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Mediation in Maryland Courts

Mediation in Maryland

Alternative Dispute Resolution (ADR) programs have quickly increased in popularity as an alternative to litigation for the resolution of conflicts and implemented as a tool to settle litigation matters prior to trial.  ADR programs have been increasingly put into practice by both federal and state courts.  As with any change in the legal system, there are conflicting opinions and statistics as to whether mediation is achieving the desired goals and whether mediation should be court ordered or mandatory.

Maryland District Courts

The most common ADR programs in Maryland district courts are pretrial conferences and mediation.  Pursuant to Maryland Rule 3-504, pretrial conferences are conducted by a judge for the purpose of narrowing issues, stipulating to facts, identifying evidence or exhibits, identifying witnesses, and, generally, paring down complicated cases.  Although the primary purpose is not to settle or resolve the case, some conferences may result in settlement.  Mediation is most prevalent in district courts having overcrowded dockets, as one chief benefit of mediation is docket reduction.  Another significant benefit of mediation is that it can lead to long-term resolution of conflicts by allowing the parties flexibility to create a more specific or creative resolution than the court could.  While mediation is successful in reaching agreements, the major hurdle is getting the parties to participate in the mediation process.  To encourage participation in mediation programs, district courts often show an educational video explaining mediation as an option prior to the commence of courtroom proceedings.  Additionally, district courts strive to provide mediation services free of charge to the public by using volunteer mediators.    

Maryland Circuit Courts

Like Maryland district courts, common ADR programs in Maryland circuit courts also include pretrial conferences and mediation.  All jurisdictions report that judges, retired judges, or attorneys conduct settlement conferences or arbitration sessions in certain civil cases.  Additionally, circuit courts in almost every jurisdiction recognize and implement court-ordered child custody and visitation mediation.  Overall, the mediation process has gained popularity in the circuit courts.

The Maryland Court of Appeals enacted Title 17 of the Maryland Rules of Procedure addressing ADR in the circuit courts.  The rules only apply to Maryland’s circuit courts and place certain constraints on the courts’ ability to mandate participation in ADR.  For instance, Maryland Rule 17-103(c)(3) authorizes a circuit court judge to enter an order referring a case to a non-fee-for-service ADR process, including mediation.  Non-fee-for-service simply means that the person conducting the proceeding will not charge the parties for his or her services.  A court cannot compel participation in fee-for-service ADR.  See Md. Rule 17-102(c) and Md. Rule 17-103(3).

Typically, the non-fee-for-service settlement conferences take place in an office or conference room within the courthouse and are presided over by a judge or a retired judge.  Settlement conferences are not conducted in open court and, thereby, are not open for attendance by the general public.

Court-Appointed Mediators

Title 17 of the Maryland Rules of Procedure allows the court to designate a mediator and sets forth the minimum qualifications required for court-designated mediators.  Md. Rule 17-103 and 17-104.  As with any profession, the experience and quality of the mediators who meet (or exceed) the minimum credentials vary wildly.  Therefore, it is prudent to evaluate the designated mediator’s experience and success.  If it appears that the mediator is not a good match, it is necessary to file a timely objection.  An objection may be filed within thirty (30) days of the entry of the court’s order for mediation and its designation of the mediator.  Md. Rule 17-103(c)(2).  Md. Rule 17-103(c)(2) allows any party to object to the designated mediator and propose an alternate mediator.  Again, the court cannot compel the parties to participate in any ADR proceeding in which the parties have to pay the mediator or any person presiding over the proceeding.  Md. Rule 17-103(c)(3).    

Mediation Confidentiality

Title 17 of the Maryland Rules of Procedure requires the mediator and all participating parties to maintain the confidentiality of all communications during the mediation.  Md. Rule 17-109.  This confidentiality rule is meant to encourage the parties to speak openly about the issue at hand and to propose offers of settlement without the concern of appearing to bid against oneself or admit wrongdoing.  Nevertheless, parties should be discouraged from language and word choices which may be disrespectful or otherwise inflammatory to the opposing party.  Parties should also be careful not to disclose the privileged and confidential communications with their attorneys.

A word of caution:  Not all information becomes protected or otherwise inadmissible solely on the basis of its mention during mediation.  Any information which is subject to discovery does not fall under the protection of confidential mediation communications.

Court-Ordered Mediation

            Mandatory mediation assists in overcoming litigant and attorney resistance by providing education for an unfamiliar process to many, while simultaneously exposing more litigants to its potential benefits.  From the perspective of family law attorneys, mandatory mediation looks attractive both from a strategic standpoint and an education one, as it allows neither party to appear weak by requesting mediation voluntarily and exposes all parties to the process whether or not the attorneys are aware of the program’s benefits or risks.   

In most situations, mandatory mediation is non-binding.  This means that the parties are able to enter settlement discussions and still use the court system to resolve their dispute if the parties are not able to reach an agreement.  Mandatory mediation allows the parties to consider settlement earlier in the dispute process to potentially save both time and money.

Mediation, even when mandated, gives both parties the opportunity to compromise and walk away with a resolution that each can live with, as opposed to the litigation process, in which one party emerges from the courtroom as a distinct loser.  Mediation allows for give and take rather than a straight out victory or defeat.  Mandatory mediation allows the parties to decide themselves what is best for them and their business, rather than the court.  Mandatory mediation gives the parties the chance to discover creative solutions to their conflict that may not have been considered or available in litigation. Further, mandatory mediation ensures that the necessary parties to the dispute will be present to discuss settlement possibilities.

Similar to the development of mediation programs, mandatory mediation statutes continue to be criticized.  Critics argue that mandatory mediation is not true mediation because it eliminates mediation’s key element — voluntariness.  With mandatory mediation, parties no longer control the process, and the goals of mediations including self-determination and empowerment are lost.  Another criticism of mandatory mediation is a concern that the process coerces parties to settle the case.  This pressure may be greater with cost-conscience litigants who are required to pay for attorney representation at the court-ordered mediation and for attorney representation at trial if mediation is not successful.  Finally, critics oppose the use of mandatory mediation for cases where violence is involved due to safety reasons and imbalance of bargaining power.              Despite criticism, the state’s enactment of ADR legislation allows the courts the power to mandate mediation in certain instances, and the courts’ actions in ordering mediation suggest that parties benefit from mediation even when it is mandatory, that parties are satisfied with the outcome, or that the resulting settlement rates are significant. 

Maryland’s Mediation Statutes

             The development and expansion of court-based mediation programs logically produced a need to structure a more standardized or uniform way in which Maryland courts could implement this program to its full potential, while accomplishing both the goal of resolving disputes outside of the courtroom and maintaining justice.  Therefore, to no surprise, Maryland’s history has witnessed the enactment of a number of statutes dealing with the use of mediation.   

            In the labor-management field, Maryland created the State Mediation and Conciliation Service (SMCS), a unit functioning within the State Division of Labor and Industry.  Section 4-104 of the Maryland Labor and Employment Article of the Maryland Annotated Code directs the SMCS to “promote voluntary mediation or arbitration of disputes between employers and employees” and to “discourage resort to a legal proceeding or to a blacklist, boycott, discrimination, or lockout in or arising out of a dispute between employers and employees.”  Additionally, Section 4-106(a) authorizes the SMCS to “(1) Conduct an investigation; (2) Hold hearings; (3) Administer oaths; and (4) Issue a subpoena for the attendance of a witness to testify or the production of books, papers, and other documents.” 

Other provisions permit state officials to mediate disputes.  Section 9-206 of the Business Regulations Article authorizes the Commissioner of Labor and Industry to mediate written complaints against employment agencies and employment counselors.

In other instances, legislation permits mediation as a method of resolving disputes between parties and certain governmental agencies.  Section 8-413(b)(1) of the Education Article provides that “[i]f a parent seeks review of the decision of a public agency concerning the identification, evaluation, or educational placement of a student or the provision of a free appropriate public education, any party shall be given the opportunity to request mediation of those aspects of the decision subject to dispute.” 

Conclusion

            As the use of mediation continues to expand, issues such as the quality of available mediators, the cost of mediation, and the confidentiality of the mediation communications will continue to arise and will need to be specifically addressed.  A successful balancing act between the policy goals of judicial economy and fairness, while maintaining the integrity of the mediation process will be difficult to achieve.

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