The state Judicial Branch has revamped its court-sponsored alternative dispute resolution program with new online tools and an expanded list of participating judges.
The hope is that more litigants will be able to resolve their cases more quickly through mediation.
Superior Court Judge Linda K. Lager, the chief administrative judge for the civil division, said the idea to expand and enhance court-sponsored ADR started a few years ago. More litigants in civil cases were showing up in court seeking the experienced advice of judges who could help them reach a settlement.
To respond to the growing need, the Commission on Civil Court Alternative Dispute Resolution was formed in 2010 by Chief Justice Chase Rogers. Lager, who chaired the commission, said she and the 15 other members were mindful of the fact that several Superior Court judges had opted to leave the bench to be private mediators.
"The need is there," Lager said. "The goal of the Judicial Branch is to provide timely resolution of civil disputes." Making it easier to use ADR is a good way to do that.
As a result of recommendations the commission made in 2011, the court-sponsored mediation program has a new name, a new website and a new online scheduling process. What was once called the Court Annexed Mediation program, or CAM, is now called Judicial-ADR. The program is limited to civil, non-family court cases.
Under the old system, attorneys were required to fax a request for a mediation session through the Judicial Branch’s central office.
When the Judicial Branch first created its ADR program in 1996, only a handful of senior judges and judge trial referees were available for mediations.
In recent years, Lager said, the demand has grown for active judges who had specific expertise in determining the value of civil claims. At the same time, law firms began expanding their arbitration and mediation practices.
Both court-sponsored and private mediation gained popularity because they sped up the resolution of civil cases. There were added benefits for the parties, Lager said, including lower costs compared to jury trials. The matters can also be resolved in a more confidential manner than at trial.
In court-sponsored mediation or arbitration, the attorneys were always allowed to request a particular judge. But it used to take weeks or longer to arrange those sessions, because a court administrator had to get involved to give official clearance.
At the same time, private mediations were getting faster to arrange and complete because more law firms were offering those services. The new Judicial Branch set-up cuts out the middleman.
The Judicial Branch has also taken steps to include more judges in mediations. The branch’s website now provides an expanded list of the judges who have volunteered.
Under the new system, the arbitration or mediation meetings can be scheduled directly with the judges through an online application form. The attorneys are able to fill out the required form online, pick up to three judges they prefer, provide a brief description of the case and await a hearing date.
Lager said that by making more judges available, the process will move more efficiently. After all, she said, "all of the judges have their own dockets" to run, in addition to handling mediations.
The civil court administrators have been working for the past couple of years to reduce the number of civil cases that are lingering on docket. A combination of docket management, the assignment of more judges to the civil division and the creation of a complex litigation docket has resulted in a 50 percent drop in the number of cases awaiting trial. ADR is another important component of that, Lager said.
Private ADR has been a growth industry in recent years. In addition to the speed of resolution, relatively low cost compared to traditional litigation and relaxed rules of evidence, parties can select a decision-maker who has experience in a particular legal subject matter.
In recent years, two of the Superior Court judges requested for arbitration and mediation cases were Jonathan E. Silbert and Robert L. Holzberg. Both left the bench last year to establish private mediation practices.
Holzberg’s skill at helping attorneys determine the dollar amount that a particular claim was worth got him noticed when he was a judge. While assigned a civil docket at the Middletown Judicial District, Holzberg was selected to negotiate dozens of settlements, including those for the Kleen Energy gas explosion and the St. Francis Hospital child sex abuse scandal.
Since September, Holzberg has been a partner at Pullman & Comley and chair of its ADR practice group. He’s observed several differences between public and private ADR.
First of all, there’s the pace. "In private ADR, we are available on much shorter notice and for a longer amount of time," he said. When he handled a busy civil docket and presided over mediations as a judge, the longest amount of time he could give a mediation case was a day or two.
"Now," he said. "It’s not unusual for me to be booked for a number of days" for one case. By way of example, he said, he recently took five days to mediate a medical malpractice case. "Both parties agreed it was more efficient to do that than to go through jury selection and a multi-day trial," he said.
The other key difference, he said, is that judges can seek an out-of-court resolution, but are barred from showing a preference for a specific outcome and can’t urge parties to avoid a trial. "It’s an essential right to have the right to a jury trial preserved," Herzberg said. All judges who serve as arbitrators have to be "acutely aware" of that right.
In contrast, he said, private arbitrators can advocate for a specific result they deem to be fair to the parties, and can "be more responsive to the needs of the players involved."
Daniel Blinn, the managing partner of the Consumer Law Group in Rocky Hill, represents consumers who feel wronged by abusive debt collectors or cheated by used-car dealers.
Blinn frequently turns to the court to help mediate his cases to a settlement. The traditional method was through settlement conferences that were conducted by presiding judges. He is looking forward to trying the new web-based ADR system.
He notes that while the court-sponsored ADR is free, a private mediator can cost $10,000 or more.
"A lot of parties can’t afford private mediation," he said. "I represent consumers, many of whom don’t have the funds to pay a private mediator," so having ADR that works through the Judicial Branch is critical. "And the judicial branch is happy to have the cases removed from the docket."•
Visit the state Judicial Branch’s new Judicial-ADR site at www.jud.ct.gov/external/super/ altdisp.htm