Virginia ADR Joint Committee Has A Rich History (Part I)

By Lawrence H. Hoover, Jr.
Virginia ADR, Spring 2003

When the Virginia Bar Association and the Virginia State Bar decided in June, 1986 to form a Joint Committee on Alternative Dispute Resolution there was already a major ADR initiative underway in the state. Earlier that year, Kent Sinclair, professor of law at the University of Virginia Law School, had asked the Virginia Law Foundation to fund the establishment of a Virginia Dispute Resolution Center. The newly organized Joint Committee, chaired by Ed Burnette of Lynchburg, supported this proposal and took on the establishment of the Center as one of its two initial projects. The other project was to seek the funding and establishment of a pilot dispute resolution center in Richmond.

Dispute Resolution Centers
The Law Foundation approved the grant application and the two centers were funded in the amount of $60,000 in early 1987. The Dispute Resolution Center was located in Charlottesville and directed by Rich Balnave, law professor at the University of Virginia Law School and managed by the Joint Committee. The Charlottesville Center first did an intensive survey of the dispute resolution providers that were already operating in Virginia (approximately 50, more than half of whom were mediators in Juvenile and Domestic Relations Court Services Units) and then undertook its mission as a clearinghouse for all dispute resolution programs in Virginia and as coordinator of the training and education of Virginia lawyers. The Center published the first Directory of Virginia Dispute Resolution Providers.

Working through Virginia CLE, Rich Balnave organized and moderated Virginia’s first CLE on Alternative Dispute Resolution, presented at four locations in October, 1987. The half-day survey course covered an overview of ADR, problem-solving negotiation and mediation, arbitration, mini-trials and private judging. This state-wide exposure helped identify lawyers throughout the state that were already involved in ADR or were interested in getting involved and helped identify persons who ultimately became members of the Joint Committee.

The Dispute Resolution Center in Richmond was started in 1987 as a joint project of the Joint Committee and the Better Business Bureau. Directed by Karen Donegan-Salter the Richmond Center joined several other community centers already established in Virginia, using trained volunteer mediators to resolve a variety of disputes and offering training in mediation skills to the public. The Harrisonburg and Richmond centers also established conflict resolution programs in the public schools and trained teachers throughout the state who were interested in developing these programs.

The Carrico Initiative
As these initiatives were getting underway Virginia Supreme Court Chief Justice Carrico began a process that was to eventually expand significantly the acceptance and use of ADR in Virginia. In l987 he appointed a 34-member Commission on the Future of Virginia’s Judicial System, which presented its findings in May, 1989. The Commission made several recommendations encouraging the development of alternative dispute resolution processes both within the court system and by community-based providers. The Commission also urged the creation of an Office of Alternative Dispute Resolution Services. The Joint Committee began working with the executive branch to implement the Commission’s recommendations and sent its own recommendation to the Secretary of Administration to establish a state-wide office of dispute resolution. The main aspects of the Commission’s recommendations were supported by the Judicial Council and the Virginia Assembly on the Future of Virginia’s Courts, sponsored by U.Va.’s Center for Public Service.

Legislative Activity
Legislative activity dominated the Joint Committee’s agenda the next few years, during which the membership grew from eight to twenty-one by the end of 1990. A legislative subcommittee, chaired by John Murray, promulgated a draft of a statute in l990 which defined ADR processes and authorized judges to refer litigants to an appropriate process (generally known as the “referral statute”). Then in early 1991 the Virginia General Assembly enacted HJR 435 in which it requested the Joint Committee to examine the feasibility, advisability and cost-effectiveness of developing mandatory nonbinding arbitration in Virginia’s court system.

Joint Committee member Wayne Powell took on this project, secured grant funds, hired a support staff and, working with an ad hoc committee of the Joint Committee, finished the study and report as requested in time for consideration by the 1992 VGA. The Joint Committee also submitted its proposed referral legislation and secured the sponsorship of Delegate James Almand, Chair of the House Courts of Justice Committee. The proposed legislation was the subject of a hearing before the House Courts of Justice Committee and was carried over to the 1993 session. The nonbinding arbitration pilot project legislation was not introduced.

ADR Goes Statewide
Meanwhile, the Joint Committee was continuing to support the establishment of the statewide ADR office in the administrative office of the Supreme Court, which was funded in early 1991. Barbara Hulburt was selected as the first director of the Supreme Court’s Department of Dispute Resolution Services (DRS) in March, 1991. Barbara played a key role in developing and advocating for the adoption of the referral statute. She also began assuming the ADR clearing house responsibilities and the educational function that had been so ably handled by Rich Balnave and the Virginia Dispute Resolution Center in Charlottesville. Members of the Joint Committee played key roles in the development and work of DRS, serving on DRS committees and assisting with the development and presentation of CLE programs on ADR and production of a Virginia Lawyer’s ADR Guide.

The referral statute was passed by the General Assembly in 1993. Issues raised by the Virginia Trial Lawyers and the VSB Family Law Section and by individual lawyers were dealt with and changes were made in a series of negotiations attended by representatives of the Joint Committee, DRS and the legal groups involved. The legislation not only established a procedure for referral by courts to a dispute resolution process, it also defined the various dispute resolution processes, provided for the qualification of neutrals, outlined the system of certification of mediators, established standards and duties of neutrals and confirmed the confidentiality of the processes.