The Best of Both Worlds
Can alternative dispute resolution fix Kentucky's courts?

In Kentucky and across the nation, courts and lawyers have been experimenting with a new option to clear court dockets and cut the average time many cases spend at trial. Alternative dispute resolution forces feuding parties to sit down at the same table and, with the help of trained mediators, reach an amicable agreement without the courts’ help.

Alternative dispute resolution, or ADR, takes various forms. The two most common are mediation and arbitration. Arbitration is a simplified version of a trial with fewer rules and no “discovery” process. Both sides choose an arbitrator – or, in some cases, an arbitration committee – and settle the dispute in a short hearing or mini-trial.

Meditation, the favored ADR process in Kentucky, is a less formal alternative to litigation in which trained negotiators bring opposing parties together and try to work out a settlement or agreement both parties can accept. If no agreement can be reached, the case can still return to court. Most cases, however, tend to settle, according to the Kentucky Court of Justice.

Not every case is ideal for ADR, particularly those requiring a ruling on a question of law, constitutional interpretation or domestic violence. But nearly all other disputes can be approached through resolution. Increasingly, disputing parties and lawyers are turning to mediation to close cases quickly, move on and resolve disputes more peacefully than often happens in court. Judges in many of Kentucky’s jurisdictions have authority to refer or order cases to mediation.

The Kentucky Supreme Court adopted mediation guidelines in 2000, and two years later, Chief Justice Joseph Lambert created the Department of Alternative Dispute Resolution Services, under the Administrative Office of the Courts, to promote and facilitate wider use of mediation. The state also periodically offers mediation training sessions around Kentucky.

Model Mediation Rules

The Kentucky Supreme Court has established the following set of guidelines for alternative dispute resolution. Some portions have been paraphrased.

Rule 1: Preamble and scope. If a court finds that mediation could provide an efficient and cost-effective alternative to traditional litigation and benefit all parties, litigants should participate in good faith and make an earnest attempt to resolve their differences. Though these guidelines refer to mediation, nothing prohibits parties from resolving disputes through other methods. However, in any case where one party may pose a risk of harm to another party or family member, mediation should not be used.

Rule 2: Mediation defined. Mediation is an informal process in which a neutral third person(s) called a mediator facilitates the resolution of a dispute between two or more parties. The process is designed to help disputing parties reach an agreement on the issues in dispute. Decision-making authority remains with the parties, not the mediator. The mediator assists in identifying issues, fostering joint problem solving and exploring settlement alternatives.

Rule 3: Referral of cases to mediation. At any time on its own motion or on motion of any party, the court may refer a case or portion of a case for mediation. In this decision, the court shall consider factors including the current stage of the litigation, the nature of the issues to be resolved, and the ability and willingness to of the parties to mutually resolve their dispute.

Rule 4: No stay of proceedings. Unless otherwise ordered by the court, mediation shall not stay any other proceedings.

Rule 5: Appointment of mediator. Within 15 days of referral, the parties shall agree on a mediator or a mediation service. If the parties cannot agree, they shall notify the court, which will select a mediator or a mediation service.

Rule 6: Mediator compensation. The mediator shall be compensated at the rate agreed between the mediator and the parties involved. If the court appoints a mediator, the fee for the mediator shall be no greater than the mediator’s standard rate as a mediator. Unless otherwise agreed by the parties or ordered by the court, the parties shall equally divide the mediator’s professional fees.

Rule 7: Mediation procedure. The mediator shall set an initial mediation conference within 30 days. The mediation conference shall be held in the county in which the case is pending or at a site agreed upon by the parties. The mediator may meet with the parties or their counsel prior to the mediation conference to establish a procedure for the mediation conference. The mediator may require the parties to submit a confidential statement of the case or other materials that the mediator deems reasonable.

Rule 8: Attendance at mediation conference. The parties – or a representative from the parties, in some cases – must attend the mediation conference. Counsel shall attend the mediation conference unless otherwise agreed to by the parties and the mediator or ordered by the court. If any party is insured for the claim in dispute, that party shall also be required to have its insurer present.

Rule 9: Completion or termination mediation. The mediator may terminate the mediation conference after a settlement is reached or when the mediator determines that continuing the process would be unproductive. After the initial mediation conference, mediation shall continue only by the agreement of the parties, their counsel and the mediator, or by order of the court.

Rule 10: Report to the court. The mediator shall report to the court that the mediation has not occurred, has not been completed, or that the mediation has been completed with or without an agreement on any or all issues. With the consent of the parties, the mediator may also identify those matters which, if resolved or completed, would facilitate the possibility of a settlement.

Rule 11: Agreement. If an agreement is reached during the mediation conference, it shall be reduced to writing and signed by the parties. The parties shall be responsible for the drafting of the agreement, although the mediator may assist in the drafting.

Rule 12: Confidentiality. Mediation sessions shall be closed to all persons other than the parties, their legal representatives, and other persons invited by the mediator with the consent of the parties. The sessions shall be regarded as settlement negotiations.

editorial@lanereport.com

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