An ADR Pioneer And Innovator Speaks Out On ADR's Progress

Wednesday, August 1, 2007 - 01:00

Judge Frank G. Evans served nearly 20 years on the First Court of Appeals in Texas, serving as Chief Justice from 1981 until he retired in 1990. He served on the original American Bar Association Committee on Alternative Dispute Resolution and was the founding chair of both the Houston Bar Association Committee on ADR and the State Bar of Texas ADR Committee. Named one of Texas' 100 Legal Legends in the Texas Lawyer's 2000 Commemorative Issue: A Century of Texas Law and Lawyering, Judge Evans recently received special commendation from the State Bar of Texas Board of Directors "for his indispensable work on the front lines of our legal system, providing improved access to justice for tens of thousands of people." Judge Evans periodically sits by assignment as a visiting judge and performs private ADR services as a mediator, arbitrator, conflict resolution consultant, and Special Judge. He is widely regarded by the Texas legal community as the father of Alternative Dispute Resolution in Texas. The State Bar of Texas ADR Section has created the "Frank G Evans Award," which it periodically presents to a worthy recipient for conspicuously valuable service in the field of ADR.

Editor: Judge Evans, would you tell us how you became interested in ADR?

Evans: It happened largely because of a conversation Bob Dunn, then President of the Houston Bar Association, and I had with then Chief Justice Joe Greenhill of the Texas Supreme Court in the late 1970's. Judge Greenhill had attended a conference of judges and lawyers in another state, which was focused on finding new ways to reduce court backlogs and to make justice more readily accessible to the people. As a result of that conversation with Chief Justice Greenhill, Bob Dunn named me the chair of a Houston Bar Committee on ADR to investigate the possibility of establishing a dispute resolution center in Houston.

Editor: How did the Texas Dispute Resolution Center funding statute and the ADR Procedures Act come about and why were they important to the people of Texas?

Evans: The funding statute, which was enacted in 1983, was important because most of the dispute resolution centers we visited across the United States were having the same problem, a lack of monies for sustainable operation. Our first major challenge was to find some ongoing source of funding that would enable dispute resolution centers to keep their doors open and continue to serve a public function. The funding mechanism we arrived at was the same type which had been used to fund the costs of law libraries and juries, namely a small tax on each civil case filed. Enabling legislation authorizing County Commissioner Courts to impose this tax was passed and signed into law by Governor Mark White in 1983.

The second statute, the Texas Alternative Dispute Resolution Procedures Act, came about because of the need for a statutory mechanism to encourage the use of mediation and other ADR processes in civil litigation. It was designed to provide a procedural outline for the effective use of out-of-court settlement methods. Fortunately, we had the creative guidance and sponsorship of Senator Cyndi Taylor Krier of San Antonio, who is primarily responsible for the passage of this Act in 1987. In retrospect, I think this statute was an important milestone in Texas ADR, because in those days not many lawyers or judges were knowledgeable about the benefits clients could obtain from mediation or other ADR processes.

Editor: What were your expectations for ADR in Texas at the time the Act was passed?

Evans: Modest, really. I had no idea that mediation would become a professional career for many dedicated individuals conducting civil mediations, and I just assumed that future mediators would continue to be unpaid volunteers. I think we did have some general hope that the Texas ADR Act would encourage increased use of mediation and other ADR processes.

Editor: Texas seems to have been one of the early leaders in this area. Any thoughts as to why?

Evans: I think we Texans have always been a reckless, somewhat strange bunch; if something seems like a good idea, we just go after it. Also, we have been blessed with people like Chief Justice Greenhill and subsequent chief justices, as well as state bar presidents, boards of directors, local bar presidents and judges, who almost without exception have solidly supported the expanded use of ADR. It is that leadership which has made a difference and it is still making a difference.

Editor: In what ways has ADR developed in Texas and elsewhere that was not envisioned early on?

Evans: I don't think we had much vision in those days about the extended use of ADR. In those days we were concentrated on ways to use ADR to help people resolve their "small" disputes such as neighborhood disputes about barking dogs and other such problems. It wasn't long, however, before we began to realize that mediation could be effective in large disputes, and soon we found to our surprise that ADR would work in bankruptcy and intellectual property cases - even in tax disputes involving the I.R.S. Also, we found that ADR methods might be useful in resolving some kinds of issues in criminal proceedings and in helping parties settle cases on appeal. Over the years, we have found that ADR can be used in almost every category of civil dispute, although it may not always be the best process for a particular case.

Editor: What is online ADR (ODR) and how would one do it?

Evans: Before people had telephones and before they could fly around to see each other, they wrote letters to convey their feelings and ideas. I think we are rediscovering how effective the written word can be in resolving conflicts. So, our challenge is to develop good writing skills and to learn how to write in a persuasive manner. ODR, or Online Dispute Resolution, simply describes a means for conducting written communications over the Internet to negotiate the resolution of a dispute. In today's digital world this usually is done through some type of text messaging either alone or in combination with videoconferencing. In an ODR process, the mediator orchestrates the parties' settlement negotiations through confidential text messages that communicate their position statements, offers, responses, and explanations. It is usually possible in an ODR process for the parties, their attorneys, and the mediator to remain in their own office or home while participating in the online process. This feature obviously reduces the amount of time, cost, and stress involved in the process.

Editor: What has been your involvement with mediation in the schools? What has happened in this area?

Evans: It would be ideal, in my opinion, for schools to implement their mediation programs so that every student could participate in the program. This, in my opinion, would eventually result in a substantial reduction in the incidence of school violence and other unproductive behavior. Student mediators who have been trained to help other students resolve their interpersonal conflicts are better prepared to control their own anger and know how to resolve their own disputes without violence. Through their training and experience, the youth mediators gain a good understanding of effective conflict resolution practices that help them deal more effectively with problems arising after they become adults. Unfortunately, due to lack of funding or lack of understanding, many school administrators do not fully appreciate the real value of peer mediation programs. Our Center has worked with the Houston Bar, the State Bar, and with the Harris County Education Department to develop peer mediation programs in the schools including one alternative school and a juvenile probation institution

Editor: You have just come back from a trip to Panama. What is happening there with respect to ADR and what is your involvement?

Evans: Panama is entering a very exciting era. Because of the Panama Canal, Panama is at the center of a tremendous amount of maritime trade activity, including that which will result from the expansion of the Canal. Panama also has a beautiful eco-system, bordered on the North and the South by two different oceans. Panama's people also have strong ties to the United States. Panama faces some serious problems that are common to most countries in Central America. These problems, however, are susceptible to resolution by alternative dispute resolution procedures, and our relationship with Panama offers a real opportunity to develop and test some new and unique ADR protocols. In this regard, we have been working with the Panama Supreme Court, the Panama Canal Authority, the Panama Solicitor General, the Panama Attorney General, and other governmental representatives to devise new ADR systems for dealing with these problems. We have found these representatives to be very open and receptive to new ideas, and we are optimistic that a cooperative plan for sustainable development will be developed, which can then serve as a model for other governments and private institutions in Latin America.

Editor: What do you see happening in ADR in the next 10-25 years, in Texas or elsewhere?

Evans: Ups and downs will occur but ADR will continue to expand. Some say that ADR and arbitration prevent young attorneys from getting trial experience as well as alleviating the need for courts to write opinions that provide guidance to the public. My experience leads me to believe that we will always have the need for judges and arbitrators and that we have an ample number of appellate opinions to provide guidance to the public. Additionally, I understand that statistical evidence indicates no substantial increase in the number of settlements since the advent of ADR and that the only difference between then and now is that cases today are being settled earlier in the life of the litigation. I really can't say where ADR will be in 25 years but I do believe that ADR facilitators and trial advocates are becoming more knowledgeable about how to make effective use of ADR processes . I do not believe ODR will ever fully replace face-to-ace ADR, but I believe it will eventually be used in a great many more cases, particularly those where time and distance make a difference.

Editor: What is your view of the emergence of collaborative or cooperative law procedures?

Evans: I have supported both concepts but still have some questions about their respective protocols. Collaborative law now has many supporters, including many family law attorneys and a number of civil practitioners. It also enjoys statutory recognition. Cooperative law is quite similar, but its protocol does not have some of the constraints involved in collaborative law. Both concepts involve a commitment by the attorneys and their clients to conduct their negotiations in a responsible manner during their ongoing settlement negotiations. I think the major difference between the two concepts and mediation is that in the mediation process the mediator orchestrates the process, not the lawyers. I am encouraged by the general acceptance of these new processes and I think it is possible we can develop a new ADR process that incorporates the best elements of the different protocols. Both processes have the backing of enthusiastic lawyers and satisfied clients.

Editor: What is the work of the Frank Evans Center for Conflict Resolution here at South Texas College of Law in Houston?

Evans: We try to design and implement projects in a number of different areas with the basic goal of developing an understanding in law students of the lawyer's professional responsibility to the client - not just to win in litigation but to help the client resolve the dispute in a cost-effective manner. Our intent is to involve the students in projects with attorneys and business mentors so the students gain first hand knowledge about different ways to resolve disputes through effective settlement negotiations.

Editor: Are there any other projects working at the Center you could tell us about?

Evans: One of the projects I am most interested in currently is how to better define, expand, and integrate into one flexible protocol the best elements of mediation, arbitration and other ADR processes. What we are looking for is a voluntary process that will ultimately lead the parties, as a practical matter, into an assured final result. We have experimented with some ideas and have received encouragement from a growing number of trial lawyers, mediators, and judges about the project. So, we are optimistic but still have a great deal of work to do.

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