First published in Los Angeles Daily Journal, May 23, 2006
The Southern California Mediation Association is the premier mediator organization in southern California. On April 10, 2005, the SCMA adopted a Strategic Plan. The Plan sets forth a mission statement and these strategic goals: “(1) SCMA establishes mediators as valued professionals in southern California,” (2) mediation widely recognized as a profession, (3) mediators fairly compensated.”
This is a mission statement that warrants reflection. Its entire purpose is expressly stated as the establishment of mediators’ professional existence and fair compensation. Associations of lawyers and other professionals do not have such mission statements, because recognition and compensation are not issues for them. SCMA’s mission statement recognizes that mediators are not yet perceived as valued professionals and are not fairly compensated. How come, and what is being done about it? The reason lies in the curious system for handling the mediation of litigated cases in LA County. In effect, it is a ‘pay to play’ system with respect to cases mediated through the court system. Los Angeles mediators personally pay for 97% of court mediations, giving away thousands of hours and millions in fees each year, yet overwhelmingly mediators would rather be paid for their professional services. If Mary Mediator spends on average five hours per mediation including preparation and paperwork, her opportunity cost is $1,250 per mediation at $250 hourly. If she handles five court-referred mediations a month, the annual opportunity cost is $75,000 excluding office costs. What does she get for this investment? According to the Institute for Conflict Management, the average ‘pro bono’ mediator generates an average of eight paid cases per year based on these volunteer efforts, making the cost of acquisition per case $9,375. This is either economic suicide or a retirement hobby, and the professional quality of mediation suffers. Perhaps Mary Mediator will join the Party Pay panel; the problem is that almost no one uses it.
Some efforts have been made to address this problem. In April 2005, the California Dispute Resolution Council wrote to the Presiding Judge of the Los Angeles Superior Court pointing out the many ways in which the court’s mandatory ‘pro bono’ policy violated the principles of the CDRC. In May 2005, the Alternative Dispute Resolution section of the San Fernando Valley Bar Association proposed to the court that parties pay mediators a minimum of $450 per mediation.
To these mild initiatives, the court’s reaction was vigorous. Without contacting any ADR organization or seeking the views of mediators on the court panel, the court solicited letters of support for the indefinite maintenance of the existing ‘pro bono’ system from a number of Bar Associations in LA County. Why did the court feel the need to do this? And why was SCMA not even consulted by any of the Bar Associations that sent these letters of support? Why did these Bar Associations align themselves with the court in supporting a system that requires mediators to donate millions a year to this system, without any consultation with their mediator members?
Around the time the mediation statute (CCP 1775 et seq.) was enacted, government funding for payment of mediators dried up. Instead of requiring parties to pay, as is done in the courts of all neighboring counties, the court turned to mediators and asked if they would provide the service ‘pro bono’ on a temporary basis. That was in 1993. A temporary accommodation has become a permanent institution. Mediation has been provided ‘pro bono’ by mediators ever since, and LASC competes with numerous non-profit organizations in LA County for funds from Sacramento to administer the program. LASC is the only court in the State that competes with the private sector for such funds. Numerous non-profits provide mediation services to the genuinely needy and need the services of ‘pro bono’ mediators. Since the courts in all other southern California counties require parties to pay for mediation, LASC’s policy is not the rule but the anomaly. There is no law that requires mediators to go unpaid.
LASC is the largest court in the world; more filed cases, more trials to verdict, largest number of judges (450+), court personnel (5,500) and security personnel, with fifty locations throughout the country, and an astounding 2000 mediators on the ‘pro bono’ panel. Without these dedicated people, the system would grind to a halt. The resulting mediations account for nearly 50% of settled cases, a truly significant economic benefit to everyone else involved, from litigants to attorneys to the court system itself. The court rigorously maintains its free mediation policy even though parties pay filing fees, service fees, motion fees, court reporter fees, deposition fees, jury fees and attorney fees. Everyone gets paid except the mediators – seldom has any group of professionals labored for so long for so little.
The SCMA – the voice of mediators in southern California – having adopted as its specific strategic goal the establishment of the professional standing and fair compensation of mediators, the question arises: what is to be done to achieve this mission? Its current round-tables are helpful, its salons are good and its book clubs are nice especially for the authors, but none of these address the stated strategic goals.
The solution would be quite simple. Mediators should not be asked to work ‘pro bono’ except to help the needy and indigent, and LASC should adopt a fair and just program like those already in place in most other courts that allow mediators to charge for their services as the market dictates. Parties will then have their choice of mediator and fee, bearing in mind that mediation itself is a voluntary choice by parties. The court cannot compel it, unless the case is under $50,000 (CCP 1775.5), and even then it is essentially voluntary because California Rules of Court, Rule 1620.3 requires ‘voluntary participation’ and requires ‘respect [for] the right of each participant to decide the extent of his or her participation in the mediation, including the right to withdraw from the mediation at any time.’ In this simple manner, everyone wins – better service to parties, a competitive market for mediators, and a more effective system for the court.
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