-9
7199
7-9
8199
8-9
9199
9-0
0200
0-0
1200
1-0
2200
2-0
3200
3-0
4200
4-0
5200
5-0
6200
6-0
7200
7-0
8200
8-0
9200
9-1
0201
0-1
1201
1-1
2201
2-1
3201
3-1
4201
4-1
5201
5-1
6201
6-1
7
*Expenditures reflect mediations, mediationcoordinator contracts and Judicial Settlement Conferences.
Family Mediation
Section 20-124.4 of the Code of Virginia authorizes payment for each custody, visitation and support mediation.
This legislation has been tremendously helpful in increasing the volume of family mediation statewide.
Nearly 13,000 family mediations were conducted during the 2016-17 fiscal year at no cost to the parties.
Custody, Visitation & Support
State-Funded Mediations
4,024
6,649
7,364 7,595
9,252
7,979
9,86010,278
11,240
11,83711,699
11,88911,745
12,41212,810
12,128
12,894
0
2,000
4,000
6,000
8,000
10,000
12,000
14,000
2000-
2001
2001-
2002
2002-
2003
2003-
2004
2004-
2005
2005-
2006
2006-
2007
2007-
2008
2008-
2009
2009-
2010
2010-
2011
2011-
2012
2012-
2013
2013-
2014
2014-
2015
2015-
2016
2016-
2017
2000-2001
2001-2002
2002-2003
2003-2004
2004-2005
2005-2006
2006-2007
2007-2008
2008-2009
2009-2010
2010-2011
2011-2012
2012-2013
2013-2014
2014-2015
2015-2016
2016-2017
Data collected prior to 2000 does not identify mediations by case type or court level.
J&DR Non-CVS
State-Funded Mediations
53
438
117
173195
125
155
6950
68 48 4545 54 4434
20
0
50
100
150
200
250
300
350
400
450
2000-
2001
2002-
2003
2004-
2005
2006-
2007
2008-
2009
2010-
2011
2012-
2013
2014-
2015
2016-
2017
2000-20012001-20022002-20032003-20042004-20052005-20062006-20072007-20082008-20092009-20102010-20112011-20122012-20132013-20142014-20152015-20162016-2017
General District Court
State-Funded Mediations
1,091
1,7071,8011,832
2,0291,965
2,0591,974
2,322
2,0831,957
2,0902,206
2,0712,0101,973
1626
0
500
1,000
1,500
2,000
2,500
2000-
2001
2002-
2003
2004-
2005
2006-
2007
2008-
2009
2010-
2011
2012-
2013
2014-
2015
2016-
2017
2000-20012001-20022002-20032003-20042004-20052005-20062006-20072007-20082008-20092009-20102010-20112011-20122012-20132013-20142014-20152015-20162016-2017
Data collected prior to 2000 does not identify mediations by case type or court level.
Types of Family Cases
84%
1% 12%
3%
Custody, Visitation &
Support
Truancy
Restorative Justice
Other Issues (Primarily
Equitable Distribution &
Spousal Support
Types of Non-Family Cases
1%
11%
16%
11%
1%
16%18%
2%
24%Debt
Personal Injury
Business/Consumer
Employment
Contract
Landlord/Tenant
Neighborhood
Other Issues
Personal Property
Top 20 Juvenile Courts – 2016-17 Fiscal Year
Custody, Visitation & Support Mediation
1,541
1,327
918
791
728
466 461
334 293285 263 263 251 249 245 231
220 209 204 184
0
200
400
600
800
1,000
1,200
1,400
1,600
Number of CVS Mediations
Virginia Beach
Chesterfield
Henrico
Chesapeake
Prince William
Norfolk
Hampton
Richmond City
Portsmouth
Spotsylvania
Amherst
Fauquier
Newport News
Lynchburg
Loudoun
Rckngham-Harsbg
Frederick
Campbell
Suffolk
Accomack
Client Satisfaction Mediation Process Was:
– Very Helpful 73.9%
– Somewhat Helpful 19.7%
– Not At All Helpful 4.5%
– No Response 1.1%
Use Mediation Again:
– Yes 91.4%
– No 5.7%
– No Response 1.8%
Recommend Process To Others:
– Yes 94.7%
– No 2.5%
– No Response 1.7%
Ended With Agreement On:
– All Issues 64.0%
– Some Issues 19.9%
– None of the Issues 13.4%
– No Response: 1.9%
Agreement Reached
Agreements are enforceable as any other
contract
Upon request of all parties and consistent with
law and public policy, court shall incorporate
the terms of agreement into final decree
disposing of case
Judge should review agreements
Mediator should inform court if orientation
session or mediation does not occur
How ADR Process Concludes
Agreement reached should be put in writing and terms provided to court.
Ideally, agreement is enforceable.
If parties do not reach an agreement, that should be reported back by the neutral, without any comment or recommendation.
Where there is no settlement, court might consider scheduling a pre-trial conference and ask the parties whether the issues were narrowed or streamlined as a result of the ADR process.
Virginia Judicial
Settlement Conference Program
13-Year Cumulative Statistical Update
November 2003 – June 30, 2017
Retired Circuit Court Judges
Bringing Calm to the Storm
Referred Cases 14,282 cases have been referred
to settlement conferences
since 11/03.
12,181 cases have been paid for
since 11/03.
10,119 cases have been captured
and are graphically displayed
on the following charts.
3,980 cases are pending receipt
of reports or actual
conference.
183 cases were cancelled before
reaching conference.
0
2000
4000
6000
8000
10000
12000
14000
16000 14,282
12,181
10,119
3,980
183
Ca
se
s
Settlement Conference Expenditures
$ 7 , 4 0 0
$ 5 7 , 8 0 0
$ 10 5 , 8 0 0
$ 13 3 , 8 0 0
$ 17 1, 0 0 0
$ 16 5 , 0 0 0
$ 2 19 , 0 0 0$ 2 13 , 2 0 0
$ 2 2 0 , 2 0 0
$ 2 2 5 , 2 0 0
$ 2 2 3 , 8 0 0$ 2 2 2 , 8 0 0
$ 2 8 3 , 5 0 0
$ 2 9 2 , 0 0 0
$0
$50 ,0 0 0
$10 0 ,0 0 0
$150 ,0 0 0
$2 0 0 ,0 0 0
$2 50 ,0 0 0
$3 0 0 ,0 0 0 # Cases
37
290
528
670
855
825
1116
1065
1101
1126
1121
1114
• 1165
• 1168Effective 7/1/15, payment increased from $200 to $250 for each conference conducted after 6/30/15.
Case Type Categories
Tort/Personal Injury34.3%
Domestic48.8%
Commercial13.7%
Miscellaneous3.2%
Tort/PI Domestic Commercial Miscellaneous
Types of Cases
Assault0.6%
Auto Accident27.0%
Medical Malpractice
1.2%
Libel Defamation0.5%
Slip & Fall1.7%
Other PI3.3%
Probate0.9%
Other Domestic1.3%
Divorce46.6%
Debt0.9%
Construction2.7%
Contract4.5%
Other Commercial1.2% Landlord
Tenant0.6%
Real Estate2.4%
Condemnation1.4%
Miscellaneous3.2%
Agreement Rate
63.3% of referred
cases successfully
reached an
agreement either
during or soon
after the
conference
Note: This does NOT
include pending cases
61.5%
1.8%
36.7%
Reached at time of conference
Reached after, but as result of conference
Not Reached
Length of Conferences
The average length of a conference is 3.3 hours.
0
500
1000
1500
2000
2500
3000
1 2 3 4 5 6 7 8 9 10+
764
2585
3001
1734
861
411243 126 54 74
Cases
Hours
Referring Circuit Courts
68% of all cases have been referred by 10 courts in the Tidewater Area (Hampton, Suffolk, Virginia Beach, James City/Williamsburg, Norfolk, Newport News, Isle of Wight, Portsmouth, York and Chesapeake).
32% of the cases to date have been referred by 110 other courts across Virginia.
120 of Virginia’s 121 circuit courts have referred cases.
Number of Cases
Referred By Court
1787
1625
15161174646639587443
442393
3897
Virginia Beach
Newport News
Hampton
Chesapeake
JCC/Wmsbg
York
Norfolk
Portsmouth
Henrico
Suffolk
Other Courts
Party Satisfaction
0
1,000
2,000
3,000
4,000
5,000
6,000
7,000
8,000
9,000
10,000
Very Appropriate SomewhatAppropriate
Not At AllAppropriate
9,702
63472
Settlement Conference Was:
Data reported from 10,408 exit surveys received to date.
99.3% of parties viewed settlement conference as appropriate.
Party Satisfaction
0
1,000
2,000
3,000
4,000
5,000
6,000
7,000
8,000
9,000
Very Helpful Somewhat Helpful Not At All Helpful
8,620
1459
329
Settlement Conference Process Was:
Data reported from 10,408 exit surveys received to date.
96.8% of parties viewed conference as very or somewhat
helpful.
Party Satisfaction
0
2,000
4,000
6,000
8,000
10,000
12,000
Yes No
10,344
64
Would You Request a Conference Again?
Data reported from 10,408 exit surveys received to date.
99.4% of parties would request a settlement conference again.
Party Satisfaction
0
2,000
4,000
6,000
8,000
10,000
12,000
Yes No
10,362
46
Would You RecommendSettlement Conference?
Data reported from 10,408 exit surveys received to date.
99.6% of parties would recommend settlement conference.
Feedback: Exit Survey Comments
➢ “This process was extremely effective. The demeanor and knowledge of the judge carried tremendous goodwill and weight with my clients.”
➢ “This is one of many settlement conferences in which I have participated and I highly recommend the process; it is wonderful for the “little man” with limited resources to be heard without going broke in the process.”
➢ “This is probably the best system the Supreme Court has devised to resolve matters inexpensively and completely.”
➢ “Settlement in this case was nothing short of a miracle! The judge has my sincere gratitude as well as that of my client.”
➢ “This is the most helpful process. I don’t know how we practiced law without it in the past!”
Feedback: Exit Survey Comments
➢ “This process is an excellent use of judicial resources and saves the litigants thousands of dollars in trial preparation, as well as the court’s trial calendar.”
➢ “ …settlement conferences are 9 times out of 10 the most efficient manner to resolve divorce matters.”
➢ “In all, there were five attorneys involved in this case. Unfortunately, the five of us could not agree on the time of day, but in about five hours, with the help of [the judge], all issues, including the original complaint and the counter-claim, had been resolved. Amazing.”
➢ “I, too, was surprised that we could achieve a resolution through a settlement conference. This really was client counseling and negotiations at its best. We find this program to be of the best quality!”
Feedback: Exit Survey Comments
➢ “The practice of law does not get any better than this settlement process.”
➢ “The judge leveraged his time on the bench to offer perspective to the parties that bridged the gap in this case!”
➢ “The settlement judge did more than settle a tough lawsuit by also restoring a relationship.”
➢ “The judge was able to help the parties to use their common sense while making decisions about emotional issues. He was able to help them arrive at a settlement after nine years of feuding. Excellent!”
➢ “The judges who conduct settlement conferences are the unsung heroes of the judicial system. They are real public servants!”
Parent Education
§16.1-278.15 & § 20-103 provide that all parties to
contested custody, visitation and support cases must
attend a four-hour class on:
1) the effects of separation or divorce on children
2) parenting responsibilities
3) options for conflict resolution
4) financial responsibilities
Many parent education providers around the state have
received training to implement this program.