It has been a long winter! The last quarterly meeting of the Dispute Resolution Commission, which was to be held in Greensboro, had to be canceled in the wake of a snowfall that left roads icy and treacherous. We carried on as best we could with a telephone conference call, managing to complete most of our business. I for one am certainly looking forward to spring and to the sunshine and warm days that time of year brings.
My first few months as Chair of the Commission have been eventful and we have dealt – or in some cases begun to deal — with an array of issues. Court staff who are having problems obtaining mediator reports have reached out to the Commission, and we have been challenged to communicate related concerns of court staff to mediators in a manner that is perceived to be helpful; a mediation participant filed a complaint against a Trial Court Coordinator, blaming her for the fact that his mediation was never held; an unpublished COA Opinion and subsequent conversations with State Bar staff have raised issues regarding the Commission’s obligation to report lawyer mediators who fail to disclose required information on certification and certification renewal applications; and we continue to struggle with the drafting of agreements issue in mediations involving a pro se party or parties. If I have learned anything since becoming Chair, it is that our mediation programs involve a lot of moving parts and there is a large cast of characters. We’re all in this together and it is essential that we all do our part if our programs are to successfully serve the people of North Carolina.
What can we all do to make things flow?
- If you are a mediator, please do your very best to meet your deadlines for completion and to submit your Reports of Mediator timely and fully completed. This issue continues to arise, and Commission staff continue to field calls from court staff complaining that some mediators are not fulfilling their responsibilities. Please don’t be one of those mediators. Also, review the Standards of Conduct and Advisory Opinions periodically. Being familiar with these documents is the best way to avoid a complaint regarding your conduct. Most of the third party complaints the Commission has addressed this quarter involved mediators who should have been more aware.
- If you are court staff, please continue to do your best to report your caseload statistics on time. Your numbers matter! This Commission has an ongoing obligation to demonstrate that our programs are working and meeting the goals established for them in enabling legislation. The legislature doesn’t and shouldn’t take such things for granted. Your numbers are the best evidence we have that these programs are both necessary and working.
- If you are a judge, please encourage your staff to make caseload reporting a priority. Also, encourage the attorneys in your district to take mediation seriously and to cooperate with mediators when they call to schedule cases. Court-appointed mediators, in particular, report to Commission staff that their telephone calls and emails often go unreturned and they have to force the scheduling process. Also, encourage your district’s mediators to meet their completion deadlines, unless there is some compelling reason for delay, and to submit their Reports of Mediator timely. It’s all tied together. Mediators who don’t report or are chronically tardy with their reporting make extra work for your staff and also, make it harder for them to fulfill their reporting duties. Research indicates that many cases mediated are never reported to court staff with the result that statistics suffer. Please remember that MSC/FFS Rule 6 specifically authorizes judges to sanction mediators who fail to fulfill their case management duties. Regulation is a responsibility necessarily shared by the courts and the Commission.
- If you are a lawyer, cooperate with your mediator in getting your case scheduled for mediation. Be positive about the mediation process with your client, prepare him/her ahead of time for the session, and encourage him/her to participate meaningfully. Take the process seriously and do your homework. Come to mediation with a checklist of all the issues that need to be resolved and have a good idea of what your client needs in order to settle.
What about the Commission? What has it been doing and what more could it do? While the Commission is principally charged with certification and regulation, it has been focused on education for the past several months and we are now beginning to see the fruits of our efforts:
- We participated in a joint project with the Dispute Resolution Section to create a video explaining the mediation process to participants in district criminal court mediation. Most often these participants are not represented and have little knowledge of the mediation process beforehand. This five minute film, which features judges and mediators, explains the mediation process, why it is being offered to participants, and how it can benefit them. The video has been distributed to all Chief District Court Judges, DA’s, and community mediation centers in the State. A Spanish language version of the video is in the works and we hope to distribute it within the next few weeks.
- The Commission has also been developing Benchbooks on mediation and our mediation programs for judges and court staff. The MSC versions have been approved and are ready to go and FFS versions are nearing completion. The Commission undertook this project when it became aware of AOC statistics citing the numbers of judges and court staff eligible to retire over the next decade. The numbers are staggering! (See the chart on page 26 herein.) The Benchbooks are an effort to get nuts and bolts information about mediation into the hands of newly elected officials, appointees, and hires as they enter the system. In the coming months, Commission staff will also work with AOC and court staff to establish a mentoring program whereby experienced court staff will be paired with new staff in similar districts to facilitate their learning the ropes. The Commission will fund site visits if necessary to bring the new folks up to speed. The Commission is very much aware that judicial, court staff, and AOC staff are all stretched thin and that this is not likely to change anytime soon. We want to do our part to provide assistance and information.
- The Commission is working on two new advisory opinions on drafting with pro se parties. These opinions will specifically focus on situations where one party is pro se and the other represented, and will be posted on our website for review and comment in the months to come. The number of mediations involving pro se parties is growing, particularly in the family arena. Drafting with pro se parties has proved to be a particularly thorny issue and the Commission is doing its best to make solid, practical guidance available to mediators. Some information on this topic is already posted on the Commission’s website at www.ncdrc.org. Click on the new nuts and bolts Toolbox icon and access the section on agreement drafting and forms, and stay turned for more information.
What else should the Commission be doing? In thinking about that question, I am reminded that, as I started this article, “We’re all in this together”. To be truly effective and improve our programs, the Commission needs to hear from you – the boots on the ground. So… please let me know your reactions to this article, any concerns you have about our programs, and your thoughts about how the Commission can help you do your job better – whether you are judge, court staff, a mediator, or a lawyer. For our part, the Commission promises to take your suggestions to heart. After all, as we leave behind the long months of winter and tap into the sense of renewal and energy that spring offers, it is a good time to take stock, do our spring cleaning, and start to plan for the future. I wish you a happy spring, and know that we here at the Commission look forward to working with you in the days ahead!