Jan
15
2013
Mediator Town Hall Hopes to Sort Out Differing Feelings over LA Court ADR Closure
Author: Lee Jay Berman
I 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.
