|Joint ADR Committee History|
By Larry Hoover
When the Virginia Bar Association and the Virginia State Bar decided in June 1986 to form a joint committee on Alternative Dispute Resolution, there was already a major ADR initiative under way in the state. Earlier that year, Kent Sinclair, professor of law at the University of Virginia, had asked the Virginia Law Foundation to fund the establishment of a Virginia Dispute Resolution Center. The newly organized Joint Committee, chaired by Ed Burnette of Lynchburg, supported this proposal and took on the establishment of the Center as one of its two initial projects. The other project was to seek the funding and establishment of a pilot dispute resolution center in Richmond.
Dispute Resolution Centers
The Law Foundation approved the grant application and the two centers were funded in the amount of $60,000 in early 1987. The Dispute Resolution Center was located in Charlottesville and directed by Rich Balnave, law professor at the University of Virginia and managed by the Joint Committee. The Charlottesville Center first did an intensive survey of the dispute resolution providers that were already operating in Virginia (approximately 50, more than half of whom were mediators in Juvenile and Domestic Relations Court Services Units) and then undertook its mission as a clearinghouse for all dispute resolution programs in Virginia and as coordinator of the training and education of Virginia lawyers. The Center published the first Directory of Virginia Dispute Resolution Providers. The Center also organized the first mediation training for lawyers in Williamsburg.
Working through Virginia CLE, Rich Balnave organized and moderated Virginia's first CLE on Alternative Dispute Resolution, presented at four locations in the fall of 1987. The half-day survey course covered an overview of ADR, including problem-solving negotiation, mediation, arbitration, mini-trials and private judging. This state-wide exposure helped identify lawyers throughout the state that were already involved in ADR or were interested in getting involved and helped identify persons who ultimately became members of the Joint Committee.
The Dispute Resolution Center in Richmond was started in 1987 as a joint project of the Joint Committee and the Better Business Bureau. Directed by Karen Donegan-Salter the Richmond Center joined several other community centers already established in Virginia, using trained volunteer mediators to resolve a variety of disputes and offering training in mediation skills to the public. The Harrisonburg and Richmond centers also established conflict resolution (peer mediation) programs in the public schools and trained teachers throughout the state who were interested in developing these programs.
The Carrico Initiative
As these initiatives were getting underway Virginia Supreme Court Chief Justice Carrico began a process that was to eventually expand significantly the acceptance and use of ADR in Virginia. In 1987 he appointed a 34-member Commission (known as the Futures Commission) on the Future of Virginia's Judicial System, which presented its findings in May, 1989. The Commission made several recommendations encouraging the development of alternative dispute resolution processes both within the court system and by community-based providers. The Commission also urged the creation of an Office of Alternative Dispute Resolution Services. The Joint Committee began working with the executive branch to implement the Commission's recommendations and sent its own recommendation to the Secretary of Administration to establish a state-wide office of dispute resolution. The main aspects of the Commission's recommendations were supported by the Judicial Council and the Virginia Assembly on the Future of Virginia’s Courts, sponsored by U. Va.'s Center for Public Service.
Legislative activity dominated the Joint Committee's agenda the next few years, during which the membership grew from eight to twenty-one by the end of 1990. A legislative subcommittee, chaired by John Murray, promulgated a draft of a statute in 1990 which defined ADR processes and authorized judges to refer litigants to an appropriate process (generally known as the "referral statute"). Then in early 1991 the Virginia General Assembly enacted HJR 435 in which it requested the Joint Committee to examine the feasibility, advisability and cost-effectiveness of developing mandatory nonbinding arbitration in Virginia's court system.
Joint Committee member Wayne Powell took on this project, secured grant funds, hired a support staff and, working with an ad hoc committee of the Joint Committee, finished the study and report as requested in time for consideration by the 1992 VGA. The Joint Committee also submitted its proposed referral legislation and secured the sponsorship of Delegate James Almand, Chair of the House Courts of Justice Committee. The proposed legislation was the subject of a hearing before the House Courts of Justice Committee and was carried over to the 1993 session. The nonbinding arbitration pilot project legislation was not introduced.
ADR Goes Statewide
Meanwhile, the Joint Committee was continuing to support the establishment of the statewide ADR office in the administrative office of the Supreme Court, which was funded in early 1991. Barbara Hulburt was selected as the first director of the Supreme Court's Department of Dispute Resolution Services (DRS) in March, 1991. Barbara played a key role in developing and advocating for the adoption of the referral statute. She also began assuming the ADR clearinghouse responsibilities and the educational function that had been so ably handled by Rich Balnave and the Virginia Dispute Resolution Center in Charlottesville. Members of the Joint Committee played key roles in the development and work of DRS, serving on DRS committees and assisting with the development and presentation of CLE programs on ADR and production of a Virginia Lawyer's ADR Guide.
The referral statute was passed by the General Assembly in 1993. Issues raised by the Virginia Trial Lawyers Association and the VSB Family Law Section and by individual lawyers were dealt with and changes were made in a series of negotiations attended by representatives of the Joint Committee, DRS and the legal groups involved. The legislation not only established a procedure for referral by courts to a dispute resolution process, it also defined the various dispute resolution processes, provided for the qualification of neutrals, outlined the system of certification of mediators, established standards and duties of neutrals and confirmed the confidentiality of the processes.
The Story Continues
For many years, the Joint Committee has wrestled with the recurring and difficult question of whether the practice of mediation could be seen as the unauthorized practice of law (UPL). Some early opinions of the Ethics Committee of the Virginia State Bar addressing mediation had alerted the Joint Committee in the early 1990's that conflict in this area was predictable. An ad hoc committee of the Joint Committee got permission from the Ethics Committee to comment on a proposed ethics opinion involving UPL. Thinking that it would be a good opportunity to deal with this thorny issue and hoping that it would bring some clarity to the tough issues the Ethics Committee was facing, the Joint Committee drafted a fairly comprehensive comment. But the timing was not right and this issue remained unresolved.
The Department of Dispute Resolution Services (DRS) and the Virginia State Bar convened a conference in 1997 to provide mediators with clarity on the unauthorized practice of law, but the conference unfortunately heightened mediator anxiety and exacerbated tensions between attorney and non-attorney mediators. In 1999 DRS got a grant and convened a special committee to study this issue and members of the Joint Committee had another go at the issue. What eventually emerged were Guidelines on Mediation and the Unauthorized Practice of Law, published by DRS which attempted to make the difficult distinction between permissible legal information and impermissible legal advice and to authorize the drafting of mediated agreements while limiting the drafting service to that of a scrivener.
The outcome was paradoxical. On the one hand it was only by some inspired process work by several members of the Joint Committee, especially Torrence Harman, during the final session of the committee, that the Guidelines were adopted with the approval of the Chair of the VSB Ethics Committee and its counsel in a form that was not unduly restrictive. On the other hand, the Virginia Guidelines have been criticized by the some of the leadership of the American Bar Association Section on Dispute Resolution as being a harmful precedent for the growth and development of mediation. The DR Section’s resolution on this subject, adopted in February, 2002, avoids the legal information/legal advice dilemma by simply stating that mediation is not the practice of law and making the mediator responsible for informing the parties that the mediator does not provide legal representation. This is a good solution and the Virginia UPL Guidelines should be revisited.
The New Rules of Professional Conduct
A comprehensive review of the Code of Professional Responsibility began in 1993 and continued until the Supreme Court of Virginia approved the Virginia Rules of Professional Conduct in 1999, using the format of the ABA’s Model Rules of Professional Conduct. Throughout this process, members of the Joint Committee were involved in drafting, and negotiating additions to, a number of provisions relating to ADR and collaborative lawyering. Carl Hahn and Larry Hoover (also a member of the special committee reviewing the Code), co-chairs of the Ethics Committee of the Joint Committee, took the lead in this effort. The Virginia Rules include provisions defining the roles and responsibilities of lawyers acting as third party neutrals (Rules 2.10 and 2.11) and interpretive comments to several rules relating to the lawyer/client relationship (Rules 1.1 – 1.4). Perhaps the most innovative addition to the Model Rules is a comment to Virginia Rule 1.2 (Scope of Representation) that requires a lawyer to advise the client about the advantages, disadvantages and availability of dispute resolution processes that might be appropriate in pursuing the client’s objectives.
In recent years the focus of CLE programs has moved from introducing lawyers to ADR generally to offering more specific assistance to lawyers who are representing clients in mediation. This form of representation requires an adjustment from the classic advocacy role where there is a third party decision-maker. Now the focus is introducing strategies, skill sets and special ethics issues relevant to the lawyer as problem-solver in the mediation context. Members of the Joint Committee have taken the lead in this shift.
The Joint Committee, the Virginia Mediation Network and the Department of Dispute Resolution have continued to work together on legislative initiatives. These efforts resulted in the passage in 2002 of the Virginia Administrative Dispute Resolution Act (VADRA, Va. Code Section 2.2-4115 et seq.) and a number of clarifying changes to the referral statute (Va. Code Section 8.01-576.4 et seq.) and revisions to the general mediation statute (Va. Code Section 8.01-581.22 et seq.) to make it consistent with the referral statute.
The new VADRA authorizes public bodies to use dispute resolution proceedings and requires each state agency to adopt policies for use of these proceedings within the agency, its programs and operations. VADRA also establishes the Interagency Dispute Resolution Advisory Council, made up of dispute resolution coordinators designated by the head of each state agency and three persons appointed by the Governor who may be selected from nominations submitted by the Joint Committee and the Virginia Mediation Network. The Council is responsible for training and educational programs and materials and reports and makes recommendations for legislative changes to the Governor and the General Assembly.
Continuing the tradition of collaborating with and supporting the work of the community mediation centers in Virginia, the Joint Committee and the Institute of Environmental Negotiation have supported the creation of a more formal coalition of community centers. The Joint Committee has also continued its support of mediation in the public schools through the recent sponsorship of peer mediation programs in the Richmond school system.
Restructuring the Committee
In 2002, the Joint Committee was re-structured. The newly organized Joint Committee had been in the making for several years and owes much to the leadership of Mark Rubin. The impetus for change came from the need for a structure that allows for open-ended membership by Virginia lawyers. By the fall of 2003, 409 lawyers had joined the newly-expanded Joint Committee. In addition to increased membership of the committee, the new structure provides for a governing council of sixteen members elected to four year staggered terms by the membership, which also elects officers annually. It provides for membership fees, which will support the administration of the program by the Virginia Bar Association.
The Joint Committee has a rich history and its members have made major contributions to the development of mediation and dispute resolution in the state and beyond. The restructuring of the committee is timely. It will encourage broader participation and influence by lawyers increasingly interested in collaborative, problem-solving processes that promote the importance of constructive and satisfying participation by clients in the resolution of their disputes.
Larry Hoover is of counsel at Hoover Penrod, PLC, a Harrisonburg law firm. He taught seminars in Negotiation and Mediation at Washington and Lee School of Law and University of Virginia School of Law and is a member of The McCammon Group, a Richmond based provider of mediation, arbitration, training and consulting services. He was chair of the Joint Committee from 1989 to 1992. This history of the ADR Joint Committee originally was published in two parts in Virginia ADR, the newsletter of the Committee, in the summer of 2002 and Fall/Winter of 2003.