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Firms offer alternatives in disputes Mediators, arbitrators may give swifter results than courts; Called 'absolutely critical'; Reformers want such techniques established by law

THE BALTIMORE SUN

To some Americans, having their day in court is a constitutional right. But in these days of clogged dockets and slow justice, people in Howard County and elsewhere are looking to resolve disputes outside the courtroom.

The Resolution Center in Ellicott City opened three months ago to give residents a cheaper, faster and sometimes less-painful way to deal with conflicts, says its founder, attorney Thomas K. Swisher.

Mediation and arbitration are growing trends throughout the state, said George B. Riggin, head of the state Administrative Office of the Courts.

A group examining court reform recommends that such dispute resolution techniques be established by law.

The Commission on the Future of Maryland Courts recommended in its Dec. 15 report to Gov. Parris N. Glendening that local courts be required to consider using mediation or arbitration for civil cases and some minor criminal cases, Riggin said.

He said the report, which will be submitted to the legislature in the next session, calls for local jurisdictions to set up a system where they can decide what kinds of cases are suited for alternative dispute resolution (ADR) and what form to use.

"The committee felt very strongly that ADR was absolutely critical for the court system to be able to process cases because of increased caseload," Riggin said.

Some cases -- particularly family issues or business concerns -- are simply better suited to a noncourtroom setting, he said.

In mediation "the parties participate jointly in forming an answer to the dispute, rather than having a third party," Riggin said. "It's private. It certainly does not require that you air all your problems in public."

Swisher said that while someone may wait about 10 months for a hearing in a lawsuit filed within the court system, most can have an appointment to begin mediation or arbitration within two to four weeks.

His center -- which has handled about 40 cases since it opened -- offers mediation and arbitration.

Two methods

The two processes are very different.

In mediation, the parties meet -- with or without attorneys -- and work with the mediator to come up with a solution to their concerns. Ground rules are set, and, at the end, the parties sign a binding contract that stipulates their agreement.

Mediators try to find out what is truly important to people. J. Michael McWilliams, a Baltimore mediator, uses the example of two children fighting over an orange. The orange is split in two -- one child eats the pulp and throws away the rind; the other tosses the pulp and uses the rind to make a pie.

"That's what mediation is all about, asking direct questions to find out what the parties really want," McWilliams said.

If mediation does not work, then the parties go to court. But Swisher says 85 percent of his center's cases have been settled.

Arbitration is more like a trial, where evidence is presented to an independent third party and that person makes a ruling.

The parties outline rules and decide whether they will be bound by the arbitrator's decision.

The arbitration cases are handled at the Resolution Center by retired Howard County Judges J. Thomas Nissel, Cornelius F. Sybert Jr. and R. Russell Sadler, who are paid on an hourly basis for each case they hear.

Rules of evidence can be more relaxed than in a courtroom. For example, the parties may agree that a medical expert can submit a report -- rather than testify -- in an auto accident case, Swisher said.

Binding arbitration judgments can be overturned in court only if a party proves the arbitrator was incompetent or fraud occurred.

Arbitration can still be costly because the parties must pay for the arbitrator and other personnel, costs generally assumed by the court system in court cases.

Faster process

But arbitration and mediation proceedings usually move much more quickly than court trials, said former Baltimore City Circuit Judge Hilary D. Caplan. A case that goes to a jury trial that may take two weeks in court, for example, may take only a day and a half in mediation.

"I think people are really not on stage like they are in court," said Caplan, who has been working as a mediator and arbitrator for 18 months. "When you're on stage, you are more theatrical. When you get into arbitration, you get to the nitty-gritty of the case."

Caplan recently mediated a $20 million settlement in the case of an Anne Arundel boy whose intestines were pulled out by a swimming pool drain.

Caplan, who makes between $150 and $250 an hour, is one of several private attorneys -- and former judges -- who have gone into the mediation and arbitration business recently. Legal experts said most law firms now have at least one person in the firm trained in those techniques.

McWilliams set up his group -- Maryland ADR Inc. -- about a year ago. It is a network of 18 Baltimore-area attorneys who have been trained in mediation and arbitration.

Said Caplan, who is not part of McWilliams' group: "It's becoming more acceptable to lawyers because they know their clients can't wait three years to get to court."

Mediation and arbitration are not new in Howard County. John Shatto, administrator for the Howard Circuit Court, said that for the past four years judges have been able to refer cases to a settlement judge to try to reach a resolution before trial.

Shatto credits the program with reducing the court's caseload. Four years ago, he said, it could take as long as three years before a case was heard. Now it takes about 10 months, he said.

But mediation and arbitration may not be for everyone, legal experts say. In some cases, passions run too high and people's positions are too set to have anyone other than a judge make a ruling in a case, said Kenneth Lasson, a professor at the University of Baltimore School of Law.

In addition, Lasson said, lawyers -- who are trained to be adversarial and win -- may not feel comfortable with alternatives to a courtroom battle. Because they are paid by the hour, lawyers also may not earn as much money, other legal experts said.

Lasson said that disputes through the ages have been resolved using techniques similar to arbitration and mediation. Then the modern court system was born.

"The court system evolved naturally out of necessity where disputes could not be resolved," Lasson said. Gradually it progressed, he said, to the point where "lawyers would then go to court before even considering mediation."

Pub Date: 12/30/96

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