Mediation offers way to defuse litigant strife

It’s cast as fine tool to settle disputes

Little Rock attorney Frank Hamlin was mediating before mediating was cool.

Mediation, a seldom-seen side of the Arkansas legal system, is the process of using a neutral mediator to help opposing parties resolve a dispute through negotiation. The procedure “promotes peace and civility,” he said.

“It really helps people,” he said. “I found it to be more challenging than taking one side in a lawsuit and trying to beat up on the other side. I found it more challenging to bring people together in something they really didn’t want to do, or didn’t know how to do, and reach a peaceful solution.”

Mediation is markedly different from arbitration, its better known counterpart, where the parties typically give up their rights to a trial and submit their dispute to an arbitrator who acts as a judge with binding decision-making authority.

Mediators can try only to facilitate a solution that is agreeable to both sides, and if the procedure is not successful, the parties have not given up any of their rights to a trial.

Mediation, which carries

strict confidentiality requirements, is typically a low-key procedure, but the process has garnered statewide attention in recent weeks with Pulaski County Circuit Judge Tim Fox’s attempt to order Attorney General Leslie Rutledge to try mediating a solution to Arkansas’ illegal birth-certificate procedures.

Hamlin said mediation by its nature offers a way to reduce conflict between opposing litigants, which appeals to his nature as a peacemaker.

“I was the type of kid on the playground who didn’t pick fights,” he said. “I was the one who usually got into the middle, and I would try to break up the fight.”

Hamlin was a civil litigator specializing in taking cases to trial when he first happened to hear about the burgeoning field of mediation at an American Bar Association meeting in Chicago in 1988.

On the plane ride home, Hamlin said he had resolved himself to offer the procedure to Arkansas clients, which he began to do part time in 1992, after time studying, training and working with experts in the field.

The next year, the Arkansas Legislature, hoping to encourage courts to adopt the procedure, codified an alternative dispute resolution program.

Soon, Hamlin was well into a practice that had become solely devoted to alternative dispute resolution, chiefly mediation. He founded Hamlin Dispute Resolution LLC with offices in downtown Little Rock in 1998. The six-mediator firm, with a branch office in Memphis, handles cases all over Arkansas and five neighboring states.

Because litigants directly participate in mediation negotiations, the procedure offers them much more control over the outcome of their disputes than they can typically get from leaving the resolution up to a judge or jury, Hamlin said.

Mediation has been steadily growing in popularity, advocates like Hamlin say. He credits that to Arkansas’ two law schools that offer courses in the procedure, raising awareness about the benefits to generations of future lawyers and judges.

The courts keep few statistics on how often mediation is used to resolve disputes. However, figures show that the number of certified mediators in the state has increased fourfold over the past two decades, rising from 50 in 1999 to about 400

in 2017, although only about half that number are active in the field.

Mediators do not have to be lawyers, although to be court-certified through the state Alternative Dispute Commission, which regulates mediators, they have to have at least a bachelor’s degree to handle family law cases and a master’s degree to handle civil litigation. With very few exceptions, judges can appoint only certified mediators.

Pulaski County court records show that in 89 cases there was at least an attempt at mediation in 2017, up from 56 in 2016, although there could be many more cases using the negotiation procedure since there are very few reporting requirements.

WHY PEOPLE LIKE IT

In Arkansas, mediation is available to resolve civil disputes, like personal injury and wrongful-death cases, divorce and issues related to child custody. The dispute commission offers the federally funded Arkansas Access and Visitation Mediation Program (website www.araccess.org) to provide services in child custody cases at a reduced rate based on parents’ income.

One of the procedure’s most notable successes in Arkansas is the $45 million Marlboro Lights settlement reached last year that ended 14 years of litigation and paid almost 20,000 claimants between $400 and $8,000 each. Arkansas was the only state to settle with the cigarette manufacturer.

In some circumstances, mediation can allow participants to avoid going to court, but most often it’s used to resolve legal disputes already before the court, saving money, easing the court caseload and generally leaving the opposing parties in a better state of mind, mediators and attorneys said.

“I have been an attorney for over 32 years now, and I can honestly say that when we reach a successful mediated agreement, both sides of the case shake my hand and express their appreciation,” Fayetteville attorney Scott Smith said. “They even walk to their cars together and actually talk.”

Bentonville attorney Eldon Cripps said he wanted to become a mediator after he saw it work as an attorney in domestic-relations cases for more than 27 years.

“It is satisfying seeing people resolve their disputes, and helping them navigate that settlement without a judge having to tell them how it will be resolved,” Cripps said.

Ray Fulmer has been involved in mediation while representing clients. Fulmer was the trustee for the estate of Veg Liquidation, which was Allens Inc. The bankruptcy case was resolved earlier this year through mediation with a $4.8 million settlement.

“A good mediator tells both parties the strong points of their cases, but also emphasizes the weak points,” Fulmer said.

Mediation is about finding common ground, he said. For example, a person’s relative dies during a surgical procedure and being objective about that is hard.

“It may take a third party to say, ‘Your relative had a bad heart that led to the results,’” he said.

SAVING TIME, ENERGY

Fox, a lawyer for 35 years and a circuit judge since 2003, is a longtime proponent of the practice and has become a visible advocate, given that he orders every civil litigant in his court to try the procedure.

Although mediation has been available to the courts for 24 years, judges have had the authority to order parties to try it only since 2003, when the Legislature passed Arkansas Code 16-7-202. The statute is part of the “dispute resolution processes” of the judiciary as outlined by the Legislature.

It mandates judges to “encourage the settlement of cases and controversies pending before it by suggesting the referral of a case or controversy to an appropriate dispute resolution process agreeable to the parties.”

The law does allow exceptions to the requirement, for example, when one side can show a compelling reason not to use mediation. The law gives the judge leeway in determining that compelling reason, but the only one specifically described in the statute is when one side cannot afford the costs of mediation.

Fox, in a hearing last year, said his intention is not to force either side to settle their differences outside the courtroom. But by its nature, mediation can establish “meaningful dialogue” between the opposing parties, and that result is always beneficial whether their differences are resolved inside or out of the courtroom, Fox said.

At least, it can streamline the actual trial to make sure the proceeding is run as efficiently and arguments are presented as clearly as possible so as not to waste jurors’ time, the judge said.

“We save time and energy for every single person involved,” Fox said.

Fox said that for the mediation process to be effective, the participants must have the authority to make decisions, grant concessions and present guarantees. Otherwise, the mediation is useless, he said.

Washington County Circuit Judge Cristi Beaumont advocates for mediation when possible.

“They can always come to me and ask to be relieved of that obligation, and I will look at the case and the circumstances and determine it based on that,” Beaumont said. “But I’m a big proponent of mediation. I think it’s extremely useful and helpful in the justice system.”

Not every judge agrees that mediation should be required. Benton County Circuit Judge Doug Schrantz said he doesn’t force any parties into mediation but orders it when attorneys request it.

ATTORNEY GENERAL DISPUTE

Fox’s dispute with Attorney General Rutledge, a Batesville Republican who is seeking a second term, began in October when he ordered her to personally participate in mediation to resolve the state’s birth-certificate procedures, which had just been ruled illegal by the U.S. Supreme Court.

In June, the court found Arkansas’ procedure unconstitutional because it treats samesex and opposite-sex parents differently.

The issue had reached the nation’s highest court through a July 2015 state court lawsuit challenging Arkansas’ gender-based procedures for listing parents’ names on birth certificates.

A month after the Supreme Court legalized gay marriage nationally, three same-sex married couples in Pulaski County sued to have both parents’ their names on their children’s Arkansas birth certificates.

Fox sided with the parents, and in his ruling, he eliminated the gender-specific portions of the law that used the terms mother, husband and father. The attorney general appealed that ruling, and the Arkansas Supreme Court overruled Fox’s ruling in December 2016, which led to the appeal to the federal high court.

The U.S. Supreme Court returned the litigation to the state justices, who in turn sent the lawsuit back to Fox in October to figure out a way to get the certificate laws up to constitutional standards.

Fox then ordered the sides to try mediation, stating that the conditions set by the Arkansas Supreme Court on such a resolution left him with no option but to shut down the birth-certificate system unless the parties could find another solution. The judge set a Jan. 5 deadline for the sides to reach an agreement before he had to act.

Rutledge did not object to mediation, but her staff asked that she not be required to attend the bargaining sessions, citing her busy schedule.

Fox slightly eased the conditions of her attendance but declined to fully release her, citing the “rare” circumstances of the case and the “critical importance” of reaching a timely solution before the program had to be shut down. Fox stated that he would not have ordered Rutledge to participate unless he thought she had an important role to play in reaching a solution.

“This court has never, in any previous case, believed the scheduled requirement of the actual physical presence of the Attorney General, as an attorney of record, to be critical to ensuring the best possibility of successful completion of a mediation,” the judge wrote. “It, however, does believe that is the case in the present matter.”

Rutledge subsequently appealed the order to the Arkansas Supreme Court, questioning whether a judge had the authority to compel constitutional officers such as herself to participate in mediation.

Rutledge also stated that the sides had come to a resolution but that Fox refused to implement it and had said that their solution was beyond his authority to implement. She asked the high court to force Fox to accept that agreement. The court has not yet ruled on Rutledge’s petition.

Faced with further delay, Fox withdrew his mediation order and barred the state from issuing birth certificates until the Legislature could rewrite the statute to get it into compliance with the Constitution.

The prohibition lasted only a couple of hours before Gov. Asa Hutchinson issued an executive order requiring that the language at issue in the statute be read as gender-neutral.