Dispute Resolution Services

In an effort to assist Virginia’s courts to anticipate and prepare for the challenges and opportunities of the twenty-first century, in 1987 Chief Justice Harry L. Carrico appointed a 34-member Commission on the Future of Virginia’s Judicial System. The Commission’s charge was to develop a “vision” for an effectively functioning justice system, which would meet the changing needs of the citizens of the Commonwealth.

In its report issued in the spring of 1989, the Futures Commission articulated ten major “visions” or recommendations for the judicial system to continue meeting its core mission – the just resolution of disputes. The Commission acknowledged that new emphasis would be placed on the methods of dispute resolution and that the mechanisms used must seek to resolve the dispute, not simply to decide the case. The essence of “Vision Three” of the Futures Commission Report is the recognition that in order to offer the most effective, responsive, and appropriate methods for resolving disputes, the justice system must offer alternative dispute resolution programs along with adjudication.

The judicial system, by offering an array of dispute resolution options, would enable parties to select a process that best meets the needs of their case. Adjudication would no longer be presumed to be the most appropriate forum for resolving all disputes. These new methods of dispute resolution would enable parties to deal with the underlying issues in dispute. In addition, these processes have the advantage of providing parties with the opportunity to reduce hostility, regain a sense of control, gain acceptance of the outcome, resolve conflict in a peaceful manner, and achieve a greater sense of justice in each individual case.

During the 2002 Session of the General Assembly of Virginia, House Bill No. 818 was passed to amend and reenact § 8.01-576.4 et. seq. and 8.01-581.2 et. seq. of the Virginia Code regarding mediation. Substantively, these revisions primarily relate to confidentiality and immunity issues. See Legislation for the complete Dispute Resolutions Proceedings Statute.

To facilitate the development of alternative methods for resolving disputes as described in Vision Three of the Futures Commission Report, the Futures Commission recommended that an office be created within the administrative arm of the court system. The Department of Dispute Resolution Services was developed within the Office of the Executive Secretary in April 1991. Dispute Resolution Services, now a division of the Department of Judicial Services, serves as a centralized alternative dispute resolution resource office within the judicial branch.

The goals of Dispute Resolution Services include:

• to develop within the judicial system a range of options that provides the capability of resolving disputes in a manner most effective for the dispute involved;
• to encourage the creation of alternative dispute resolution programs by community providers;
• to encourage and promote the use of alternative dispute resolution in all judicial circuits and to investigate funding sources for such programs;
• to serve as a clearinghouse for information on alternative dispute resolution programs and activities and maintain a library of dispute resolution resource material;
• to develop, where appropriate, and evaluate experimental or pilot alternative dispute resolution programs,
• to identify alternative dispute resolution resources around the state and maintain a productive, working relationship with these programs, as well as to serve as a source of referrals to qualified providers;
• to provide materials and assistance in improving public understanding of alternative dispute resolution programs;
• to provide training and education programs to alternative dispute resolution practitioners, court personnel, law enforcement personnel, businesses, students, members of the bar, judges, and the general public;
• to evaluate the effectiveness of state-sponsored alternative dispute resolution programs in terms of cost-effectiveness and timeliness relative to traditional adjudication;
• to determine to what extent the use of alternative dispute resolution programs may reduce the civil workload of Virginia courts;
• to support the introduction of conflict resolution education in the public school curriculum and the development of peer mediation programs;
• to develop legislative initiatives to support the implementation and furtherance of alternative dispute resolution programs; and
• to develop a working relationship with all statewide programs as well as national organizations that provide research and information on alternative dispute resolution.

The Futures Commission conceptualized the various dispute resolution options as lying along a continuum, with those processes which are least formal and include the most party control over the outcome at one end, and those processes which are the most formal and include a third party decision-maker at the other end:

• conciliation
• mediation
• early neutral evaluation
• summary jury trial
• arbitration
• settlement conference
• adjudication

Because dispute resolution is an emerging field, innovation may lead to the development of additional options over time. Of course, the parties always have the option of negotiating directly with each other or through representatives, such as their lawyers.

The Division of Dispute Resolution Services of the Office of the Executive Secretary of the Supreme Court of Virginia has supported court-annexed mediation. What began as a recommendation of the Commission on the Future of Virginia’s Judicial System in 1989 that the court system should provide litigants access to an array of dispute resolution options has today become a reality in many sections of the state through education of the bench and bar, state funding, enabling legislation, and judicial support. Mediation, early neutral evaluation, Judicial Settlement Conference and conciliation are now available in many courts across the Commonwealth fulfilling the vision of a “multi-door courthouse” articulated by Harvard Law Professor Frank Sander in 1976. There has also been a proliferation of ADR coordination, innovation and services provided by certified neutrals facilitated by joint ventures between the courts and community mediation programs. Given the tremendous growth of the field of alternative dispute resolution in all cases at all levels of court, it is imperative that judges and lawyers have a greater awareness and understanding of the mediation process and the key role attorneys and courts play in that process. Every case involves at least two major tasks: determining the substantive law applicable to the facts of a case and choosing a dispute resolution process that is best suited for the case. Lawyers are trained to accept litigation as the standard process for resolving disputes without necessarily focusing on the strengths and weaknesses of litigation as only one of the many processes available to resolve disputes. However, research has shown that issues of process may be as important as the substantive matters in determining whether the final result for the client is the best attainable.

Images in the press and popular culture, as well as the focus in law school curricula on the importance of court decisions, convey the impression that a court is the only forum for resolving disputes. This may affect a lawyer’s consideration of the spectrum of processes available to resolve client disputes. Most professionals are inclined to use the process they are most familiar with and for which they have exclusive control. As a result, litigation is presumed to be the best method of dispute resolution. For attorneys, litigation is the first place to start in the study of alternative processes. Only after understanding the limitations and advantages of litigation can mediation be appreciated.

The public’s perception of resolving a dispute through traditional adjudication is that the time and expense involved is overwhelming. Disputants have become frustrated with long court delays and discovery processes, the complexity of the law, and the unproductive use of their resources. At the same time, some studies of the litigation process reveal that trials are becoming increasingly rare and most cases conclude through settlement negotiations. The courts serve as a background for bargaining between the parties and their lawyers.

In resolving a dispute, a court most often relies on the use of objective rules and laws. Given the complexity of a dispute and the infinite number of elements and variables, the court will select what is relevant and place the dispute in a pre-existing category, such as breach of contract. The appropriate rule governing the category is then applied. Courts rarely consider the personal characteristics of the disputants, the nature of the relationship, the long-term interests, or what the parties consider critical to the dispute. The lawyers and judge participate primarily in the resolution of the dispute as opposed to the parties who are the owners of the dispute.

A consequence of the judicial model is that the solution may not be well adapted to the parties’ needs and interests. The range of remedies available to the court is limited. An apology or acknowledgment of fault may not be awarded. The court is not in a position to try to salvage a relationship, whether it is commercial or domestic. The court’s decision is also binary in nature, one is right and one is wrong. This polarizes the parties, creates the need for self-justification and escalates the dispute into an emotionally charged process.

It must be recognized, however, that the importance given to the litigation process is well deserved. Adjudication does offer choice of representation, trial by jury, the opportunity to establish precedent, the opportunity to hold those who violate public norms accountable for doing so, basic fairness, a relatively level playing field, and some measure of predictability through precedent. By supplementing court adjudication with appropriate dispute resolution processes, parties can resolve conflicts more creatively and effectively.

Alternative dispute resolution offers efficiency and can enhance the quality of dispute resolution by permitting a wider array of outcomes and more client participation. The national trend has been for parties to become interested in resolving disputes on terms which they have agreed to as opposed to leaving the decision to a jury and/or judge who does not know the parties or understand the issues as well as the parties do. Clients have begun to demand that their attorneys pay attention to process issues as well as substantive issues, and now expect their lawyers to be knowledgeable about the full range of dispute resolution options.

• Judicial Settlement Conference Program
• Mediation
• Parent Education

• Fall 2023, Volume 1, Issue 3
• Summer 2023, Volume 1, Issue 2
• Spring 2023, Volume 1, Issue 1