Alternative options for resolving civil cases in the Superior Court during the COVID-19 pandemic

Mediation (via Zoom)

Retired Judges John Cratsley and Judge Paul Chernoff and ADR Officer Jim McCormack (an employee of the Superior Court) are available to mediate cases remotely via Zoom without charge to parties. Judges Cratsley and Chernoff are available to mediate cases where at least one party lacks resources for private, fee-based ADR services. Jim McCormack will mediate any cases, giving priority to cases where the parties are unable to afford private mediation. 

The process for requesting a referral to mediation with retired Judges Cratsley and Chernoff begins with parties submitting a “Request for Referral to Mediation” form to the session judge where the case is pending. The request for referral form is available on the Superior Court internet website under Superior Court forms.

If the session judge allows the request for referral to mediation with Judge Cratsley (ret.), Administrative Assistant Sue Ann Wood will coordinate the scheduling of the mediation with Judge Cratsley. Sue Ann can be reached by email at [e-mail]. 

If the session judge allows the request for referral to mediation with Judge Chernoff (ret.), parties can schedule the mediation session with Judge Chernoff by emailing Judicial Secretary Celeste Healy at [e-mail].

Parties may request or discuss that a judge refer a case to mediation with Jim McCormack. Once a judge refers a case to Jim, parties should contact Jim at [e-mail] to schedule a mediation session with him.

Mediation with retired Judge Mitch Sikora. At this time, Judge Sikora is not available to mediate cases remotely. However, when the courthouse is open to parties, we may be able to accommodate in-person mediations (with appropriate social distancing) in the Suffolk County Courthouse. Parties may request a mediation with Judge Sikora by completing the request for referral form that is available on the Superior Court internet website under Superior Court Forms. The form provides that counsel affirm that one or all parties, “due to financial constraints, are unable to engage the services of a private mediator at rates currently charged in Suffolk County” for such service. Sue Ann Wood will coordinate the mediation with Judge Sikora. She can be reached by email at [e-mail]. 

Conciliation (via Zoom)

The Essex County Bar Association Superior Court Pro Bono Conciliation program provides free conciliation services in Essex County. Interested parties should discuss referral of a case to the conciliation program with a judge or assistant clerk.

The American College of Trial Lawyers (ACTL), in collaboration with the Essex County Bar Association, offer free conciliation services through the ACTL Statewide Superior Court Conciliation Program. The program is voluntary and is currently available at no charge to litigants in Essex, Hampden, Middlesex, Norfolk, and Worcester counties and will be expanded to other counties later in 2021. Interested parties should discuss referral of a case to the conciliation program with a judge or assistant clerk. Parties may also request referral to the program by filing a “Request for Referral to ACTL Statewide Superior Court Conciliation Program” form that is available on the Superior Court Forms website.

Court-Connected Approved Programs for ADR Services. The Superior Court’s List of Court-Connected-Approved Programs for 2019-2021 has been updated to include information on the availability of remote services. The updated list is posted on the Trial Court webpage Alternative Dispute Resolution.

As a reminder, Court-connected ADR is governed by SJC Rule 1:18, Uniform Rules on Dispute Resolution. In order to be approved, each program must agree to meet the operations standards in Rule 7; agree to ensure that the neutrals on its roster meet the qualification standards of Rule 8; and agree to ensure that the neutrals on its roster follow the ethical standards in Rule 9 when providing court-connected dispute resolution services. Litigants may also seek ADR services from providers that are not on the court-connected list.  Please note that fees charged by Court-Connected Programs and other providers of dispute resolution services vary and are not set by the Court.

Parties may also seek the services of private providers who are not on the list.

Other possible options for resolving a civil case

Pursuant to Superior Court Rule 20(2)(k), and with the agreement of the parties and court, the following options for resolving a civil case are also available:

• Three-judge panel, jury-waived trial Specifics:
  • advance waiver of detailed findings of fact and ruling of law
  • use of general verdict slip by the panel  
  • decision by parties as to whether verdict is unanimous or two out of three
  • session judge rules on all pretrial, trial, and post-trial motions
  • session judge makes all evidentiary rulings
  • session judge determines any county specific procedures to be followed (i.e., half days, no trials on Fridays, etc.)
  • session judge or RAJ enlists two other judges willing to participate
  • litigants retain right of appeal 
• Superior Court Judicial Settlement Conference
  • a judge conducting the Judicial Settlement Conference would thereafter be recused from the case

Options available to litigants under Superior Court Rule 20

Superior Court Rule 20(2) provides the following alternative options for resolving cases upon the agreement of the parties. In addition, parties are free to suggest other proposals for resolving cases.

• non-binding judicial assessment of the case
• scheduling of mediation, arbitration or other dispute resolution with a Superior Court approved alternative dispute resolution provider or a private alternative dispute resolution provider
• a jury-waived trial with or without additional conditions (e.g., waiver of detailed written findings of fact and rulings of law; an agreement that expert testimony (in part or in full) be in writing; and agreement as to the number of witnesses, maximum trial time for each side’s evidence and/or total length of trial)
• (once jurors are available) limitations on a trial by jury (e.g., agreement to a jury of 6-8 people; waiver of attorney voir dire; agreement to accept a verdict from fewer than 5/6 of the jurors; agreement that expert testimony (in part or in full) be in writing; and agreement as to the number of witnesses, maximum trial time for each side’s evidence and/or total length of trial)