An Overview of State Dispute Resolution Programs

A report prepared for the Policy Consensus Initiative by Jill Purdy, Ph.D.

July 1998

This report provides a summary of information about state dispute resolution programs. Three key questions are focused upon:

  • Where are state dispute resolution programs located?
  • How are they funded?
  • How is support built for these programs?

Introduction

In spring of 1998 the Policy Consensus Initiative identified some 37 organizations that could be considered statewide providers of conflict resolution services. Surveys were sent to these programs to gather information about their missions, clients, services, and funding. Thirty of the programs contacted (81%) identified themselves as statewide dispute resolution programs and returned completed surveys. These thirty programs are located in twenty-seven different states; three states have two programs each. Appendix A contains a complete listing of the programs that are the focus of this research.

History of State Dispute Resolution Programs

Conflict resolution techniques such as mediation and facilitation have long been used to resolve disputes. In the early 1980s, government leaders recognized a need for public dispute resolution services to assist in resolving state-level disputes including public policy, environmental and judicial matters.

An important impetus for establishing statewide dispute resolution programs came in 1983 with a funding program created by the National Institute for Dispute Resolution (NIDR), a nonprofit foundation. NIDR offered matching funds and technical support to encourage state governments to design and create mediation providers that were publicly funded and sanctioned. A primary goal for these dispute resolution programs was to encourage state governments to use collaborative approaches in resolving public policy disputes. Four programs were created in 1984 and 1985, located in Hawaii, Massachusetts, Minnesota and New Jersey. NIDR continued funding new state dispute resolution programs until 1994. A total of twelve programs were developed with support from NIDR.

Interest in dispute resolution at the state level emerged from the judicial sector at approximately the same time. The American Bar Association (ABA), judges and attorneys developed an interest in using non-judicial dispute resolution techniques to resolve conflict justly and to expand the capacity of the justice system. Three dispute resolution programs were created in the judiciaries of Colorado, Maine and Oklahoma in 1982 and 1983. These programs were housed in court administrators’ offices and serve the state courts by providing dispute resolution services for certain disputes that have entered the legal system. The ABA’s Section on Alternative Dispute Resolution continues to advocate the development of dispute resolution programs to ease the burden on the judicial system.

In recent years, the dispute resolution tools available to state government leaders have expanded to encompass a wider range of collaborative problem solving processes. The dispute resolution programs that have developed in the states offer a wide range of conflict resolution services.

Chronology of Program Development

Figure 1 shows the chronology of state dispute resolution program founding. New programs have been founded fairly consistently over the last fifteen years. Growth has stepped up in the past two years, with seven new programs founded since 1995. As of June 1998, eight new programs in eight states are currently in various stages of development (see Appendix B).

Activities of the State Dispute Resolution Programs

Programs can generally be grouped into two categories: service centers and resource centers. At service centers, staff members provide dispute resolution services by working directly with public officials to identify disputes and assist in their resolution. In contrast, resource centers provide information and expertise but do not directly mediate disputes. For example, resource center staff may develop certification standards for mediators and provide clients with a roster of qualified mediators rather than mediating disputes themselves. Resource centers may also design conflict resolution systems and provide the infrastructure for state agencies to develop their own conflict resolution systems. Both service centers and resource centers may offer public education about conflict management and dispute resolution training.

Typical activities of programs are listed below. The scope of activities varies from state to state depending upon the program’s mission and funding.

  • Mediation of Disputes
  • Facilitation of Meetings
  • Conflict Identification and Assessment
  • Dispute Resolution Process Design
  • Public Education about Conflict Management and Dispute Resolution
  • Mediator Training
  • Mediator Certification
  • Case Management
  • Dispute Resolution Research and Assessment
  • Developing Dispute Resolution Programs in communities, state agencies, etc.
  • Promoting the Use of Dispute Resolution in a Variety of Public Disputes
  • Supporting Dispute Resolution Programs in other parts of government and in other states

Types of Disputes Resolved

The most common areas of practice for the state dispute resolution programs are civil court cases, environmental issues and public policy disputes. Beyond these general areas of practice, many programs assist with dispute resolution in a variety of areas. Programs reported dealing with conflicts in the following areas:

  • Divorce and Child Support
  • State Agency disputes
  • Agriculture
  • Transportation
  • Human Rights
  • Special Education
  • Housing
  • Welfare
  • Healthcare
  • Criminal Court Cases

Location of Dispute Resolution Programs

State dispute resolution programs are a unique group of organizations in that their structures vary widely from state to state. While national organizations have assisted in the startup of some state programs, supporters within the state have typically designed each office based on the needs of the state and its political climate. Most state programs are housed within state government, although a few operate independently (see Table 1). Of the twenty-eight programs housed within state government, six programs are located in the administrative branch (21%), fifteen in the judicial branch (54%) and seven in the state university system (25%). Two state dispute resolution programs are registered as independent 501-C-3 organizations and are not part of state government. However, both of these programs work closely with state government and receive state funding through contracts and fees for services.

The institutional location of a state dispute resolution program influences its mission and activities. For example, programs located in the administrative branch are most likely to work on public policy disputes, serving state agencies, legislators and the governor’s office. Similarly, programs located in the judicial branch primarily provide dispute resolution services to state courts (although more than half also contribute in some way to conflict resolution in other areas of state government). The programs housed in universities are more likely to engage in activities relating to research and assessment of dispute resolution activities, and also tend to be more focused upon a specific category of public concern such as environmental disputes. Independent programs assist in a variety of statewide disputes that involve matters of public interest.

Based upon the pattern of development for recent state dispute resolution programs, momentum appears to be building for programs to be housed in the judiciary. A key reason is that the judiciary has support from national groups including the ABA Section on Alternative Dispute Resolution, the State Justice Institute and the National Center for State Courts. However, centralized, national support for dispute resolution in non-judicial locations ended when NIDR ceased supporting state programs in 1994 until 1997 when the Policy Consensus Initiative was formed.

Program location can bring with it problems of ownership. Because of the importance of impartiality and non-partisanship in public dispute resolution processes, state dispute resolution programs must be perceived as being equally accountable to all of their constituents. A number of states have chosen state universities as the location for their programs because they are not directly linked to a single branch of state government. However, a university location may create perceptions of remoteness or concerns that the program is not designed to serve the needs of a particular branch of government. For example, judges may be reluctant to use a dispute resolution program that is not under the control of the judiciary. Similarly, elected officials, state employees and citizens may be reluctant to use a program housed within the judiciary to resolve disputes that have not entered the court system.

Legal Authorization of Dispute Resolution Programs

Table 2 shows the methods by which the thirty currently-existing programs are authorized by state governments. Twenty-one programs in nineteen states have enabling legislation that supports or mandates the programs’ existence. Six programs currently operate without any authorization from state government.

Although legislation is the most common way of supporting a state dispute resolution program, it is important to note that eight of the programs currently authorized by legislation began operating prior to the creation of that legislation.

Funding for State Dispute Resolution Programs

Two-thirds of the state dispute resolution programs are funded by state government through general fund appropriations. However, none of the programs subsist on state funding alone. Direct state support ranges from 25% to 85% of total annual budget. In two states, the legislatures provide an operating budget but require that the program repay its budget with funds it generates. Three programs reported receiving no funding in any form from state government.

Additional sources of funding are listed in Table 3 with the number of programs utilizing each type of funding. Most state dispute resolution programs reported three or more sources of funding. Many report different sources of funding from year to year, which is explained in part by the limited terms of many grants and contracts. Budgets for state dispute resolution programs are uncertain in comparison with many other state-funded programs despite the fact that a majority are legislatively mandated. The total annual budgets of the state dispute resolution programs range from $30,000 to $1,600,000 with a median of $400,000.

Building Support for a State Dispute Resolution Program

Because no single model for state dispute resolution programs exists, the individuals who have supported the development of the programs vary widely from state to state. One common theme is that most state dispute resolution programs cited dispute resolution practitioners (including private mediators, attorneys and academics) as influential in the founding of their program. Another pattern is that public officials from the branch of state government where the program is now located were usually influential in creating the program. Programs housed in the judiciary typically cite the Chief Justice as influential along with judges, attorneys and administrative officers of the court. Programs housed in the administrative branch of government are likely to cite the governor and his staff as well as state legislators. Programs housed in universities mention university administrators, faculty and legislators as influential.

In identifying their current sources of support, respondents most commonly cited the governor, heads of state agencies, supreme court justices, and legislators. About half of the existing programs report that they feel politically supported by state government. In addition, many of the programs felt that their staff or commission members and clients were influential in gaining support and recognition for the program.

The Need for Centralized Dispute Resolution Within States

One challenge facing state-level dispute resolution is the limited focus of many programs as a result of the institutional location of the program. While many programs have tried to broaden their efforts, most of the state dispute resolution programs have a primary focus on either judicial issues or public policy issues. One explanation is that the dispute resolution needs of the legislative and executive branches are different from the dispute resolution needs of the judicial branch. The legislative and executive branches are more likely to need assistance with large-scale public disputes that involve multiple parties and require months or years to resolve. The judiciary has more need for a dispute resolution system that can handle a high volume of court referred-cases that involve fewer parties and can be resolved more quickly.

Another explanation is that the branches of government may have perceptions about the best time to involve dispute resolution professionals. Some government leaders prefer to use dispute resolution processes when policies are being developed, while others prefer to use disputes resolution later, when laws are being interpreted and policy is tested.

The success of the programs studied here suggests that dispute resolution processes can be used effectively at any time in the democratic process. State dispute resolution programs should be designed according to the needs of the state, but should be viewed by all branches of government as important partners in collaborative problem-solving and democratic governance.

Conclusion

The state dispute resolution programs provide conflict resolution services to state government efficiently because they provide convenient access to a relatively scarce commodity, namely dispute resolution expertise. Centralizing dispute resolution services in the form of a state program provides more capacity for resolving conflict due to economies of scale and creates a critical mass of experience that improves the resolution of disputes. Finally, state dispute resolution programs help establish a culture of using collaborative means to resolve public disputes across all branches of state government.