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Appellate Courts Clarify ADR Procedure

It’s no secret that the Court of Special Appeals has been increasingly overwhelmed with cases, nor is it a secret that the Court would like to see a lot of these cases resolved or otherwise cleaned up before having to spend time on them. Those concerns led to the creation of the Court’s ADR Division and accompanying procedures for steering the parties toward settlement or streamlining of the appellate process. After trying those out for a while, however, the Maryland Courts’ Standing Committee on Rules of Practice and Procedure identified some kinks, inefficiencies, and redundancies in the overall system, and proposed some related rules changes that were adopted by the Court of Appeals this month.

As it had worked, pursuant to Md. Rule 8-206, the Court of Special Appeals can hold a “scheduling conference” at which parties appear before a judge of the Court to discuss the contents of the record and record extract, filing deadlines, and other procedural and administrative matters. Similarly, as set forth in Rule 17-401, the Court’s ADR Division also conducts free mediation or “settlement conferences” that provide an opportunity to achieve resolution on both procedural and substantive issues, including dismissing the appeal entirely or otherwise streamlining it by limiting issues, consolidating multiple actions or briefs, presenting disputes in preliminary motions, directly seeking certiorari with the Court of Appeals, and the like. That rule directs the ADR Division to screen all civil-appeal information reports and – if necessary, in consultation with the parties or attorneys (communications that aren’t regarded as ex parte) – make recommendations to the chief judge as to whether the parties should be ordered to participate in either mediation or a settlement conference.
Under Rule 8-206, the chief judge (or some other judge he’s delegated his responsibilities to) reviews the recommendation and enters an order either directing the appeal to proceed as normal; mandating that the parties or their attorneys attend mediation or a settlement conference; routing the case to a scheduling conference; or staying the case so the parties can engage in their own alternative dispute resolution. If the parties are ordered to mediation (ran by an incumbent judge of the Court of Special Appeals, a retired judge, or a designated staff attorney who has satisfied the requirements of Rule 17-403) or a settlement conference (which can only be conducted by incumbent Court of Special Appeals or other retired appellate judges) and they don’t initially settle, they can agree to keep at it or try another type of alternative dispute resolution. A failed settlement conference can also be essentially converted into a scheduling conference to streamline the appeal. All in all, not a bad system, but not perfect either, especially with all the overlap between mediation, settlement conferences, and scheduling conferences.
The new rules try to clean this up, largely by replacing the settlement conference with a “prehearing conference” and covering more ground in the scheduling conference. Further, instead of assigning duplicative functions to the two types of conferences, the changes more clearly distinguish between them but permit the chief judge to order both rather than one or the other. (The new rule also eliminates the fourth possibility – staying the case so the parties can engage in their own alternative dispute resolution – presumably because it’s already covered by other permissible preliminary motions.) Rule 17-402 also now provides that the chief judge can, regardless of what he initially ordered but provided oral arguments haven’t been held yet, change his mind and order a prehearing conference or mediation. A prehearing conference or mediation can only be held after oral arguments if the parties consent and no dispositive opinion or order has yet been issued.
The scope and purpose of the scheduling conference (which can now also be conducted by a retired judge) has been expanded to cover gray areas between purely procedural and substantive disputes. For example, whereas the scheduling conference was previously intended for tidying up purely administrative matters, now it’s also meant to cover more contentious disputes, including arguments about procedural bars to the appeal, mootness, and lack of preservation. The scheduling conference is also now the proper place to address topics previously reserved for the settlement conference, including limiting the issues; presenting disagreements to the Court in a preliminary motion rather than through appellate briefing; relying on a joint statement of the case rather than a record extract; submitting a consolidated brief for multiple appellants (along with any necessary deadline adjustments); bypassing the Court of Special Appeals and filing a petition for certiorari with the Court of Appeals; expediting or delaying proceedings; or dismissing the appeal entirely. Likewise, the revised Rule 17-403 keeps the prehearing conference more limited to settlement of substantive matters, rather than the blend of procedural and substantive issues formerly covered by a settlement conference.
Things are also slightly different in how the Court implements agreements that might come out of a scheduling conference. In the earlier version of the rules, the judge conducting the conference would enter an order reflecting any agreements reached between the parties, requiring additional conferences, or remanding the case. Going forward, the procedure will largely align with that used for resolution achieved after mediation or a pretrial conference: The parties (or the scheduling hearing judge) will file a proposed order and the chief judge signs it, rejects it, or sends it back with proposed changes (though he can’t prevent a party from ultimately maintaining or dismissing the appeal). If the parties don’t accept the changes, the appeal proceeds as if there had been no agreement at all.
In all, the new rules only nominally create additional opportunities for resolution of cases through appellate ADR. The overall effect of the adjustments, however, is to clarify the purposes and uses of the various procedures and implement them in a targeted and more efficient manner. That suggests the Court is invested in the ADR program and looking to grow it in an integrated and comprehensive way.
Silverman Thompson Slutkin & White, LLC is well suited to handle any appellate matter in Maryland. Joe Murphy was Chief Judge of the Court of Special Appeals and a Judge on the Court of Appeals before retiring and joining the Firm and Chris Mincher clerked for Judge Robert McDonald on the Court of Appeals. If we can assist you with an appellate matter, please call (410) 385-2225 and ask to speak with either Joe or Chris.