HD34 - Court-Annexed Arbitration
Executive Summary: I. AUTHORITY FOR THE STUDY Adopted by the 1991 Session of the General Assembly, Joint House Resolution No. 435 (HJR 435) requested that the Joint Committee of the Virginia State Bar and Virginia Bar Association ("Joint committee") study the feasibility of mandatory, non-binding arbitration which would be annexed to the courts of the Commonwealth. The Committee chairman appointed a subcommittee, which was assigned the task of performing the necessary research. The subcommittee chairman and one other member began this research and proposed a timetable and an application for a three thousand dollar ($3,000) grant from the Law Foundation of the Virginia State Bar/Virginia Bar Association. The $3,000 grant with which the subcommittee chairman was able to hire research assistants was approved, and research began on July 1, 1991. Also, the Chairman of the Joint Committee and two other members of the Joint committee joined the subcommittee in its subsequent deliberations. II. ALTERNATE DISPUTE RESOLUTION: INTRODUCTION & DEFINITIONS "Resolving disputes in a peaceful manner is a paramount obligation of government to its people. To offer the most effective responsive and appropriate methods for resolving disputes, our judicial system must be able to offer alternative dispute resolution programs along with adjudication." (*1) With that in mind, this report focuses on the feasibility, advisability, and cost-effectiveness of developing a mandatory, non-binding arbitration program in the Commonwealth. Guided by the objectives set out in HJR 435 (*2), we have studied similar programs in other states and researched the issues raised by their implementation. Other sources of information for this report include numerous articles, program evaluations and studies, cases and personal interviews. Alternative Dispute Resolution (ADR): problem-solving processes that act as a substitute for, or adjunct to, the traditional method of resolving conflicts, namely, the court. Arbitration: a process in which a dispute is submitted to a neutral third party who hears arguments, reviews evidence, and renders a decision. Court-Annexed Arbitration (CAA): a court-run dispute resolution process to which cases that meet specified criteria are automatically assigned. Operating under special rules, arbitrators hear cases and render awards. Their awards, however, are not binding, as the parties may always appeal by requesting a trial de novo. Non-binding: litigants have the right to reject the arbitrator's award and request a trial de novo. (*3) Mediation: conciliation of a dispute through the non-coercive intervention of a third party, with the final decision being made by the litigants themselves. Mediation is defined here for comparison with arbitration to help dispel any confusion between the terms and their usage. Mediation is the most effective, responsive and appropriate method to resolve disputes when the parties' relationship is to continue after the dispute. (*4) Mediation also effectively solves the hidden problems underlying a dispute, while arbitration may only resolve an obvious claim. III. WORK OF THE JOINT COMMITTEE After the subcommittee members had provided guidance and suggested resource materials, two researchers, both third-year law students, read summaries of the successes and failures of court-annexed arbitration programs which exist in other states. A review of these materials included statistical analyses of the reduced delays, costs and enhanced litigant satisfaction resulting from court-annexed arbitration programs. Also considered were legal issues which have arisen in states where court-annexed arbitration programs existed. Three working drafts of the study were developed before the Joint Committee meeting of August 30, 1991. During this meeting the subcommittee chairman and other subcommittee members briefed the Joint Committee during this meeting on the salient issues which arose during the research phase of HJR 435. As a result of this meeting, a fourth working draft included information concerning median case disposition periods within the Commonwealth. The HJR 435 also called for input from judges, magistrates, and other legal experts within the Commonwealth. A special working meeting of the Joint Committee took place on September 19, 1991 (*5) at the Campus Center of Mary Washington College where the Committee solicited comments from representatives of groups referenced in HJR 435. The contributions of the special meeting participants were further incorporated into the research study document. After the September 19, 1991 meeting, the subcommittee hired two more research assistants to work on the final legislative draft for consideration of the Joint Committee at its October 30, 1991 meeting. At this meeting the Joint Committee considered matters which arose in the course of the subcommittee's research on issues identified by the legislature. The results of the Joint Committee's deliberations are contained in the recommendations listed in part V, below. _______________________________ (*1) Courts in Transition, The Report of the Commission on the Future of Virginia's Judicial System 30 (May 1, 1989). (*2) See appendix A. (*3) As defined in House Joint Resolution 435. (*4) Cooley, "Arbitration v. Mediation--Explaining the Differences," 69 Judicature 264, 264 (1986). (*5) Attending the September 19, 1991 meeting were as follows: The Honorable Edward S. Kidd, Jr.; the Honorable Robert K. Woltz; the Honorable John B. Preston; Stewart Pierce; F.M. Archer, Esq.; Mark Rubin, Esq.; J.B. Polson; Don Doherty; John S. Murray; A. Blanton Massey, Esq.; Phyllis E. Brown; Anne Brennan Carroll; Richard C. Sullivan, Esq.; Wendall L. Winn, Jr., Esq.; Charles B. Arrington, Jr., Esq.; Richard M. Price, Esq.; Charles D. Bennett, Jr., Esq.; Russell A. Roberts, Esq.; Marty Morrison; Will Miller; Garylee Cox; Eddie Bumbaugh; Lawrie Parker; Delegate James Almand; Lawrence H. Hoover, Jr., Esq.; Richard D. Balnave, Esq.; E. Wayne Powell, Esq.; Barbara Hulburt, Esq. |
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