Home

News

Useful Links

Case In Point

Downloads

FAQ

Docket Management 101: Case Referral

By Nancy Neal Yeend and Eileen Pruett

2/20/2009

Click here to download a PDF of this story

Court-connected dispute resolution (DR) programs, both state and federal, increased exponentially between the late 1970s and mid-1990s. Initially, the vast majority of these state court programs evolved out of necessity: the overwhelming increase in the number of drug related criminal cases placed significant pressure on the courts. It is evident that during the past 10 years a significant shift has occurred in the reasons for referring cases to DR. Although for some courts these programs are still required to manage case volume, in other courts the primary reason for using DR is “customer satisfaction,"¹ Just as the impetus for using DR has evolved, so have changes in the popularity of the processes used. Initially, settlement conferences and arbitration were the primary DR processes. Once mediation was introduced, it quickly became the DR process of choice.²

As the reasons for using DR evolved and as the shift in process usage changed, did the criteria for selecting cases changed? Do case selection criteria change depending on the court level (small claims, trial or appellate)? Does the nature of the case (family, personal injury, intellectual property, etc.) significantly modify the selection criteria? The authors will attempt to answer these questions and to provide basic case selection criteria.

Case Selection

Most cases benefit from participating in some form of DR. Even criminal cases benefit from mediation, especially victim offender cases with a first time offender, who demonstrates remorse. Victims of horrific criminal acts derive a cathartic value from mediation, when they are able to confront their perpetrators and when able to tailor their restitution.³ This article however, focuses on the use of mediation for civil cases in state courts.

Numerous sources address the selection criteria that best identify those cases that are most likely to benefit from using some form of court-connected DR process. In the broadest terms the “high probability of success measured both quantitatively and qualitatively, and potential negative impact on the parties, the court, or other”⁴ are often the fundamental framework supporting a court’s case selection criteria. In terms of court connected mediation program policy, case selection hinges on the ability to provide mediation services that adhere to mediation’s “core values.” These include respect for the parties’ right to make their own decisions, confidentiality of the process, and neutrality of the mediator. ⁵

Selection Criteria

Basics

When reviewing a case for potential referral to mediation, developing guidelines or selection criteria is useful. What are the basic criteria that must be considered? Should any one factor control?
When looking at more specific case selection criteria, the classic examples include cases where:

• parties are in on-going relationships. (custody, employment, businesses and neighbors )
• there have been no negotiations. (partnership, family and consumer)
• one or more participants (parties or their counsel) desire mediation.
• there are significant technical issues involved. (patent and medical malpractice)
• ease of settlement is identified.
• litigation costs are a significant portion of the amount in dispute. (probate)
• litigation is unaffordable. (limited jurisdiction cases)
• multiple parties and/or complex issues exist. (construction defects and multiple insurance carriers)
• experienced counsel represent parties.
• parties are willing and able to evaluate and communicate their needs and interests. ⁶
• basic discovery is completed. ⁷
• without settlement a case requires continuing court involvement. (custody)

There is not one specific basic factor that precludes a case from mediation; however, if there is a history of violence, substance abuse or similar issue, then closer scrutiny is required.

Reverse Selection

Some courts have developed “select out” or reverse case selection criteria, which target the types of cases specifically excluded from the DR program. ⁸ Trial court DR programs usually exclude cases involving class action, prisoner applications, worker compensation, juvenile, and termination of parental rights. ⁹ Appellate courts regularly exclude cases involving self-represented litigants. ¹⁰ Pending orders, motions of first impression and novel legal questions are not selected for DR programs.

There are a few specific circumstances where DR is inappropriate. Cases that involve the need for “public sanctioning, or where there are repetitive violations of statutes or regulations [that] need to be dealt with collectively and uniformly” ¹¹ are not appropriate.

There are programs that use geographic proximity of the parties (distance to the mediation site) as one factor to screen out cases. Still other courts screen out cases if there is a history of domestic violence, substance abuse or a question of cognitive ability. ¹² A number of court programs routinely screen out governmental entities, unless issues of confidentiality and ratification procedures are resolved in advance. Of course, if a legal precedent is required, mediation is not the appropriate forum.

It must be noted that at any time a court develops case selection criteria, the specific requirements must be delineated in the court’s protocol, policies and procedures. Identifying specific types of cases for inclusion or exclusion demonstrates an open court system, educates members of the bar, and facilitates detailed tracking of statistical data.

Additional Factors

At least one source opined that screening cases for DR suitability was unsuccessful primarily because it implies “one size fits all". In other words, all employment or all personal injury cases would benefit from DR, or all self-represented litigant cases should not participate in DR. ¹³ There is some validity to this argument, if the following factors are not considered when developing case selection criteria: timing, parties, court level and program goals. Questions that must be answered include: how soon should a case be referred to mediation, are the parties of a temperament that they can effectively participate (especially if self-represented), and what court is making the referral?  Additionally, how do program goals influence case selection?

1 | 2 | 3