Court closes ADR ProgramI approached SCMA with the idea of doing a Town Hall in 2003 when the mediation community was divided like the red sea over the Rojas v. Superior Court Case.  That case pitted the confidentiality of the mediation process (and the evidence of mold discovered during a mediation, and its eventual remediation) against the needs of the families who had mold spores in their lungs and no way to prove liability, short of breaking the confidentiality of the underlying mediation.  That year, SCMA and CDRC, the two largest mediation groups in California wrote opposing amicus briefs to the State Supreme Court.  As a commercial mediator, I could see both sides of the issue having merit and thought that the best thing for the mediation community to do was to practice what they preach and come together to have a facilitated dialogue about the issue of the extent to which mediation confidentiality should extend.  After leading two years of public hearings on the state Senate Bill regarding mediator credentialing during the mid-90’s, I was very comfortable leading this kind of discussion and thought it would be good for everyone.  Since that time, SCMA has hosted a Town Hall most every summer.

This year, the reported closing of the Los Angeles Superior Court’s ADR program is a huge issue in the legal and ADR world, so a Town Hall style dialogue among mediators and advocates alike is really important.  The LASC mediation program was the largest in the world, and by administering some 25,000 mediations per year, was the envy of most other legal communities.  One of the largest benefits that the program provided, in addition to the obvious docket clearing benefit of a 50% resolution rate, was that it took the pressure off of counsel to risk appearing weak if they suggested mediation to opposing counsel by having the court order cases into the program so that counsel could save face.  One can only wonder how many of the cases that would actually benefit from a good private mediation will have that opportunity, as trial counsel simultaneously need to be zealous advocates for their clients in an adversarial proceeding.  I believe that proposing a mediation – an attempt to settle – is one of the hardest things to do for a trial lawyer. And the more their style leans toward intimidating, the harder it is for them to be congenial or appear open to settlement.

The reason that the local mediation community is divided over this is that at different stages in a mediator’s career, the program can be really helpful, almost a saving grace, or it can be the evil, undermining effect that keeps them from making a living.  You see, the LASC mediation program operated with a collection of some 2,000 trained mediators willing to mediate cases under $50,000 for the court on a volunteer basis for the first three hours.  The problem was that the court never respected the $50,000 cut-off intended by the original deal, which became SB 401, and eventually CCP 1775. As a result, the court deemed it fair game that ALL general civil cases were eligible for “free” mediation (for the first two hours of mediation time in every case, which quickly morphed into 3 hours by the late 1990’s).  This meant that for beginning mediators who were fresh out of training, the court was a great place to go and volunteer and get experience mediating with represented parties.  For intermediate level mediators, it was a great opportunity, and still one worth volunteering for, to raise their number of cases mediated and begin to develop relationships with trial lawyers on both sides of the aisle, as well as institutional parties, like insurance companies and corporate counsel.  But for more advanced mediators, looking to build a practice and pay the mortgage and feed their families, the court program soon became unfair competition, building on the backs of volunteer mediators, and by sending cases over $50,000 into this free program, potentially taking cases that would otherwise go to the private sector into the court’s jurisdiction by offering them free mediation. Today’s Tea Party should have had a fit over this.

As we look at it today, the possibility that this program appears to be going away on June 30, the only certainties we have is that the legal and ADR communities likely won’t have the court’s help in getting parties to the mediation table, and the likelihood of finding volunteer mediators for litigated cases will be little or none.  What we won’t know until this evening at the Town Hall being hosted by the Southern California Mediation Association is how the mediators and the bar will react to these changes.  Undoubtedly, some mediators will applaud them and say it’s about time, where others will mourn them and say that they feel like the mediators who are “in” practice already will have an even greater advantage over those trying to break into the profession.

In the end, I look forward to moderating a civil and productive dialogue will help generate creative ideas for continuing to promote mediation in litigated matters, and that as a community of peacemakers, we will find a way to serve those cases that might otherwise go un-served.  As a room full of mediators, I am certain we will find a way.

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3 Responses to “Mediator Town Hall Hopes to Sort Out Differing Feelings over LA Court ADR Closure”

  1. Lee Jay Berman Says:

    Turnout was fantastic. We had about 80 people in the room, mostly mediators, but a smattering of advocates, collaborative lawyers and one lawyer from the Administrative Office of the Courts (AOC).

    The proposal that seemed to take shape was that SCMA might consider pitching in to help make up for the court’s lack of funding to administer the program, but might reshape their offering to something like this:

    I. True pro bono services could be offered, by a panel of those willing, in cases where someone has filed a pro forma pauperis petition, but that would need to be studied, for example, if an insurer or corporate defendant was involved who could afford to pay for mediation services, how would that be treated?
    II. For cases under $50,000, where, perhaps like San Diego and Santa Barbara counties, the plaintiff signs a for stipulating that the case is worth $50,000 or less, then a panel of mediators be formed within SCMA who would be willing to mediate these disputes for a reduced rate (perhaps equaling the former Party Select rate of $150/hour for the first two hours.
    III. Cases with more than $50,000 in question could go to a market rate professional panel at SCMA.

    Additional factors involved might include educating the public, perhaps providing a 1-page flyer or brochure to litigants apprising them of these services and how to access them, perhaps including the 501(c)3 non-profits who receive DRPA funding and might be able to provide pro bono or sliding scale services in smaller cases. All seemed to agree that a court “push” (referral, suggestion or other prodding) would be very useful, perhaps in combination with a mediation completion date. And the points were made that we had to think about including family law in the process, as well as how we would deal with pre se parties, including marketing to them.

    Finally, complications that arise if the court panel goes away would include a sudden absence of ruiles of court governing mediator behavior, ability to enforce minimum mediator training and experience requirements, mediator oversight and discipline, and the ability to poke one’s nose under the tent of confidentiality in the event of such an accusation,which right now is only granted to a court administrator. Presumably, any plan that SCMA contemplates would somehow have to incorporate these rules in an enforceable way.

    I think it was a good conversation because the more we talked about it, the more unforeseen challenges (such as those above) came out. This issue is quite a bit more complex than was first thought and will require much more thoughtful discussion. But tonight’s discussion, which was contributed to by most all in attendance, was a very useful first step.

    In the end, many expressed their gratitude for the professional and orderly way the discussion took shape. Others laughed and said that given that we are all trained in mediation skills, it’s not surprising. It was a productive night’s discussion, absent any of the conflict that I anticipated, and frankly even tried to stir up at times, without much success! That, I think, was my favorite part of the night.

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  2. Deborah Denson Says:

    I would love to hear updates on this as it progresses. There is such a natural tension between mediators and community mediation programs, and I have bumped up against this tension several times.

    All my best, and thanks for sharing
    Deborah
    Nashville

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