| ADReport |
Alternative
Dispute Resolution Section Newsletter |
| Volume Two, Number
Two |
Honorable
Melanie A. Vaughn, Chair
Mary Louise Preis, Editor
Jonathan S. Rosenthal, Co-Editor |
Your FEEDBACK, Part II -
Preliminary Motion & Quality Assurance
1. Preliminary Motion for Mediation – In the
last issue, a proposal for a Preliminary Motion for Mediation was published. In
summary the theory was that if such a motion existed, it would permit the
parties to attempt mediation early in the case. The motion could be filed either
with the Complaint or with a responsive pleading. Once the motion was filed,
other pleadings would be stayed until the conclusion of the mediation.
Theoretically, the mediation could be concluded within 60 days, and it may
dispose of the case. The proposal received several responses from you, our
section members.
One member suggested that pro se litigants, or
counsel, might file such a motion with the intent of delaying the case. This
respondent believed that although the article hoped the mediation could be
complete within 60 days, their perception was that by the time the motion was
filed, a response (or opposition) filed, a hearing held, the order signed, and
the mediator assigned, and the date set, more than 90 days would have passed.
Another section member noted that if the parties
go to mediation before discovery is completed, they may find themselves stopping
the mediation because all of the pertinent information had not yet been
exchanged. "Discovery is a valuable part of the process because it places
the part[ies] in equal power from the beginning and gives everyone the current
and complete facts before they come into the mediation," the response
concluded.
Finally, one response suggested that such a
motion should be called a "Motion for Referral to Alternative Dispute
Resolution," which would allow mediation, arbitration, med/arb, mini-trial,
collaborative lawyering or any ADR process. Mediation, they complained, is too
narrow.
2. Mediator Quality - The question of how to
assure mediator quality was also raised in the last issue. As many of you know,
the Maryland Mediation and Conflict Resolution Office (MACRO) has been working
on the issue of mediator quality for more than a year. This issue was one of the
few issues that was not resolved by the ADR Commission, but the goal of
continuing to explore it has survived to MACRO.
Currently there exists a Mediation Quality
Assurance Oversight Committee, which has representation of a variety of
stakeholder groups, including the Bar. The ADR Section of the MSBA is
represented on that committee by Jonathan Rosenthal, and Section Council members
Louise Phipps Senft and Roger Wolf also sit on that Committee, although they are
officially representing other stakeholder groups. Members of the ADR Section
were invited to a forum to discuss the issue on March 13th in Annapolis.
While that group continues it work, we asked our
members what they thought would help assuring mediator quality throughout the
state. We received the several responses, which included requiring uniform
trainings and regular updates at reasonable prices, and a statutory requirement
that all mediators in Maryland carry at least 500K in liability/malpractice
insurance. Another member suggested that certification was the appropriate way
to go, and in supporting that thought explained that "everyone who wants to
be called a mediator and get paid for their services should have a threshold
level of understanding, no matter what discipline they come from (i.e., law,
social work, psychology, clergy, etc.). Egads, you have to be certified to be a
kick boxer in MD, why not a mediator!? "
While you continue to think about this issue, if
you missed the forum on the March 13th, you can attend one or more of the four
additional forums that will be held around the state. You can also express your
opinions or concerns by calling Jonathan at MACRO at 410-321-2398, or writing
him at jonathan.rosenthal@courts.state.md.us.
The dates for the statewide forums are April 17th
on the eastern shore, May 1st in southern Maryland, May 15th in Western
Maryland, and May 29th in central Maryland. For more information on the
locations, please contact MACRO or Jonathan Rosenthal.
