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Neutrals In California: Descriptive Findings On A Study of Retired Judges And Practicing Attorneys

Increasing reliance on the use of alternative dispute resolution raises questions about the numbers of retired judges and practicing attorneys serving as arbitrators and mediators, the percentage breakdown between these two legal specialties in dispute resolution firms, and the compensation to resolution experts for presiding over cases.

Neutral participation at four alternative dispute resolution firms in California—ADR Services, Inc.SM (ADR), Alternative Resolution Centers® (ARC), JAMS®, and Judicate West (JW)—was calculated to answer the above questions. Using publicly-available neutrals lists and fee schedules on the firms’ websites in April and October 2007, the author compiled and verified an anonymized database of the following information:

  • Neutral category (retired judge, attorney, or unspecified)
  • Locations served
  • Hourly rates by neutral category (for ADR only; other firms did not provide sufficient data)
  • The number of dispute resolution firms with which each neutral was affiliated

In April 2007, there were 483 individual neutrals affiliated with at least one of the four firms in the study. As the following chart shows, more than 60 percent of the neutrals were retired judges, and more than one-third were attorneys; unspecified professional neutrals comprised two percent of the neutral population:

Number and Percent of Neutrals by Category, April 2007:

Based only on ADR website data, neutrals charged an average of about $400 per hour, with attorneys assessing slightly higher average rates than retired judges, but average fees dropping for both groups over the study period. Between April and October 2007, attorneys saw an average fee decrease of not quite three percent (from $411 to $400 per hour), and rates dropped about four percent among retired judges (from $406 to $389 per hour).

Many neutrals are associated with at least two firms in the study. Twelve percent of retired judges, and 14 percent of attorneys, are affiliated with multiple firms; overall, more than one in eight neutrals are listed with two or more alternative dispute resolution services.

These findings should be interpreted as general trends only, for informational purposes. Data quality is necessarily limited to the quality of the public neutrals lists and fee information made available on the websites of the firms studied, and data accuracy is necessarily restricted to the accuracy and currency of the lists at the time of collection. Using these findings for policy refinements should be done with caution, and with the addition of more specific studies designed to address particular policy questions.

Future research worth pursuing includes the following:

  • Document the length of time a judge spends on the bench before becoming a neutral; this is an issue relevant to policymakers who question the costs to society of judges honing their skills at taxpayer expense, and then retiring from public service for more attractive careers in the private sector
  • Calculate findings for neutrals in other states, and compare to California in light of legislation and regulations affecting growth in the neutral population
  • Stratify findings by litigation specialty, location, length of time to case resolution, and case settlement rates
  • Validate the need for complete transparency of interactions, marketing activities, publication of hourly rates, and administrative fees among ADR providers with institutional and repeat clients
  • Explore expanding the California Judicial Council record keeping to include the number of cases resolved by paid and volunteer ADR providers
  • Compute the costs incurred by litigants using ADR providers
  • Develop a methodology to quantify the value of services provided by volunteer ADR providers
  • Consider the policy implications and economic effects on litigants if the courts hire full time judicial officers to serve as mediators and arbitrators to compete with private ADR providers

This brief study illustrates key trends and elements in the use of neutrals in California dispute resolution. The growth of reliance on mediators and arbitrators indicate the need for high-quality data collection and subsequent review of alternative dispute resolution activity, to ensure the essential and fundamental equity in civil disputes that is critical for justice.


Sara Laufer Batinovich

Sara Laufer Batinovich is a demographer with over 15 years of experience in life cycle and health disparities research and analysis.  A consultant since 1994, her clients encompass businesses in a broad range of industries, including technical, educational, legal, medical, and financial domains. She has specialized experience conducting research and… MORE >

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