Dispute Resolution Services

In 1987 Chief Justice Harry L. Carrico appointed a 34-member Commission on the Future of Virginia’s Judicial System charged with developing a “vision” for an effective justice system to 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 methods of dispute resolution that seek to not simply decide the case but to resolve the dispute. 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 (ADR) programs along with adjudication.

The judicial system, by offering an array of dispute resolution options, would no longer presume adjudication to be the most appropriate forum for resolving all disputes. These new methods would enable parties to select a process to deal with the underlying issues in dispute and that best meets the needs of their case.  The advantage of these processes to parties is an 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.

 For the complete Dispute Resolutions Proceedings Statute, see Chapter 20.2 of the Virginia Code and § 8.01-576.4 for Scope and Definitions with respect to mediation. 

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

The goals include:

• to develop within the judicial system a range of options to resolve disputes in the most effective  manner; 
• to encourage the creation of ADR programs by community providers;
• to promote the use of ADR in all judicial circuits and to investigate sources to fund such programs;
• to serve as a clearinghouse for information on ADR programs and activities;
• to develop and evaluate experimental or pilot ADR programs,
• to identify ADR resources around the state, maintain a productive relationship with these programs, and  serve as a source of referrals to qualified providers;
• to provide and approve ADR training and education programs to practitioners, court personnel, law enforcement personnel, businesses, students, members of the bar, judges, and the general public;
• to evaluate the effectiveness of state-sponsored ADR programs in terms of costs and timeliness relative to traditional adjudication;
• to determine to what extent ADR programs may reduce the civil workload of Virginia courts;
• to develop legislative initiatives to support the implementation of ADR programs; and
• to develop a working relationship with all statewide programs and national organizations that provide research and information on alternative dispute resolution.

While parties always have the option of negotiating directly with each other or through representatives, such as their lawyers, the Futures Commission conceptualized a spectrum of dispute resolution processes along a continuum. To the left side are the least formal processes with the most party control over the outcome; toward the right, the processes are more formal and include a third-party decision-maker:

+ Conciliation

+ Mediation

+ Early neutral evaluation

+ Settlement conference

+ Summary jury trial

+ Arbitration

+ Adjudication

DRS supports three core programs: court-annexed mediation, judicial settlement conference, and parent education. It also supports the proliferation of ADR services provided by certified neutrals and facilitated by joint ventures between the courts and community mediation programs. The vision of a “multi-door courthouse” articulated by Harvard Law Professor Frank Sander in 1976 is being fulfilled in the Commonwealth. Given the tremendous growth of the field of ADR in cases at all levels of court, it is imperative that judges and lawyers have a greater awareness and understanding of the key role each can play in the mediation process. 

Images in popular culture, and the focus in law school curricula on the importance of court decisions, conveys an impression that a court is the only forum to resolve disputes. For attorneys, litigation is presumed to be the best method since it is the process they are most familiar with and for which they have exclusive control. They are not necessarily focusing on the strengths and weaknesses of litigation as only one of many processes available to reach resolution. It is only after understanding its limitations and contextualizing its advantages that mediation is appreciated.

All cases present two major tasks for legal professionals: to determine the substantive law applicable to the facts of a case, and to choose the best dispute resolution process suitable for the case. Research has shown that process issues may be as important as the substantive matters if the final deliberated result is to be the best attainable for the client.

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

The reason is because to resolve a dispute, a court relies on the use of objective rules and laws. Given the complexity, and nearly 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. In contrast to a mediated dispute, 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 matter. The lawyers and the judge then become the chief participants in the resolution of the dispute as opposed to the parties who are the owners of the dispute.

Since the range of remedies available to the court is limited, a problematic consequence of the judicial model is that the solution may not be well adapted to the parties’ needs and interests. It is not well positioned to try to salvage a relationship, whether it is commercial or domestic. An apology or acknowledgment of fault may not be awarded. The court’s decision is also binary in nature, with one party being right and the other wrong. This can polarize the parties and feed a need for self-justification that can escalate the dispute into an emotionally charged process.

Despite its limits, the litigation process is important. Adjudication offers the choice of representation, trial by jury, the opportunity to establish precedent, 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.

The national trend verifies that ADR offers efficiency and can enhance the quality of dispute resolution by permitting a wider array of outcomes and increased client participation and satisfaction.  Parties can resolve disputes on terms they mutually agree upon as opposed to leaving the decision to a jury and/or judge who does not know the parties or understand the issues as well. Access to justice, as envisioned by the Futures Commission, demands that attorneys pay attention to process issues as well as substantive issues, and to be knowledgeable about the full range of dispute resolution options.

• Judicial Settlement Conference Program
• Mediation
• Parent Education