Rebecca Thiem, Chair
Dr. James Antes
Hon. Lee Christofferson
Rep. Kim Koppelman
Rev. Laurie Natwick
Staff: Christine Hogan
Chair Rebecca Thiem called the meeting to order at 10 a.m. She welcomed the members of the committee to its first meeting and said she was excited to work with people who were selected for their interest in and knowledge of ADR. She encouraged all committee members to speak their minds. She invited each member to introduce himself/herself and to take a moment to explain his/her background in ADR: Rebecca Thiem (trained mediator; chaired SBAND ADR Committee); Christine Hogan (trained mediator); Judge Christofferson (trained mediator, background in social work); Dick Gross (public policy facilitation); Dr. Jim Antes (faculty member in UND Psychology Department, trained mediator, trains mediators); Leo Wilking (chaired SBAND ADR Committee); Dan Hovland (lawyer/mediator); Kristine Paranica (trained mediator, Director of UND Conflict Resolution Center); Rev. Laurie Natwick (trained mediator, pastor); Dan Dunn (lawyer/participant in mediations and arbitrations, summary jury trial); Jack Marcil (trained mediator); Rep. Kim Koppelman (legislator/business perspective).
Background of Supreme Court's adoption of Rules 8.8 and 8.9
Ms. Thiem began the formal discussion of the agenda items by describing the background and history of Rule 8.8 and 8.9. She said the Supreme Court, on its own initiative, had drafted the rules and submitted them to the SBAND ADR Committee. The Court held a hearing on the rules, where several people testified they were concerned the rules, by seeming to favor court settlement conferences over mediation could be a disincentive to the development of a sophisticated private mediation practice in the state. After the rule was adopted essentially as it was, Ms. Thiem said she met with the Court to discuss the issues. She assured the committee that its role was to evaluate the rules and to figure out what is the best system for North Dakota. The Chief Justice has also asked the committee to take on the issue of family courts and to consider the use of mediation in neglect and abuse cases. Ms. Thiem said our goal today is to decide what we need to do and where we need to focus our efforts. Mr. Marcil commented that Minnesota has a code of ethics, whereas North Dakota does not, so we will need to look at that issue in the near future. Ms. Paranica said there is a need to define what mediation is before we are in a position to determine ethical standards for mediators. She said that she and Larry Spain were in the process of preparing a law review article exploring these issues.
Mr. Gross said, based on his public policy work, he has a national perspective on ADR issues and on what is going on in the various states. In some states, he said, bar associations are opposing ADR programs. He cautioned there is a "lot of learning" going on, and said we should take our time in order to avoid the pitfalls that some states have encountered. Ms. Thiem agreed, stating that she had learned at a recent ADR conference in Washington, DC that very little about the issue of ADR is "accepted" or "established" at this time. She suggested the first thing we should concentrate on is establishing certification of training but, beyond that, we should proceed slowly.
Mr. Wilking shared Ms. Thiem's concern about the rules, as there seems to be some balkanization of the various districts in terms of implementation. Judge Christofferson expressed concerns about access to mediation for low income persons. He also said that he wanted to ensure that we do not create an "exclusive" system of mediators. Judge Christofferson said the judges who are interested in ADR have been dabbling in it, but that few have formal programs at this time. While there have not been any extensive formal training programs for the judges, he said, those judges who are interested in taking formal training programs have either done so or will be attending programs in the near future.
Judge Christofferson said the Council of Presiding Judges has not taken a position on implementation of Rule 8.8, but they have authorized the districts to enter into contracts with family law mediators to provide services to low income litigants. He was not sure if any such contracts have been entered into to date. Ms. Thiem said the Bar was probably not aware of the opportunity to enter into mediation contracts with the district courts.
Overview of rules and survey of current implementation of ADR programs
Ms. Thiem asked Ms. Hogan to present the key points of Rule 8.8 and 8.9 and to describe the current status of implementation of the rules in the various districts. Ms. Hogan presented a survey of the districts as set forth in the chart at attachment B in the meeting packets and in the handouts summarizing the key points of Rule 8.8 and 8.9. She described the status of implementation of the ADR statement as required in Rule 8.8 among the districts. The committee discussed that it was surprising to learn some district courts have determined the required informational ADR statements (Appendix F) do not apply for that district. Ms. Thiem said lawyers would be obliged to check each district to see what procedures will apply.
Judge Christofferson said the Supreme Court's ADR neutral roster has just come out in the last day or two. No one else on the committee was aware the roster was available. Ms. Thiem said that in Minnesota there is an application process for mediators and other ADR neutrals to be listed on the court roster. She asked the staff to find out what procedure the court administrator is using to prepare the Rule 8.9 roster of ADR neutrals.
The Committee discussed the variation in the districts regarding implementation of Rule 8.8. Judge Christofferson said there might be some reluctance among some judges due to lack of ADR training, lack of time, and lack of any line item authority for ADR compliance in the budget. After discussion, the committee suggested that one of our potential "recommendations for the improvement of ADR programs" as contemplated by Rule 43 might include recommending ADR training be offered to any judges who are interested in taking the training. The committee could also recommend ADR training for judges and other court employees be included in the Supreme Court budget.
In answer to a question as to what the committee's role ought to be with respect to enforcement of Rule 8.8 within the various districts, Ms. Thiem assured the committee they would have the power to recommend changes in the rules. Mr. Gross said that it would be better to go slow in order to avoid institutionalizing procedures that may not be optimal. Judge Christofferson agreed, saying that the court is looking for suggestions from our committee, but that we ought to allow the districts to develop some history with the new rules before recommending procedures or changes.
Committee identification of issues
After the lunch break, Ms. Thiem suggested that the committee keep the goal of the "big picture" in mind as it proceeds, and that the committee take its time with recommending rules and procedures. She then asked Dr. Antes and Ms. Paranica to give the committee a primer on the various forms of ADR.
Dr. Antes said there is a lot of usage of the word "mediation," but few people mean the same thing when they use the term. The differences between the forms of mediation, he said, relate primarily to the role of the mediator. Some forms hold that the mediator is in charge of the process. In evaluative mediation, the mediator renders an opinion of the strength of the case.
That is different from early neutral evaluation, which is a separate process from mediation. Early neutral evaluation does not involve negotiation, but only an evaluation, typically by an expert in the subject matter of the dispute.
Facilitative mediation was influenced by the book Getting to Yes, by Ury. The goal of the facilitative form of mediation, Dr. Antes said, is mutual satisfaction. The mediator helps people make decisions that will satisfy the needs they have identified in the negotiation. The mediator considers himself or herself an expert in the process.
Dr. Antes also described the various methods and procedures for handling facilitative and evaluative mediation, such as whether the parties meet separately or in caucus. Both evaluative and facilitative mediation share the goal of helping the parties reach settlement. The committee members discussed these processes in greater depth. Mr. Gross said that one of the goals of a consensus-building process is to build relationships for the long term rather than tearing them down. Mr. Dunn said that lawyers typically play a huge role in making the settlement process work.
Dr. Antes also described the transformative form of mediation, which starts out from a different basic premise about people and conflict than the other forms of mediation. The transformative mediator starts with the concept that people possess the capacity to resolve their own disputes. The mediator helps people recover from their disempowerment and become more aware of the other person's interests. The transformative mediator is constantly pointing out the decisions people can make to help them clarify their own interests as well as the other person's.
Ms. Paranica said that since there are all these forms of mediation available, it is incumbent upon the attorneys to understand them and to choose the appropriate method for their cases.
Ms. Thiem directed the committee's attention to Appendix F, the informational statement, and asked Dr. Antes to describe binding and nonbinding arbitration. The committee then walked through all the ADR choices on the statement. If someone were to check the "mediation" box, and also request that the ADR be conducted by a "judicial officer," Judge Christofferson said that, in his district, a party could only get a settlement conference, but not a mediation per se. He also said there would be no uniformity among the districts. Ms. Thiem said that lawyers are probably not aware that court-sponsored mediation is not available yet. In reality, the only thing that is available as of the date of this meeting is court-sponsored settlement conferences. Judge Christofferson said the ADR that is currently available is very district-specific and even city-specific. The committee concluded there is currently a lot of confusion for attorneys who are trying to comply with the new ADR rules.
Ms. Thiem asked Ms. Hogan to explain a proposal for addressing the continuing education requirements for ADR neutrals set forth in Rule 8.9. Ms. Hogan said the rule requires mediators to complete a certain number of hours of initial training as well as a certain number of hours of continuing training every three years after that. Rule 8.9 also requires neutrals to attend initial and continuing training programs that are "approved" by the Joint Alternative Dispute Resolution Committee. This requirement seems to call for our committee to develop rules for approving training programs. The rules also seem to require the committee to develop enforcement procedures comparable to the CLE reporting requirements for attorneys. At Ms. Thiem's request, Ms. Hogan said she would prepare draft rules for approving training programs for the committee's next meeting. These rules would be based on the CLE Commission's rules for approving CLE programs.
Ms. Thiem asked the committee members to draw lots to determine the length of their terms in accordance with Administrative Rule 43. The committee members also discussed possible dates for the next meeting and asked the staff to poll the members for workable dates for the next meeting. A list of the terms is attached.
There being no further business, the meeting was adjourned at 2 p.m.
SBAND Executive Director
Joint Alternative Dispute Resolution Committee
Rebecca Thiem, Bismarck, Chair 2002 Supreme Court Appointees
Dr. James Antes, Grand Forks 2003
Hon. Lee Christofferson, Devils Lake 2004
Daniel Dunn, Fargo 2004
Richard Gross, Bismarck 2004
Rep. Kim Koppelman, West Fargo 2004
Daniel Hovland, Bismarck 2003
Jack Marcil, Fargo 2003
Kristine Paranica, Grand Forks 2002
Leo Wilking, Fargo 2002
Rev. Laurie Natwick, Bismarck 2003