PRINCIPALES PROGRAMAS PARA EL DESARROLLO DEL PENSAMIENTO: CARACTERÍSTICAS

in the US. In this section, we would highlight some similarities and conflicts (if any) in these models. This analysis will be done under the following headings: mode of commencement of the programs, relationship with existing statutes and civil procedure rules, type of programme offered i.e. whether voluntary or mandatory or both; types of cases dealt with, array of ADR options offered, relationship to the Courts (i.e. in terms of reporting, cost shifting, the time of payment of fees, neutrals, time of referral; level of supervision) as well as the status and enforcement of ADR settlement agreements.

Commencement of programmes - One common feature in respect of how the Federal and State Courts integrated ADR into the court system in the US is the use of pilot programmes.

In the case of the Federal Courts, it started with one pilot Scheme then increased to ten. The pilot programmes were then evaluated and the findings led to amendments in the existing

541 Rosenberg and Folberg, op cit, p.1488-1489

542 Bingham, L.B., and Wise, C.R. (July, 1996) The Administrative Dispute Resolution Act of 1990: How Do We Evaluate Its Success? Journal of Public Administration Research and Theory. Vol. 6, No. 3 pp. 383-:

http://www.jstor.org/stable/1181666 .Accessed: 04/12/2011 13:21.

legislation and Civil Procedure Rules to accommodate the results of the testing process. State courts followed the same process, usually trying out a pilot or demonstration programme in one court first before adopting same state-wide with appropriate legislation and amendment to the existing Civil Procedure Rules (CPR).

Relationship with Extant Legislation - Another common feature of the US models is the fact that CCADR programmes were integrated through amendments of existing CPR. Such amendments encouraged and empowered the courts to refer and order matters to ADR especially mediation. The CPR therefore in all cases formed the bedrock and catalyst of the court connected programmes in terms of administrative and supervisory structure. Separate ADR specific rules were put in place to guide how cases could be referred to ADR by the courts, the time frames for conduct of such processes, consequence of refusal to explore ADR, the types to ADR process to be offered by the Court and who would conduct the process.

Type of Programmes Offered - The Federal Courts began by offering mandatory non-binding court annexed arbitration before a trial could be requested. Depending on the range of monetary damages which could sometimes be between $50,000 and $150,000 maximum, parties were mandated to explore non-binding arbitration. In the State Courts, the emphasis was on ‘mandatory’ mediation. Parties were by default, depending also on the range of monetary damages claimed, referred to mediation. A process common to both the Federal and State mandatory programmes was the ‘Opt Out’ procedure. Parties who were mandated to arbitrate or mediate could ‘opt’ out of the process on grounds specified in the relevant Rules.

Relationship with the Courts - This will be discussed in terms of reporting, costs, neutrals, time of referral, and the level of supervision exercised by the courts over their programmes.

(i) Reporting: - In the US CCADR schemes, when courts refer matters to ADR, the rules provide in some cases that where settlement fails, the neutral should make a report on the file on why ‘things fell apart.’ In other cases, the neutral is only required to note on the case file that settlement could not be reached without giving reasons. The latter was to avoid any bias when the matter went to trial.

(ii) Costs: - One major area of divergence concerning ADR programmes offered in Courts is the issue of who bears the cost of the ADR process. These costs include administrative fees as well as the cost of the neutral facilitating the process. In the Federal district Courts, during

the pilot programmes, the neutrals were usually volunteers and so no fees were paid. The same is true of courts till date that use volunteer neutrals. Where however the ADR processes are undertaken by professionals who were certified by the Court, their fees had to be paid. In the majority of the cases, the parties had to pay the neutrals fees except in small claims. In such cases, the courts fixed a pro rata fee payable to the neutrals depending on the amount of damages involved. In other courts, the court pay in full or a part of the neutrals fee for conducting the ADR sessions.

There is also the issue of cost-shifting i.e. where a party has unreasonably refused to explore amicable settlement, even when he is victorious at the trial, the courts may refuse to award any costs or reduced courts if in its opinion, the result obtained at the trial could have been reached through an ADR procedure.

(iii) Neutrals: - There are at least four different options observed in the US programs: the courts ask for volunteers to conduct the ADR session in their court annexed programme or in some cases the court pays a token on a pro rata basis to the volunteers. In other programs, the Judges are themselves trained as ADR professionals and are involved directly in conducting the ADR processes. In such cases if there is no settlement a different Judge conducts the trial.

In yet other schemes, the courts maintain a roster of accredited neutrals and parties who are referred to ADR may appoint to anyone on the roster to facilitate resolution of their dispute.

Usually, in these cases, parties themselves bear the cost of the neutral’s fees often based on a pro rata fee schedule fixed by the Court.

(iv) Time of Referral:- Both the Federal and State Courts all encourage parties to explore ADR before trial. In most courts it is a perquisite to requesting for trial. The CPR also provides for Judges to order or refer matters pending in their courts to an appropriate ADR process that the Court deems suitable. This of course is also before trial commences. Nothing in the Federal or State rules provide for referral to ADR after trial has commenced even through in the litigation process, parties are free to settle out of Court and file their terms as consent judgment of the court.

(v) Level of Supervision - The level of supervision exercised by the courts over the ADR processes both in the Federal and State Courts are minimal. The type of supervision also differs. In Courts where mediation is the default process, the main concern of the courts is usually to ensure that the mediators are suitably accredited – once thus is ascertained and such mediator is added to the Court roster, the conduct of the ADR process itself is left

completely to his discretion and control. This is also true for neutral evaluators. The courts also conduct evaluations of their programmes in order to determine the effectiveness of the neutrals as well as the process either through commissioned investigators or using feedback forms.

Types of Cases Facilitated - Only Civil cases are referred to Alternative Dispute Resolution.

In the case of the Federal Cases, Civil claims which involve constitutional issues or fundamental rights of citizens were statutorily exempted. In State courts, these matters are also exempted in practice. Both the Federal and State Courts also adopt or use the range of the amount claimed in the suit as a criteria or factor for determining whether or not to refer a matter to ADR. This gives the wrong impression that complex cases involving huge sums of money are not suitable for ADR. This may however be misleading as can be seen from international trade and commercial disputes involving millions of dollars that have been successfully mediated or resolved by or arbitration.

ADR Options Offered - Not every court can afford to make available all the available spectra of ADR in its annexed programme. In the Federal pilot programmes arbitration was offered while in the state programmes mediation was the default option. Most Courts however offered at least three options i.e. Neutral Evaluation, Mediation and Non-binding arbitration.

Status and Enforcement of ADR Settlement Agreements - Most of the Court annexed programs in the US emphasise that any settlement reached through ADR is a contract between the parties simpliciter. The Rules however provide, especially for mediated settlement agreements that the parties may request that their agreement be made the judgment of the court. In such cases, parties who exercise such option would usually be taken before the relevant Judge who is free to question them in order for the court to ascertain that parties voluntarily entered into the agreement. Where the court is satisfied about the voluntariness of the agreement, it enters same as the judgment of the court. Thereafter the agreement is enforceable like any other judgment of the regular court.