Local ADR Programs

In an effort to encourage the use and expansion of mediation, the Office of the Executive Secretary awards contracts to mediators around the state to provide mediation services to the courts of Virginia free of cost. Mediation contracts have introduced mediation to the courts, encouraged judges to refer cases to a dispute resolution orientation session, provided no-cost mediation services to users of the court system, and compensated mediators for their invaluable services. Mediation Coordinator Contractors

The Conciliation Program is a service of the Fairfax Bar Association. It operates under the auspices and supervision of the Conciliation Subcommittee of the Association's Standing Committee on Professionalism. The program's conciliators are experienced litigators, with expertise in both civil litigation and family law. They have volunteered their services to help resolve motions and other preliminary disputes without charge to the parties in the case. The Conciliation Program is entirely voluntary. It aims to speed up the disposition of cases and reduce the cost of litigation by helping to resolve the types of procedural motions and interim matrimonial disputes which tend to burden the system and which frequently frustrate the judicial system's goal of providing a swift and fair determination of the parties' rights.

The types of disputes which the Conciliation Program can resolve include, but are not limited to, motions and petitions:

• in all civil discovery disputes;
• for visitation and emergency visitation orders;
• to modify scheduling orders (except continuances);
• seeking pendente lite relief; and
• in other matters, at the discretion of the court.

When conciliation is requested, trained conciliators meet with the interested parties. They listen carefully to each party's position and attempt to effect a resolution of the dispute by helping the parties develop realistic and satisfactory ways for the dispute to be resolved without further intervention by the court. All proceedings are informal and confidential. The conciliator's recommendations or suggestions are not binding upon the parties and are not disclosed to the court.

Conciliation is available to litigants before the Fairfax County Circuit Court. It is available whether or not the parties have counsel of their own. Conciliators do not give legal advice to either side of a dispute, and are neutral and impartial. They will, however, endeavor to do whatever is required to assist all parties to understand the real nature of the dispute. Once the dispute is clearly defined, the conciliator should be able, in most cases, to help the parties and their counsel develop ways in which the legitimate goals of each party can be achieved without the expense and uncertainty of further litigation. Conciliators are available to meet with the parties to conduct these conciliation sessions in person at the courthouse, or will conduct the sessions by phone for the convenience of all concerned.

A case may be designated for early conciliation by the judge assigned to hear the case on motions day. Typically these designations occur late on Tuesday or early on Wednesday of the week the motion is set to be heard. If a motion is designated for conciliation, the judge's law clerk will call counsel or pro se parties, following which a conciliator will be assigned to the motion who will then contact counsel and/or pro se parties to initiate conciliation.Since its inception in 1997, the Conciliation Program has aided the court, litigants and counsel in the resolution of hundreds of preliminary motions disputes. During a survey conducted in 1999, over 85% of cases conciliated resulted either in the resolution of the motion or in a significant narrowing of the issues needed to be heard by the court. The program has received very positive support from the court, the Fairfax Bar Association and practicing attorneys. It has received funding for its coordinator since 1999 from the Virginia Law Foundation.

Further information can be obtained on the Fairfax Bar Association's Web site www.fairfaxbar.org, by calling the Fairfax Bar Association at 703-246-2740, or by e-mail at [email protected].

In the past, the primary method of addressing the ever-growing caseload before the court was to add judges and staff. Today, Fairfax County Circuit Court, in addition to other courts across the nation, is addressing the problem through other means, such as the Neutral Case Evaluation (NCE) Program.

The NCE Program was established on May 20, 1993, as a method by which judges and experienced senior level attorneys, acting in the capacity of neutral case evaluators, attempt to settle law suits prior to trial, by means of settlement conferences. The primary goal of the NCE Program is to encourage resolution of cases at the settlement conference. In order to achieve this, all parties must go to the conference with full settlement authority. Another main goal is to clear the judges' dockets and relieve them of the sole responsibility for holding settlement conferences.

The focus of the program has been on personal injury cases; contract cases with liquidated damages, and medical and legal malpractice cases. The NCE Program began as a pilot program funded through a grant from the Supreme Court of Virginia. The program has been quite successful and has been instrumental in handling the heavy caseload in Fairfax County.

Settlement conference dates are assigned upon the request of counsel in the case. They generally take place approximately four weeks prior to the trial, allowing time for discovery and for further settlement discussion between the parties. Parties are made aware of the advantage of settlement and the reduced risk in which they are confronted. Through this program, litigants are provided with time to communicate their side of the case without the formality of court procedures, witnesses, and a jury. This form of communication is conducive to settlement and instills a feeling of just treatment within the parties involved. Currently, there are approximately seventy-five experienced attorneys who offer their services pro bono, to act as neutral case evaluators. It is their job to fairly assess the cases and to facilitate settlement in cases seeking monetary damages, such as contractual disputes and personal injury cases. Evaluators have substantial experience and may correct misconceptions the parties may have concerning the value of the case. They are able to provide an honest evaluation of the case's potential and estimate what a jury award may be. The evaluator has broad discretion in the manner in which the conference is conducted which is not governed by formal rules of evidence or examination. Generally, the NCE evaluator factors in:

• oral presentations by each party or counsel;
• identification of areas of agreement and stipulations;
• exploration of settlement options;
• estimates, where possible, of the range of damages and verdicts;
• development of an information-sharing or discovery plan to expedite settlement discussions; and
• a determination of what follow-up measures would contribute to case development or settlement.

To date, the program has been very successful. In fiscal year 1999, there were 1,071 cases referred to NCE conferences. Of those, 37.35% settled prior to conference, 9.52% settled during conference and 36.41% settled after the conference. Only 15% of the referred cases ended in a trial. In Fiscal Year 2000, approximately 800 cases were referred to NCE conferences; 54% settled prior to conference, while 9% settled in conference and another 28% settled after the conference. Only 8% of the cases referred to conference went to trial. Additional information about the Fairfax NCE program can be obtained by contacting the program's coordinator, Bonny L. Jones (703)-246-3301.

In 1999, in response to a burgeoning court docket and the growing awareness of alternative dispute resolution (ADR) techniques, the Fauquier County Bar Association in conjunction with the bench and the local non-profit Piedmont Dispute Resolution Center (PDRC) established a Neutral Case Evaluation (NCE) program for the early settlement of personal injury, tort, and contract cases. Equitable Distribution cases were added one year later.

Fauquier County Circuit Court's Neutral Case Evaluation Program uses experienced attorneys specially trained in NCE techniques who meet with parties and their counsel in a confidential settlement conference. Acting as neutral facilitators, they listen to each side's presentation of the case, evaluate the strengths and weaknesses of the case, identify areas of agreement, and render an advisory opinion on factual legal issues, as well as damages. In many cases, they assist parties and their counsel in further settlement negotiations. NCE conferences are conducted at the courthouse, usually in an empty courtroom.

The program was initially funded for three years by Virginia Law Foundation grants awarded to the Piedmont Dispute Resolution Center. PDRC was responsible for program design, administration, and the recruitment, training, and scheduling of NCE facilitators. PDRC staff also reviewed court files and recommended cases to the judge for referral into the program. In addition to working closely with the judge, the Center was assisted by the Fauquier Bar Ad Hoc NCE Committee. Training initially came from NCE attorneys from the Fairfax County Bar Association after whose program Fauquier's was designed.

In 2002, its final grant funded year, administration of the program was transferred to the court and the judge's law clerk. The program remains strong and an asset to the court, litigants, and counsel. While Neutral Case Evaluation has been successful in larger jurisdictions, this is the first program developed in a mid-sized jurisdiction and serves as a model for other mid to small-sized jurisdictions in the Commonwealth. PDRC has developed a program implementation manual for statewide distribution. To receive a copy, call the Center at (540) 347-6650.

In an effort to expand dispute resolution options for litigants, the judicial system has developed a unique Judicial Settlement Conference program for Circuit Court cases that combines aspects of facilitative mediation with judicial settlement techniques.

Restorative Justice emphasizes one fundamental fact: Crime damages people, communities, and relationships. If crime is about harm, then the justice process should emphasize repairing the harm. As a vision for juvenile justice reform, restorative justice suggests that the response to youth crime must strike a balance among the needs of victims, offenders, and communities, encouraging each to be actively involved to the greatest extent possible in the justice process.

In a restorative justice conference, an offending youth, his or her victim, and supporters of both the offender and the victim are brought together in a confidential setting with a trained facilitator to discuss the incident and the harm it has brought to the victims and the groups of supporters. The conference provides an opportunity for victims to explain how they have been harmed and to question offending youth. Supporters also have an opportunity to describe how they have been affected by the incident. At the end of the conference, the participants reach an agreement on how the youth can make amends to the victim and they sign a reparation agreement. The agreement typically includes an apology and it often includes a requirement that some type of restitution be made to the victim.

In 1997, Fauquier County Juvenile and Domestic Relations District Court partnered with the local non-profit Piedmont Dispute Resolution Center (PDRC) to establish a new way of thinking about and responding to juvenile crime. Other collaborating agencies include the public schools, sheriff's office, town and state police, juvenile probation, the commonwealth's attorney, Mothers Against Drunk Driving, Alcoholics Anonymous, fire and rescue services, and business and citizengroups. PDRC received grant seed money from the Community Service Foundation in Bethlehem, Pennsylvania for 1½ years.

Since 1999, the successful program has been funded by a five-year Juvenile Justice Delinquency Prevention Title II grant administered by the Virginia Department of Criminal Justice Services (DCJS). Under this grant, cases were initially referred by the judge as a post-dispositional or suspension-of-disposition option. Later, diversion cases were added and received from law enforcement and school resource officers. The program has responded to over 450 referrals. Recidivism rates in Fauquier County for first-time and second-time offenders dropped from 45% before the program was instituted, to 5%. The national recidivism rate for first time offenders is 80%.

In October of 1997, the Prince William County Department of Criminal Justice Services (DCJS) conducted a one-day Restorative Justice Workshop. The Prince William County Restorative Justice Working Committee was formed and Dotty Larson of the Prince William County Office of Dispute Resolution (ODR) was appointed chairperson of this committee.

In May of 1998, DCJS and ODR wrote and were awarded a $6,000 grant for REAL Justice training. REAL Justice is one model of Community Accountability Conferencing that has been used successfully in New Zealand, Australia and, now, in the United States. ODR signed a contract with REAL Justice promising to conduct the conferences according to their guidelines. Volunteers were recruited, interviewed, and trained, with the process being completed in October 1998.

ODR wrote and was awarded a $5,000 grant for technical equipment. A 20-inch TV/VCR, TV stand, overhead projector, video camera, tape and tripod, computer and printer were purchased with the grant monies.

ODR wrote and was granted a $35,000 grant in 1998 from the Virginia Department of Criminal Justice Services for the hiring of a coordinator, office supplies, phone expenses, postage expenses, and additional training for the coordinator. This was a five-year declining grant with funds beginning to decline after the third year. The Restorative Justice program was fully funded in June of 2001 by Prince William County as a full-time program of the circuit court, Office of Dispute Resolution.

Recidivism of participants in this program returning to court remains at around 11%. (The national average for juveniles going through the traditional justice system is 80% according to the U.S. Dept. of Justice 11/2000).

For more information on the Restorative Justice Association of Virginia, contact: Lawrie Parker, President, 540-347-6650, [email protected].