This summer the Maryland Court of Special Appeals created a division for Alternative Dispute Resolution processes that oversees the court’s prehearing conference and mediation programs.
In early 2010, Chief Judge Peter B. Krauser of the Court of Special Appeals (COSA) launched a pilot mediation program with the support of Maryland’s Mediation and Conflict Resolution Office (MACRO). And the mediation program is now a permanent part of the appellate process as authorized under MD Rules 8-205 and 8-206.
Mediation at the appellate level is provided in at least 41 state appellate courts in 26 states. The ADR division at COSA initiated a review of similar mediation programs around the country, and the results of that research have been very gratifying. At this juncture, the national research demonstrates that Maryland’s appellate mediation settlement rates are 15 to 35 percent above the national average, which range between 30 to 50 percent. More information about this national research will be available in the next few months. Preliminary results were presented in Washington, D.C. this spring at the American Bar Association’s Dispute Resolution Conference.
In the pilot mediation program’s first full year of operation (from February 1, 2010 to January 31, 2011), 130 appeals were ordered to mediation, representing approximately 10 percent of civil appeals filed. And out of the 130 appeals ordered to mediation, 65 percent were resolved.
Then, in the program’s second full year of operation, which concluded January 31, 2012, 187 appeals were ordered to mediation, representing approximately 15 percent of civil appeals filed. And out of the 187 appeals, 60 percent were resolved through the process, plus another five to eight percent are expected to come to full resolution post-mediation and prior to completion of the appellate process.
All of Maryland’s counties and Baltimore City have been represented in COSA mediations. The following represents the percentages of cases from various counties within the first two years of operating the mediation program:
- Allegany – .6 percent
- Anne Arundel – 8 percent
- Baltimore City – 11 percent
- Baltimore – 35 percent
- Calvert – .9 percent
- Caroline – .3 percent
- Carroll – 4 percent
- Cecil – 3 percentCharles – 2 percent
- Dorchester – .9 percent
- Frederick – 5 percent
- Garrett – 1 percent
- Harford – 3 percent
- Howard – 5 percent
- Kent – .9 percent
- Montgomery – 20 percent
- Prince George’s – 16 percent
- Queen Anne’s – 2 percent
- Saint Mary’s – .6 percent
- Somerset – .3 percent
- Talbot – .6 percent
- Washington – 1 percent
- Wicomico – 3 percent
- Worcester – 2 percent
Almost all of the approximate 1,300 civil appeals filed in COSA every year are screened for ADR (with exceptions being juvenile causes, guardianships, terminating parental rights, and applications and appeals by prisoners seeking relief relating to confinement or conditions of confinement). The cases selected are then ordered either to mediation or prehearing conference depending on the needs and desires of the parties to the appeal and the posture of the case.
In mediation, parties and their counsel work with two mediators – one court mediator and one judge-mediator – who assist the participants in reaching their own voluntary agreement for complete or partial resolution of the issues on appeal, in addition to any other issues relevant to the underlying dispute.
In prehearing conferences, parties and their counsel work with an incumbent or retired appellate judge to discuss the contents of the record and/or record extract, pending pre-hearing motions, scheduling matters related to the appeal, consolidation of appeals, and any other issue aimed at streamlining the appellate process.
Mala Malhotra-Ortiz, Esq., is the Director of ADR Programs at the Maryland Court of Special Appeals.