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Privatized Judgments

A new law providing for private judges offers a little relief for a backlogged, poorly funded state court system.

Mediation and arbitration continue to grow in popularity in Alabama and beyond as a means of avoiding expensive and time-consuming public court battles. Now, thanks to a relatively new law, Alabama businesses and individuals have yet another alternative for dispute resolution: private judging.

With private judging, the parties in a civil or domestic lawsuit may agree to hire a qualified former or retired judge to hear their case instead of having it tried in district or circuit court. The lawsuit may or may not already have been filed with the court clerk; however, the parties must petition for a private judge before the beginning of their trial. As in a regular court case, a private judge’s decision is final, but it can be appealed.

Unlike a case tried in the public courts, the litigants are able to choose among available private judges with specific areas of expertise rather than having their case assigned. That could be an advantage for complex and technical civil lawsuits, says retired Judge Scott Vowell, the former Jefferson County presiding judge. Vowell is engaged in alternative dispute resolution practice, including private judging, mediation and arbitration, with Vowell & Goldsmith in Birmingham.

Because private judges don’t have the large caseloads of public judges, they are able to schedule a hearing relatively quickly. The trial may be scheduled anywhere within the state. There is no option for a jury trial. “Some parties may see that as a disadvantage,” Vowell says.

While private judging is new in Alabama, California has been using the alternative for more than 30 years. Other states with private judging statutes include Florida, Texas, Colorado, Ohio and Indiana. Unlike many laws, Alabama’s private judging statute was passed by the Alabama Legislature the first year it was introduced. It went into effect in July 2012.

The impetus for private judging came from retired domestic relations Judge Sonny Ferguson, who was working with others to find a remedy for the state’s overloaded court docket and inadequate funding, says Sen. Cam Ward, R-Alabaster, who sponsored the bill with fellow Republican Sens. Tom Whatley of Auburn and Jerry Fielding of Sylacauga.

“We still need to address the problem of funding, of course, but this is a step toward helping abate the clogged judicial process in Alabama,” says Ward, who chairs the Senate Judiciary Committee.

This year, Rep. Paul DeMarco, R-Homewood, chair of the House Judiciary Committee, is working with Ferguson to introduce a bill to slightly amend the private judging law so that former or retired district judges can serve as private judges for circuit court cases. “Anytime you pass a law, you may need to tweak it as time goes on. That’s just a normal part of the process,” DeMarco says.

While it’s a little early to say what the long-term impact of private judging will be on civil and family litigation in Alabama, many, including Alabama Supreme Court Chief Justice Roy Moore, are hopeful. “The Alabama Private Judge Act is a valuable tool to allow parties to have cases heard before qualified former judges who, in most cases, can hear and decide controversies more expeditiously than active courts because they are not restricted by crowded dockets and hundreds of pending cases, and can devote their entire attention to a matter,” Moore says.

The Alabama Supreme Court helped shape the development of alternative dispute resolution in Alabama by creating the Supreme Court Commission on Dispute Resolution in 1994 at the request of the Alabama State Bar and the State Court Circuit and District Judges Associations.

The commission’s administrative arm is the Alabama Center for Dispute Resolution, which is led by Executive Director Judith Keegan. The center promotes and provides information on alternative dispute resolution and maintains an online list of qualified private judges, mediators and arbitrators.

“Mediation and arbitration were growing in popularity in the mid-’80s and early ’90s,” Keegan says. “They were seen as beneficial, and many in the legal community wanted some structure for their development and promotion.”

Many private judges, like Vowell, are also mediators and arbitrators. Alabama mediators and arbitrators who are not former or retired judges typically are attorneys.

As demand for mediation and arbitration grows, adding those skill sets to a law practice makes sense from a business perspective, Keegan points out. She doesn’t expect private judging to affect the growing demand for mediation or arbitration, because of the significant differences among the three alternative dispute resolution options.

Mediation is a much less formal process that brings in a neutral third party to help opposing parties, whether individuals or organizations, find a solution both sides can live with. “With mediation you have the opportunity to go back and forth in private sessions. You can find out what the parties really care about and what they are willing to give or give up to get something they want. It offers the opportunity for bargaining, so you don’t just end up with a winner and a loser,” Keegan says.

‚Ä®Arbitration also brings in a neutral third party to work out a resolution. But arbitration, typically set up as a requirement in a contract, may be binding. The arbiter’s decision is final, even if one or both parties aren’t happy with it.

“The real impact on private judging will be on the public court system, because it’s an alternative to trying a case before a district or circuit judge,” Keegan says.

Some, Ward says, voiced concerns when the bill was introduced that private judging might have a negative impact on funding for the judicial system. But that didn’t keep the bill from being passed.

“We have struggled for years to get the Alabama Legislature to provide adequate funding for the judicial branch of government,” Vowell says. “Despite our efforts, the appropriations for the courts have declined almost every year since 2003.” 

Thus far, private judging has only been used for domestic cases in Alabama. Private judging advocates believe that’s because the domestic dockets are particularly backlogged, and families may be highly motivated to bring their disputes to a close. They believe private judging for civil litigation will grow in popularity as more attorneys and businesses become aware of the option.

“Private judging is in its infancy in Alabama. Those in the legal profession tend to be conservative, so it will likely take time for it to catch on,” says retired Judge William Gordon, a Montgomery-based private judge who has been serving as arbitrator and mediator since 1999.

For more information, visit the Alabama Center for Dispute Resolution website at alabamaadr.org.

Kathy Hagood is a freelance writer for Business Alabama. She lives in Homewood.

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