By: Tracy Johnson
In 1993, court-ordered mediation was shrouded with mystery and skepticism. Most of those in Georgia, particularly outside of the legal field, had never heard the term Alternative Dispute Resolution (ADR). Nearly 20 years prior, the late Harvard Law School professor and ADR pioneer Frank E.A. Sander described his idea of a more efficient means to resolve legal disputes, later coined the multi-door courthouse concept, to a group of attendees at the 1976 Pound Conference. This idea was to tailor the judicial system in a way that better met the needs of the citizens. As Gladys Kessler and Linda J. Finkelstein described, “It was also hoped that citizens would benefit from resolution techniques, which encourage litigants to design their own agreements, as well as benefiting from early assessment and evaluation of cases, accelerated case processing, and processes that were less formal and more comprehensible than litigation. Litigants might be able to resolve disputes with less expense, more satisfaction, and less acrimony if alternatives were available to the adversarial process.”(1988)1.
Griffin B. Bell, native Georgian, U.S. attorney general, U.S. appellate court judge, and partner at the King & Spalding law firm witnessed Sander’s speech first hand at the Pound Conference and was determined to begin laying the initial groundwork in bringing ADR to Georgia. In time, the bench witnessed the transformative ways in which mediation, arbitration, and early neutral evaluation could provide litigants and the courts more efficient means to ascertain collaborative problem solving.
At the direction of Chief Justice Harold G. Clarke, the Supreme Court and the State Bar of Georgia together formed in 1990 the Joint Commission on Alternative Dispute Resolution to explore the feasibility of promoting ADR within the judiciary. As result of the countless hours of both public servants and community stakeholders, the Georgia Supreme Court created the Commission on Dispute Resolution and the Office of Dispute Resolution.
This year, on the Commission’s 25th anniversary, the State of Georgia boasts over 40 individual court ADR programs, serving 93 of its 159 counties. For counties wherein there is no formalized ADR Program, judges are still referring cases at either the discretion of the court or by request from the attorneys and/or parties. Mediation is now a layman term, with reach in common households and in media (though sometimes inaccurately portrayed) that mark the growth of the ADR field. On average, data collected from the court programs show that ADR currently resolves 60% of all referred cases. While timing of the process varies, layering opportunities for dispute resolution provides parties with more access and better tools to resolve their own dispute.
While most courts have embraced the use of ADR and are providing litigants with an improved forum for dispute resolution, courts are now turning their attention to ways of providing citizens with more meaningful access to justice. For many, appearing in court could mean an entire day off work, need for child care, costs for travel and parking, and undue stress and aggravation. So how does a court balance the needs of the courthouse patrons with effective and efficient case management? Some are answering the call with an emerging process called Online Dispute Resolution (ODR).
ODR is not the same as ADR and may or may not involve a neutral third party. It is also not a replacement for ADR, but the two processes can serve in tandem to provide litigants with additional opportunities to resolve disputes. Major companies, such as eBay, have been utilizing ODR for years to mediate disputes between parties such as buyers and sellers. Additionally, while technological advancements have been slower in the judicial field, generations old and young are already accustomed to the benefits of technology. We bank, shop, visit grocers, and primarily communicate through various means of online platforms.
ODR is not for every case but could serve as another means to free up scarce court resources that can be reserved for more complex cases. Any court looking to either start an ADR Program or improve current services offered, including the addition of ODR, should contact the Georgia Office of Dispute Resolution www.godr.org.
1 Kessler, G. and Finkelstein, L.J. (1988). The Evolution of a Multi-Door Courthouse. Catholic University Law Review, 37(3), 577-578.