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ADR: Paths to Settlement

Resolución Alternativa de Disputas: Vías a la conciliación

Welcome to the Court's Toolbox!

A drawing of a tool box with tools​This area provides resources for state courts. Here you'll find ideas and practical information that will help you to BEGIN, ENHANCE or EXPAND court-connected ADR programs. The "tools" include guides and manuals, checklists, sample forms, procedures, policies, innovations, best practices, and more!

“One Size Does Not Fit All”

New Mexico is a diverse state with limited resources. There is no need for courts to "reinvent the wheel" when starting a new service or program, but there is a need to tailor programs and services to fit the specific needs of the community that the court serves. This toolbox supports local court initiatives by providing resources that can be easily modified. Use the Toolbox as a springboard for learning and discovering what will work best for your court.

A Quick Start Guide for Courts

This Guide provides a brief overview for courts to assist in the development of a mediation service or program. This overview is a reference tool, designed to illustrate a few options for constructing a court-connected service, and is not intended as an exclusive or exhaustive plan. The Guide provides a starting point from which to build, and is (or will be) linked to a library of materials, including sample brochures, forms & documents, guidelines, specific techniques, a list of court ADR experts available to assist, and other useful reference sources.


"Ready, Get Set, Go!"

Get Set... Constructing the program parts, using how a case proceeds as a framework;

"Get Set..." - Build the Program Parts

  1. Case Flow: Create a case flow chart

    Task:  Identify how a case will proceed through the mediation program and what administrative services are required along the way.

  2. Detail the Case Flow Steps: What has to happen and when?

    Task: Detail each procedural step, including a description of what needs to be accomplished, who is assigned to do the work, and what forms, documents, and tools are needed.

    1. How are cases submitted to the program? - Do parties apply, judges refer, and/or are cases identified by anb objective criteria, such as when the answer or response is filed, or by the passage of a specified period of time, etc.?

      Forms, Documents, Tasks, and Staff to consider: Party application form, judge referral form, Odyssey or other procedures identifying cases by a particular criteria.

    2. Which submitted cases are accepted for mediation services? - Are all submitted cases accepted for mediation? Are submitted cases reviewed against a criteria for selection?

      Forms, Documents, Tasks, and Staff to consider: If there is a review, who conducts the review and what are the criteria for selection?

    3. How is a case referred to mediation? - Is an Order of Referral entered or is another procedure used to signify that a submitted case has been referred for mediation?

      Forms, Documents, Tasks, and Staff to consider: An Order of Referral

    4. How is a mediator assigned to a case?  - Are mediators randomly assigned? Are mediators custom-selected for a case and, by whom and by what criteria? May a party or the judge request a specific mediator?

      Forms, Documents, Tasks, and Staff to consider: A list of mediators. A procedure and criteria for assigning a mediator. A method for tracking distribution of cases among the mediators.

    5. How are selected cases scheduled (date and time)? - Are set time slots designated for mediation and are cases assigned to a designated slot? Are cases individually set for a specific date and time? Do the mediators set the time, particularly if the mediation is to be held offsite?

      Forms, Documents, Tasks, and Staff to consider: A scheduling policy and staff assignments.

    6. What locations are assigned to each case? - Are services performed within the court facility, offsite at a party's or the mediator's location, or where? How is the availability of a particular location known? How is a location reserved for a mediation?

      Forms, Documents, Tasks, and Staff to consider: List of locations, a scheduling procedure, and staff assignments.

    7. What fee, if any, will be charged to the parties for the mediation services? - How will the mediators be compensated?

      Are mediators paid, volunteers, or some of each?  Are fees a set amount, based upon a sliding fee scale, or based upon an hourly rate? Is there a per-case cap to the fee? Who determines the fee and by what criteria?

      Does the court collect and distribute the fees? If so, does the fiscal department need to be involved in setting up a procedure? Or, are the fees paid directly to the mediator?

      If there are various types of fees which can be assigned to a case or to a party, then how are the assignment of cases among the mediators made to fairly distribute cases with different fee types?

      Forms, Documents, Tasks, and Staff to consider: A procedure and criteria for determining what fee a party should be charged. A procedure and criteria for how cases with different assigned fees are distributed among the mediators.

    8. How are the parties and the mediators notified of the date, time, and location for the mediation? - Notice of a mediation session needs to be a formal as a notice for a regular court hearing. The practice will help secure attendance and will provide a basis for enforcement of compliance.

      Forms, Documents, Tasks, and Staff to consider: A Notice of Mediation Session and determination of a minimum period for advance notice.

    9. What materials for mediators are needed on the day of mediation? - The mediators/mediation room should be supplied with:

      1. Essential Case Pleadings, including the Complaint and Answer
      2. Agreement to Mediate, Confidentiality Agreement
      3. Mediated Settlement Agreement
      4. Outcome Report
      5. Paper and pencil for party note taking (optional)
      6. Water, tissues and small snacks (optional)
      7. Contemplate other needs of the parties and the mediator

      Forms, Documents, Tasks, and Staff to consider: Determine what forms need to be drafted and by whom. Determine who will assemble and place materials in room or provide them to the mediators.

    10. What staff assistance is needed on the day of mediation? - Staff support is needed to:

      1. Prepare the mediation room
      2. Provide a method for parties and mediators to check in
      3. Provide a method for parties and mediators to be directed to the mediation room
      4. Be available to make copies
      5. Be available to provide forms and to answer questions
      6. Be available to file and process documents
      7. Assist with security situations
      8. Clean up mediation room afterwards
      9. Consider additional assistance that may be needed to support the mediation process

      Forms, Documents, Tasks, and Staff to consider: A list of tasks to perform on a mediation day and staff assignments

    11. How is a mediation session completed? - There are details for completing a mediation, including:

      1. What documents do the mediators give to the court staff?
      2. How does the staff process the documents?
      3. What follow-up is needed, such as scheduling another mediation session, and who performs the task?
      4. What data from the session, such as outcome and duration, demographics, etc., is collected and entered by the court staff?  How and by whom?
      5. How is the case processed based upon the outcome for mediation, such as being dismissed or set for trial?  Who determines and performs the appropriate process?
      6. Consider other details that are necessary for the completion of the mediation process in order to benefit the court

      Forms, Documents, Tasks, and Staff to consider: A list of tasks to complete a mediation session and staff assignments.

    12. How are referrals to mediation and case status tracked? - From submission of a case for a referral to mediation, to the conclusion of mediation services for a case, a method to track cases status is recommended.

      Forms, Documents, Tasks, and Staff to consider: A method for periodically reviewing case status, a procedure for handling any issues regarding the status of a case, and the necessary staff assignments.

  3. Confidentiality Policy: What can be told or be seen?

    Task: Determine the confidentiality policy and practices for the program.

    Discussion: A core feature of mediation is that communications related to the mediation are confidential. The Mediation Procedures Act, Section 44-7B-2 (NMSA 1978), governs all court-connected mediation services, unless the opt-out provisions of the Mediation Procedures Act are invoked. Note that the definition of "mediation communication" is broad, such that confidentiality applies to statements made during a mediation session.  Information known to the mediation program staff and information contained within the mediation program files MAY also be confidential. Therefore, there are practical considerations for the conveyance of information to Judges, non-program court staff, attorneys, and other persons who were not present during the mediation session.

    Forms, Documents, Tasks, and Staff to consider: A clear, written policy regarding disclosures of information shared in the context of a mediation session.

  4. Evaluation: How is the program doing and what improvements can be made?

    Task: Establish a method for periodically reviewing the data collected by the mediation program, such as outcomes, and a method for periodically receiving feedback from mediation parties, mediators, mediation program staff, judges, non-program court staff, attorneys, stakeholders, the public, and others.

  5. Summary Plan Documents: Is the court properly prepared to begin a mediation program?

    Task: Review the checklist, below, to ensure the completeness of the court's preparation. These items can also serve as the beginnings of an operations manual.

    1. List & Description of procedures and policies
    2. List & Description of court staff assignments
    3. List & Descriptions of documents and forms
    4. Checklist for each step
    5. Identify any additional items or tasks necessary
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