By Erik C. Johnson, Creative Dispute Resolutions, LLC
The past few years have seen a considerable amount of discussion about possible changes to Title 17 of the Maryland Rules – the rules that govern the use of mediation and other forms of ADR through the circuit courts in this state. The rule-changing process began as an effort to address several concerns that had been raised by various organizations in the past about the court-ordered mediation programs and to harmonize the rules applying to the mediation of civil cases (Title 17) and the mediation of child custody and visitation disputes (Rule 9-205).
Much of the initial work on the changes to the courts’ mediation rules came from the ADR Subcommittee to the overall Rules Committee. The MSBA’s ADR Section and the Maryland Council for Dispute Resolution then spent a considerable amount of time submitting written comments to the Subcommittee’s initial drafts. The ADR Section also testified in response to the draft changes before the ADR Subcommittee and then the Court of Appeals. While not all of the suggestions the ADR Section made were implemented, its efforts did lead to several substantive modifications to the initial draft changes and, in our view, a better end product.
On November 1, 2012, the Court of Appeals approved the final draft changes to Title 17 and Rule 9-205. The changes to these rules took effect on January 1, 2013. The ADR Section will be hosting a Pizza & Professionalism program to discuss these changes in detail on February 12, 2013 (6:30 to 8:30 p.m. at the University of Maryland Law School in Baltimore). In the meantime, we thought it would be helpful to circulate the following executive summary of the more substantial changes to the rules:
Title 17 is now broken down into three sections: Chapter 100 contains general provisions applicable to the entire Title; Chapter 200 covers ADR in the circuit courts; and Chapter 300 is a new section governing the use of ADR in Maryland’s district courts. It should be noted that future sections (Chapters 400 and 500) concerning ADR in the Court of Special Appeals and Maryland’s Orphans’ Courts are planned.
Chapter 100 starts by making clear that Title 17 only applies to court-referred ADR processes, not to private mediation, contractual agreements to mediate, foreclosure mediation, or a few other limited exceptions. There are several stylistic modifications made to the “Definitions” section of this Chapter (17-102), and one new category for “ADR Organization,” which is defined as “an entity, including an ADR unit of a court, that is designated by the court to select individuals with the applicable qualifications required by Rule 9-205 or the Rules in this Title to conduct a non-fee-for-service ADR ordered by the court.”
The more substantive changes in Chapter 100 relate to the “Role of the Mediator” (Rule 17-103) and “Mediation Confidentiality” (Rule 17-105) provisions. In Rule 17-103, there is now a Committee Note that attempts to shed light on the proper role of a mediator when it comes to agreement-writing. It reads as follows:
Mediators often record points of agreement expressed and adopted by the parties to provide documentation of the results of the mediation. Because a mediator who is not a Maryland lawyer is not authorized to practice law in Maryland, and a mediator who is a Maryland lawyer ordinarily would not be authorized to provide legal advice or services to parties in conflict, a mediator should not be authoring agreements regarding matters in litigation for the parties to sign. If the parties are represented by counsel, the mediator should advise them not to sign the document embodying the points of agreement until they have consulted their attorneys. If the parties, whether represented or not, choose to sign the document, a statement should be added that the points of agreement as recorded by the mediator constitute the points of agreement expressed and adopted by the parties.
Based on the discussions at the ADR Subcommittee and subsequent Rules Committee meetings, the underlying concern motivating this Committee Note appeared to be the practice of adding boilerplate language or legal waivers and stipulations to agreements that the parties had not discussed or otherwise agreed upon.
In Rule 17-105(e), the rule regarding confidentiality for mediations conducted through the court programs contains a change relating to the discovery and admissibility of confidential mediation communications. In particular, the word “privileged” was removed, so that the new provision reads as follows: “Mediation communications that are confidential under this Rule are not subject to discovery, but information that is otherwise admissible or subject to discovery does not become inadmissible or protected from disclosure solely by reason of its use in mediation.”
Chapter 200 sets forth the procedural aspects of ADR within the circuit courts for various civil cases. There are several changes in this section that merit attention.
In Rule 17-202(c), the circuit courts now have the authority to designate either an ADR practitioner from their approved rosters or an “ADR Organization,” which would then have the authority to name a qualified individual within its organization as the ADR practitioner. The indirect designation to an ADR Organization is limited to non-fee-for-service referrals only, which would include referrals of indigent litigants to community mediation centers and referrals to established mediation units within the courts.
In Rule 17-202(e), the new rule requires that a circuit court’s order of referral specify the hourly rate to be charged (which may not exceed the maximum rate established in that jurisdiction) and specify “a maximum number of hours of required participation by the parties.” The parties may participate for less than the number of hours stated if they and the ADR practitioner agree that no further progress is likely, and they may also extend beyond the maximum number of hours if everyone so agrees. This rule provision also now explicitly prohibits court-designated ADR practitioners from raising their specified, court-mandated hourly rate at any time during that referred process. Specifically, the change reads as follows: “During any extension of the ADR, the ADR practitioner may not increase the practitioner’s hourly rate for providing services relating to the action.”
In Rule 17-202(f), there is now a detailed procedure by which parties and counsel can object either to the court’s referral to a fee-for-service ADR process in total or to the individual tentatively designated by the court to conduct the process. Included in this process is a new substitution form (17-202(g)) that the parties will use to request a different ADR practitioner, and the parties are not required to select a mediator from the court’s roster. The form makes clear that the court’s fee schedule and maximum rate do not apply to an ADR practitioner selected by the parties and substituted into the court’s referral order.
Pursuant to Rule 17-202(h), ADR practitioners, even those selected by the parties as a substitute mediator, must provide to the parties any evaluation forms issued by the court. Following the mediations, ADR practitioners also must promptly notify the court as to whether the mediation resolved all, some, or none of the issues in the case.
In Rule 17-203, a brand-new section has been created for ADR referrals of health care malpractice actions, consistent with the existing statute that makes such referrals mandatory. The new rule gives the parties 30 days from the filing of the answer or the defendant’s certificate of a qualified expert (whichever is later) to choose an ADR practitioner and to so notify the court. A form is provided for the parties to make this selection. If no selection is made within that time period, the court will appoint an ADR practitioner who meets the necessary qualifications, but who is then subject to written objection by the parties within 15 days. Given the complexity of some of these cases, the new rule also allows the ADR practitioner to mediate the scope and schedule of discovery, if he or she deems that necessary.
In 17-205(a), a few changes have been made to the basic qualifications standards of court-designated mediators. In particular, the new rule requires qualified ADR practitioners to complete four hours of continuing mediation-related education each year rather than 8 hours every two years. Also, the previous qualification standard of at least a bachelor’s degree has been removed.
In Rule 17-208, the fee schedules provision of the rules has been modified to make clear that the court’s fee schedules “apply only to ADR practitioners who are initially designated by the court, and not to an individual selected by the parties as a substitute mediator or to an ADR practitioner selected by the parties at the outset, even if the selection is subsequently memorialized by the court in an order of referral or consent order.” This section also reiterates that a court-designated ADR practitioner may not raise his/her hourly rate beyond that allowed by the court’s fee schedules.
This Chapter is completely new and creates rules applicable to ADR conducted within the district courts. The sections within this Chapter (1) authorize the ADR Office (i.e., the current District Court Alternative Dispute Resolution Office) to administer the various district court ADR programs; (2) authorize the district courts to order non-fee-for-service ADR on or before the day of trial (with an exception for domestic violence protective order actions, and an objection process if ADR is ordered on the day of trial); (3) set forth the procedures for designating the mediator; (4) identify the qualifications that must be met to serve as a court-designated mediator; and (5) prohibit district courts from requiring the litigants and counsel to pay a fee for participating in the ADR process with a court-designated practitioner.
Title 9, Rule 9-205
Finally, there are also several changes to Rule 9-205, which addresses the court-ordered mediation process for child custody and visitation disputes. Most of the changes mirror the ones proposed to Title 17, including (1) a similar designation and substitution process that provides a form the parties should use to request a different mediator and makes clear that the maximum court rate only applies to those mediators actually designated by the court and not selected by the parties (9-205(d)); (2) a similar recitation of the proper “Role of the Mediator” (9-205(h)); and (3) a similar prohibition against a court-designated mediator raising his/her rate beyond the court’s maximum rate (9-205(g)(3) and 9-205(k)(1)). The modified rule also specifies that the court’s ADR order in these types of mediations may require “the parties to attend a maximum of four hours in not more than two mediation sessions,” unless the parties agree to extend the mediation.