By Gary S. Cash
As published in the NC State Bar Journal, Fall 2017
Just over thirty (30) years ago, NC Supreme Court Chief Justice James G. Exum, Jr., delivered an address that gave historic impetus to a reformation of the way in which we resolved legal disputes in our state. His “The Lawyer as Peacemaker” speech included a call to action: “The time has come for lawyers to begin to emphasize their role as mediators, conciliators, and peacemakers … Lawyers must begin to take advantage of alternatives to litigation for dispute resolution…” These remarks contributed to a national tidal wave of legal change which followed the tumultuous social upheaval of the 1960’s and 1970’s when American society was becoming increasingly litigious and the burdens placed on our legal system were becoming increasingly overwhelming. The time had come, many jurists said, for finding more efficient and less costly ways to address and settle conflict. Reformers suggested that fostering cooperation and consensus building between the parties to a dispute could empower them to settle their differences without litigation.
Since Chief Justice Exum’s address, the lawyers of this state have embraced the concept of alternatives to litigation, with a particular focus on mediation as the preferred alternative process. In 1983, the NC Bar Association formed its Alternatives to Litigation Task Force, a body which ultimately became the NCBA Dispute Resolution Committee. By the early 1990’s, the work of that Committee – which involved lawyers, judges, business leaders, AOC personnel and many others – had led to the passage of legislation which created the Statewide Court-Ordered Arbitration Program, the NC Child Custody Mediation and Visitation Program, and the Mediated Settlement Conference Program in civil superior court (MSC) pilot. The statutory foundations for the alternative dispute resolution movement in our state courts had thus been laid. In 1995, the NC Dispute Resolution Commission (DRC) was established by the NC General Assembly and given the primary charge of certifying and regulating our courts’ mediators and their trainers.
The DRC’s 20th Year
In late 2015, the DRC celebrated its20th Anniversary, marking a significant milestone in its history. This event has inevitably led those of us at the Commission to reflect upon the successful evolution of our dispute resolution processes and programs in our state’s courts as well as to critically evaluate the present and to consider the future. Are the DRC and the programs which it supports currently meeting their statutory mandates and beneficially serving our citizens, courts, and legal and mediator communities? What should be the Commission’s goals as we go forward?
Developments and Challenges along the Way
The DRC was initially created as a nine-member body with its membership including judges, attorneys, mediators, and interested members of the public drawn from across the state. The DRC’s first chair was NC Court of Appeals Judge Ralph A. Walker, and its first Annual Report was issued on August 15, 1996. Judge Walker remained at the helm for seven years, ensuring stability and consistency during the DRC’s early, formative years. By the end of FY 1995/96 and the DRC’s first year of operations, the MSC Program had been expanded to all NC superior court judicial districts. The program’s rapid expansion was fueled in part by its party-pay component which eliminated the need for expenditure of tax dollars. The number of certified mediators grew rapidly as well that year and reached 525 as attorneys and others realized that the new program was here to stay and likely well on its way to becoming an integral part of our civil courts.
Over the last two decades, the number of certifications issued in all programs by the DRC has increased to almost 2000, and the DRC has grown to 16 members. The Commission has convened that membership, numerous ex-officio members, its DRC staff, representatives of the NCBA Dispute Resolution Section, legislators, court officials, and many others, all of whom have worked with great determination to support the growth and development of dispute resolution processes and programs in our courts. Additionally, it has aided a number of other branches of state government in their efforts to provide mediation to their constituencies.
Several noteworthy highlights of the DRC’s activities since its creation follow:
- Standards of Conduct. Taking seriously its charge to regulate mediators and to protect the public, one of the new DRC’s first orders of business was to promulgate ethical Standards of Professional Conduct for Mediators which were adopted in 1996 by the NC Supreme Court.
- Pre-Litigation Farm Nuisance Mediation. In 1995, the Farm Mediation Program was established by statute to address agricultural disputes, especially disputes involving hog farms and the difficult issue of hog waste. The Farm Program statute served as a template for other mediation programs established thereafter by the General Assembly to address specific types of disputes, i.e., the Y2K Mediation Program (1999) and the Electric Supplier Territorial Dispute Mediation Program (2006).
- Advisory Opinion Policy. In 1998, the DRC adopted its Advisory Opinion Policy to address rule interpretation questions and ethical dilemmas faced by certified mediators. Thirty-one Opinions have been issued to date.
- Family Financial Settlement Program. In 1997, the General Assembly established a pilot program for the pretrial mediated settlement of equitable distribution, alimony, and support disputes (FFS Program). The DRC helped design this new program and the DRC’s proposed Rules were adopted by the Supreme Court on December 30, 1998. Legislation was enacted to provide for statewide expansion of this program in July of 2001.
- Complaints. Since its creation, as part of its charge, the DRC has received and investigated a number of formal complaints against certified mediators. The DRC has historically made a concerted effort to be a proactive regulator, seeking to educate mediators and encourage ethical conduct rather than resorting to discipline as a first line of defense. That said, when necessary, it has imposed appropriate sanctions.
- Continuing Mediator Education. Since FY 2002/03, the DRC has recommended that certified mediators voluntarily complete annually at least 3 hours of continuing mediator education (CME). Mediators must report on CME taken on their annual certification renewal applications.
- Green Book. In FY 2002/03, the DRC and the NCBA’s Dispute Resolution Section jointly published a resource book entitled Alternative Dispute Resolution in North Carolina: A New Civil Procedure(the “Green Book”).It was widely distributed across the state to legislators, judges, certified mediators, mediation training programs, law schools, and even well beyond our borders. It was revised and reprinted in 2012.
- Clerk Mediation Program. In FY 2003/04, the DRC convened an ad hoc committee to consider the establishment of a Clerk Mediation Program. Upon the recommendation of the DRC and the NCBA Dispute Resolution Section the Legislature created the new Clerk Program in 2005, and the DRC proposed program rules which were adopted thereafter by the NC Supreme Court.
- District Criminal Court (DCC) Mediation Program. In FY 2005/06, at the request of three community mediation centers, the DRC established a new ad hoc committee to establish criteria whereby district criminal court mediators at those centers could become certified and regulated by the DRC. This effort culminated in the statutory creation in 2007 of the District Criminal Court Mediation Program. Currently, six dispute settlement centers participate in this Supreme Court sanctioned program.
- Statistical Reporting. For many years the DRC has distributed statistics regarding the operation of the state’s court mediation programs annually to the courts, the Legislature and others. In FY 2014/15, of 4194 cases mediated in the MSC Program, 2395 cases, or 57%, were resolved at mediation. If one considers cases that were reported as settled prior to mediation or during a recess, the percentage increases to over 65%. Similarly, in the FFS program, the percentages of cases mediated which settled were 70% and 71% respectively. These results strongly suggest that our mediated settlement conference programs are fulfilling the statutorily stated goals of making civil litigation more economical, efficient, and satisfactory to the parties, their representatives, and the State.
The Landscape Today
While these highlights are by no means the complete story, they illustrate the evolution of the dispute resolution landscape since the MSC Pilot Program in 1991.They also reflect the variety and complexity of issues that the DRC has tackled and the innovation undertaken during its twenty-year history.
The DRC continues to be fully engaged in pursuing its statutory charges, and recently completed these outreach projects:
- DVD/Video Project. In collaboration with the NCBA’s Dispute Resolution Section, the DRC produced and distributed both an English and Spanish language video about the district criminal court mediation program for use by North Carolina’s district courts. Both were distributed to all chief district court judges, district attorneys, and community mediation centers in North Carolina.
- Benchbooks. The DRC has written, published, and distributed Benchbooks for both the MSC and FFS Programs to all of North Carolina’s senior resident superior court judges, chief district court judges, and their staff. These books offer a nuts-and-bolts guide to mediation and the operations of the MSC and FFS Programs. AOC reports that large numbers of sitting judges and court staff, mediators, and lawyers – all a part of the “baby boomer” generation –will be retiring from their work with our court system during the next ten years. These publications will serve as a resource for the new judges and court staff hires who, over the next decade, will be replacing these retirees and who may be less familiar than their predecessors with the DRC’s programs.
- Mediator Agreement Drafting and Pro Se Parties. In 2013, the DRC considered the complex issue of mediator drafting when a pro se party or parties are participating in a mediation and an agreement is reached. This exploration was informed by the NC State Bar FEO 2 issued in 2012 and resulted in the adoption of two Advisory Opinions (A.O. No. 28and A.O. No. 31)by the DRC. The DRC also recently published a Guide to Mediation for Parties Not Represented by Attorneys for both the MSC and FFS Programs, (included in the Benchbooks) and posted on the DRC website.
Moving Forward – Seeking a Vision for Tomorrow
During its first twenty years, the DRC opened its office, established a framework for certification and regulation, initiated new court mediation programs, drafted multiple sets of rules and the Standards of Conduct for Professional Mediators, promoted mediation, and worked diligently to support judges and court staff in their efforts to implement their programs. The court programs have yielded excellent results and, with the passage of time, now sell themselves due to their success. The early years of frantic program expansion appear to be behind us and we are now tweaking certification and regulatory frameworks rather than creating them out of whole cloth.
Significant commitment and tireless work by many have allowed the DRC to accomplish all that it has. In just two decades the mediation programs in our courts have gone from experimental to institutionalized. Much credit for this success is due to our state’s lawyers, judges, and mediators, who, along with court staff and other dedicated professionals, have woven the tapestry of alternative dispute resolution in North Carolina from its beginnings. I sincerely thank each of you as a member of our Bar for your contribution to this effort.
Now, the DRC’s 21st year, is an opportune time to take stock of where we are, develop a future vision of mediation and other dispute resolution efforts in the courts and elsewhere in our state, and determine how the Commission can participate in realizing that vision.
The next twenty years for the DRC can be a time of building on program successes, of continuing its dedication to the integrity of the mediation process and to the high ethical standards of its mediators and trainers, and of promoting further innovation in the use of alternatives to litigation. The Commission pledges to continue this work, and we hope that you will add your voices to our discussions, your answers to our questions, and your ideas to our proposals.
This will be demanding work, but such an effort is consistent with a challenge Judge Walker recently issued: “We are ordering our citizens to participate in mediation and to pay for the opportunity. That makes it incumbent upon us to always be evaluating our programs and be looking for ways to improve them. I would hope the Dispute Resolution Commission would take an active role in championing such efforts.”
I believe that if we continue to collaborate, the pathway to the future will bring further integration of mediation and other dispute resolution techniques into our justice system and other facets of our society, thereby benefiting those whom we each serve foremost, the people of the great state of North Carolina.