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.