Members Present: Rebecca Thiem, Chair; Dr. James Antes; Dan Dunn; Richard Gross; Jack Marcil; Kristine Paranica; Leo Wilking; Hon. Lee Christofferson; Rep. Kim Koppelman; Dan Hovland Members Absent: Rev. Laurie Natwick Staff: Christine Hogan Chair Rebecca Thiem called the meeting to order at 10:00 a.m. and thanked the members of the Committee for coming to the meeting. Consideration of November 27, 2001 meeting minutes Dr. Antes asked that the November 27, 2001 meeting minutes be amended as follows: At Page 3 under sub-heading "Jim Antes on Mediation Program in Florida," the paragraph should be amended to delete everything but the first and last sentences; also add Dr. Antes' hand-out describing his research on court-annexed mediation programs in Florida. The minutes as amended were approved on a motion by Mr. Gross and seconded by Mr. Hovland. [The revised November 27, 2001 minutes are attached.] ADR Update Ms. Thiem led the Committee members through a round-table discussion on recent ADR issues and events. Ms. Thiem attended a meeting of the Supreme Court Case Flow Management Committee, which is the process of reviewing the South Central Judicial District ADR forms. She reported to that committee on the work of the Joint ADR Committee. Dan Dunn has spoken with several of the judges in the East Central Judicial District who said they would be willing to meet with the joint ADR Committee at an appropriate time to discuss their perspectives on current Rule 8.8. He reported that two judges are currently teaming up to work on cases together one as judge and one as mediator. Judge Christofferson reported that several judges are now taking mediation training or other ADR programs. He does not purport to represent all of the judges regarding their opinions on mediation. Judges' opinions on mediation are diverse. Some decline to do it because they have no budget for it or because they have no training for it. Other judges are very enthusiastic about the training and about handling mediations. Each judicial district is also quite different. Even if a district would want to follow the forms adopted by the South Central District, it would not be possible because many districts do not have centralized scheduling. The best that can be said is that this is an evolving process. The judicial conference has not yet directly addressed ADR issues. In order to get input from the judges, one possibility would be to meet with the Judicial Conference. Another possibility would be to survey the judges. There was a general discussion that surveying the judges should be a topic on the agenda at the planned retreat at the Conflict Resolution Center. Rep. Kim Koppelman based on his conversations with judges, legislators, and others around the state, he thinks there may be some opportunities for gifted lay people to serve as mediators. Several judges have told him that despite taking training in ADR, judges are geared by their professional training toward the philosophy of the court room. Thus, mediation may not be a natural fit for some judges. On the other hand, some lay people have the temperament, skills, and training to become good mediators. He had come to the conclusion that ADR neutrals should not be limited just to judges or to lawyers. Dr. Jim Antes is working on a project on mediator assessment, specifically, with respect to mediators following the transformative model of mediation. He is also working with the concept of mediator certification. One of the issues he is facing is that mediators who are assessed may not measure up because they are practicing a different model of mediation than the assessment is intended to measure. Dr. Antes cautioned the Committee that, as we develop policies and standards, we need to keep in mind that different standards may apply to different theories of mediation. Dr. Antes distributed an article by Dorothy Della Noce entitled "Mediation Policy: Theory Matters" which addresses this very issue. [A copy of the article is attached to these minutes]. Dick Gross his approach is as a facilitator, not as a mediator. He reported his organization, the Consensus Council, has been working on the US Consensus Council legislation. He is skeptical about developing ADR Rules to apply to facilitators. There is such a broad range of models within the ADR umbrella. He said it would be hard to fit all the models within one set of rules. Dan Hovland he would be interested in having the Committee survey the judges in the state regarding their opinions and attitudes toward mediation. Judge Lee suggested that any survey of the judges should also include the referees. Family Law Mediation Pilot Program The chair welcomed the Committee's special guests who were invited to discuss the Family Law Mediation Pilot Program in the South Central Judicial District. She introduced Sherry Mills Moore, Mel Webster, Patricia Garrity, and LaRoy Baird. Ms. Thiem explained she had asked the panel of experts to give the Committee a primer on what has been happening in the South Central Judicial District within the pilot program. She asked the presenters to address the following issues: 1. Should the pilot project be extended to the rest of the state? 2. What is the role of the court in family law mediation? i.e. Should the judges be serving as family law mediators? 3. How does the Family Law Mediation Pilot Project fit within the new ADR Rules? A discussion of the Family Law Pilot Project took place as follows: The pilot project arose out of the Family Law Task Force. A local court rule was developed that required mandatory mediation orientation. In each family law case, a notice is sent out giving the parties 30 days to complete the orientation. A list of court approved local mediators is available in the south central judicial district. [This list has now been folded into the state wide mediator list.] The orientation usually takes one-half hour to one and one-half hours. The Bar Association made available a video tape orientation session conducted by a national mediation group. Some attorneys charge for the orientation session; others do not. The video tape may be used in lieu of meeting with a mediator or in conjunction with the meeting with a mediator. Typically, lawyers do not participate in the orientation sessions. Pro bono mediations are available through Volunteer Lawyer Program. Each lawyer who participated in the SBAND mediation training agreed to provide four pro bono mediations a year. After the parties complete the mediation orientation, participation in actual mediation sessions is typically voluntary. Judges are not usually entering orders requiring the parties to participate in mediation but there have been some circumstances where courts have ordered certain issues be mediated. One of the presenters said he had handled several mediations on single issues such as division of property or establishing a visitation schedule. The presenters suggested that regulatory control over mediators is needed. There is a need for a disciplinary process and a need to ensure that the mediator remains neutral and is not an advocate for one of the parties. To take the side of one of the parties would be a breach of professional responsibility. A disciplinary process is also needed for breaches of confidentiality. The rules should also establish a method for removing ADR neutrals from the state-wide list in the event of a breach. There was a general discussion that the orientation requirement in the South Central Judicial District pilot program is not onerous and does result in some mediated settlements. The presenters agreed there seems to be some value in continuing and extending the program. Data needs to be collected about perceptions of the value of the program amongst the participants. After discussion, there was general agreement that a survey should be sent to all the mediators on the roster asking whether the pilot program should be extended. With respect to the fundamental question whether family law mediation adequately protects the parties; there was a general discussion that regulations need to be developed to protect the parties through requiring confidentiality and neutrality. There was a suggestion that the Uniform Mediation Act is a place to start with respect to appropriate regulations for ADR neutrals. The chair summed up the discussion of the pilot project by stating that the Committee needs to make a recommendation whether the pilot project ought to continue. However, before the Committee can make that recommendation, she said the Committee ought to survey the lawyers, judges, and mediators who have been involved in the process to get more feedback on the value of continuing the project. She said developing a survey would be a good topic for discussion at the Committee's planned two-day retreat. Ms. Thiem thanked the presenters for their participation in the meeting. Dick Gross suggested that the Committee consider some general principles to guide its work. He suggested the following general principles for the Committees consideration: 1. As a Committee, we want to foster mediation. 2. The Committee should be very clear about the fields it is discussing. Since the umbrella of ADR includes so many fields of practice, it is too broad. 3. We do not want to build fences to keep people out of the profession. [This is because a) there are not enough practitioners and b) we do not want ADR to be regarded as a lawyers' profession]. 4. The Committee does not want consumers hurt by bad practitioners. 5. We do not want to damage the field by allowing bad practitioners to continue to practice. Ms. Paranica said that the Uniform Mediation Act may address many of these fundamental principles suggested by Mr. Gross. Representative Koppelman suggested that the principles would provide a good basis for discussion at the planned two-day retreat. The Chair led a discussion on what the Committee ought to be doing. She suggested that we are not yet at the point where we should be preparing draft rules of ethics or discipline for mediators. First, she said we need to address the threshold question of what an ADR Rule for North Dakota should look like if the Committee were drafting it from scratch. She suggested the Committee ought to look at defining what ADR includes. There was a brief discussion whether the rules should just include mediation and not arbitration. The Committee decided that since there is a significant amount of arbitration taking place in North Dakota, arbitration ought to stay within the ADR Rule. The chair acknowledged, however, that the Committee does need to establish guidelines for approving continuing education programs for ADR neutrals. Continuing Education rules for ADR neutrals in North Dakota The Chair directed the Committee's attention to the Revised Draft Guidelines included in the meeting packets at Tab 2. After discussion, the Committee agreed on the following suggested changes for the next draft: 1. In standard 6, add the American Arbitration Association to the list under part (A). 2. In section 2, change 90 days to 120 days. 3. Go back to our earlier draft of the rule, which included a reference to the training topics in Rule 8.9 as opposed to listing the topics. There being no further business, the meeting was adjourned at 3:00 p.m. Respectfully submitted, Christine Hogan SBAND Executive Director