The Oregon Supreme Court is in a dream world. This unfortunate court is totally disconnected from reality.
‘Bulletins’ is taking a look at the Oregon Supreme Court’s Four year Strategic Plan. The analysis is whether the State Top Court’s plan has practical use to the citizens of this fair state. We have looked at Goal # 1 and Goal #2. Now we are on to Goal # 3 which has to do with a useful subject: Alternate Dispute Resolution which means arbitration and mediation.
I am truly dumbfounded. Here is the Oregon Supreme Court’s Goal # 3:
- "Offer the full range of dispute resolution options to resolve cases before trial".
This is the problem -- Almost all arbitration and mediation forums are provided outside of our court systems. What is worse; the Oregon Supreme Court itself provides no arbitration or mediation options. Worser still, the Oregon Supreme Court does not track either mediation nor arbitration results in their Annual Performance Progress Report. So, I again ask a question asked before: “How do we know when we get there -- to the Goal#3 prescribed by the Oregon Supreme Court for themselves?”
A Primer in Alternate Dispute Resolution Systems
As pointed out before, arbitration of business disputes has been around forever. Oregon and Oregon courts became enamored with mediation in the early 1980’s. Many courts instituted mediation into their small claim and eviction courts. Portland and Beaverton created neighborhood mediation programs to resolve local disputes over a variety of subjects. Mary Forst was going to save the world through the peaceful resolution of disputes through collaborative processes. These programs were wildly successful and loved by citizens because it took the intimidation out of the dispute resolution business. The shiny, smiling faces of your friendly local mediator (and arbitrator) started appearing in local yellow page ads. (Most of these are burnt-out lawyers or lawyers whose practices were failing)
Oregon began professionalizing mediations through the Oregon Dispute Resolution Commission which was created by statute in 1989. Private organizations such as the Oregon Mediation Association formed in the late 1980’s. The Oregon Court of Appeals Settlement Conference Program began in 1995.
Then something incredibly bad happened. Turf wars developed and the whole subject of alternate dispute resolution became bureaucratized and splintered. Now there is a blizzard of misnomered organizations divided between the private sphere and various state agencies. But, none are controlled by the Oregon Supreme Court. None of the myriad of alternate dispute resolution programs throughout the state are reported on in the Oregon Supreme Court’s “key performance measures” annual report.
Indeed, even the Oregon court-diverted arbitration and court voluntary mediation systems are not reported on anywhere in the Oregon Supreme Court “Annual Performance Progress Report" (APPR). The Oregon Dispute Resolution Commission, which ostensibly was a unifying force for mediation and arbitration in Oregon went out of business in 2003.
But something even worse happened. Mediation stagnated and is still confined to small disputes in the court systems throughout the state. That is why the Oregon Supreme Court is living in a dream world. They exercise no control over alternate dispute resolution in this state. They do not keep track of alternate dispute resolution in their statistics and reports. Who are they kidding? They don’t care about providing the citizens of Oregon with timely and efficient dispute resolution. They only care about their court “emergency rooms” where judges routinely perform litigation's surgery on innocent victims -- the citizens of the State of Oregon.
There is neither cohesion nor central organizing authority for alternative dispute resolution in the State of Oregon. There are dozens of organizations with weird names providing dispute resolution services. The problem is that a normal citizen would have no idea where to start to find a mediation program to resolve their particular dispute. There is no uniformity as to programs or people providing the services.
How, for example, would you decide whether to use one of the following forums available in this state?
- Oregon Consensus Program
- Oregon Department of Justice ‘Appropriate Dispute Resolution”
- Oregon Solutions Network
- Oregon State Agency Dispute Resolution Program
- Oregon Mediation Association
- Oregon Office for Community Dispute Resolution
- Resolutions Northwest
- The Association for Conflict Resolution
- Oregon State Bar Alternative Dispute Resolution Section
- Victim Offender Mediation Association
- National Policy Consensus Center
- Rural/Urban Solutions Center
- Policy Consensus Initiative
- Oregon Consensus Neutrals Network
- American Arbitration Association
- U.S. Arbitration and Mediation Service
- Arbitration Forums, Inc.
The list could go on to twice this length if all the individual community or state agency based alternative dispute resolution programs were separately identified here. The Oregon Supreme Court has no responsibility for any of these programs nor do they care. Goal #3 is pure eyewash.
And here is the final irony. The Oregon Supreme Court has ceded total control over mediation and arbitration in Oregon to the Dean of the University of Oregon Law School under Oregon Revised Statute 36.135:
36.135 Review of dispute resolution programs; suspension or termination of funding. The Dean of the University of Oregon School of Law shall periodically review dispute resolution programs in this state. If the dean determines that there are reasonable grounds to believe that a program is not in substantial compliance with the standards and guidelines adopted under ORS 36.175, the dean may suspend or terminate the funding of the program under ORS 36.155 and recover any unexpended funds or improperly expended funds from the program. [1989 c.718 §8; 1995 c.781 §31; 2003 c.791 §12; 2005 c.817 §4]
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