ADR Task Force Presented with Rare Opportunity

By John C. Schafer
Deputy Commissioner in Charge of Mediation
N.C. Industrial Commission

Throughout the country it is quite common for professionals in many fields to lament the fact that an organizational structure or legislative framework which at one time may have worked very well has, for a variety of related or unrelated reasons, ceased to function efficiently. On the other hand, it is not very common at all for any such group of professionals to be given an opportunity to take a step back and attempt to design the best possible structure without regard to the existence of the current structure, or the various events and circumstances that have led over time to the development of the current structure. However, dispute resolution professionals in North Carolina have indeed been presented with this rare opportunity.

Since 1983, when the N.C. Bar Foundation’s Task Force on Dispute Resolution was created by the NCBA’s President at that time, Charles L. Fulton, dispute resolution programs and procedures have developed at an incredible rate. Unfortunately, in recent years the ADR governance structure has become so dysfunctional that the ongoing development of dispute resolution programs has in some respects grounded to a halt. Although the Supreme Court has always retained ultimate decision-making authority in the ADR area, primary oversight responsibility over dispute resolution programs is currently divided between the Dispute Resolution Commission ("DRC") and the Administrative Office of the Courts ("AOC"). The DRC had been established in 1995, at or about the same time that the Supreme Court’s standing committee on dispute resolution ceased to exist. The lines of jurisdiction and responsibility between the DRC and AOC are not clear, and turf disputes have developed. Since there has not been a mechanism or procedure in place to resolve such disputes, worthwhile initiatives languished without any hope of progress. For example, the implementation of a menu approach to ADR in the Superior Court program has been stranded for years. Fortunately, the Canons of Ethics for Arbitrators somehow survived a tortuous route through the governance maze before being approved by the Supreme Court this past summer. Similar problems will plague the dispute resolution community, without a system-wide overhaul.

The need for a prompt and thorough review of the state’s dispute resolution governance structure was highlighted by the recent creation of the State Judicial Council. The new Council was given a broad legislative mandate in the dispute resolution area, although the details of how it is supposed to fit in to the current governance structure are less than clear. The legislation (House Bill 1222) creating the Council provides, in pertinent part, as follows:

The State Judicial Council shall study and recommend guidelines for the assignment and management of cases. The guidelines may provide for an appropriate form of alternative dispute resolution and/or post-trial alternative dispute resolution. The Council shall evaluate the effectiveness of alternative dispute resolution programs with the assistance of the Director of the Administrative Office of the Courts and the Dispute Resolution Commission.

At the request of the Dispute Resolution Section, Chief Justice Henry E. Frye appointed the ad hoc Dispute Resolution Task Force in November of 1999. The mission of the Task Force is to make written recommendations to Chief Justice Frye concerning the best governance structure for the state’s court-sponsored dispute resolution programs. In this regard, it should be emphasized that the recommendations to be made by the Task Force are not to be limited by the parameters of the current governance structure, but may include proposals requiring legislative action. Chief Justice Frye noted that this is a good time to develop a plan of action to create a centralized forum or umbrella group to monitor, evaluate, and regulate our current ADR programs, as well as to suggest additional future programs, if appropriate.

The Task Force is chaired by former Chief Justice James G. Exum, Jr. who, like Chief Justice Frye, has been very active in the field of dispute resolution for many years. I am privileged to be a member of the Task Force, along with DRC Chair Judge Ralph A. Walker, AOC Director Judge Thomas W. Ross, Judge Catherine C. Eagles, a superior court judge in Greensboro, Judge E. Burt Aycock, a district court judge in Greenville, Professor James C. Drennan of the Institute of Government, Dean Ralph Peeples of Wake Forest University School of Law, Kathy L. Shuart, the Trial Court Administrator in District 14, and James E. Gates, Esq., the immediate past chair of the section.

The first two Task Force meetings were convened on December 17, 1999 and on February 11, 2000, and four more meetings have been scheduled over the next few months. The Task Force anticipates that its recommendations will be submitted to Chief Justice Frye by the end of June, 2000. It is hoped that the Task Force’s work will result in an improved governance structure that will allow dispute resolution programs and procedures in this state to flourish over the next fifteen years, as they have flourished over the fifteen years since dispute resolution was first introduced into our court system.

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