New Rules

I find myself charged with an unexpected project, trying to figure out how to deal with the probable demise of one of the largest court-assisted ADR programs in the country. At the same time, the court system is also implementing drastic funding cutbacks that are likely to increase backlogs and reduce the availability of court services, suggesting that mediation is needed more than ever to resolve disputes that the court system is less and less capable of resolving. The elimination of funding for the LA County Superior Court ADR program, expected to take place by June of this year, combined with these other cutbacks, presents a unique opportunity for other organizations–such as the Southern California Mediation Association, of which I recently became Vice-President–to step into the void. Not that we have the capacity to run a program of that magnitude. But we do have the chance to design something that will provide a similar service to many litigants, and might serve our members better.

To do that requires re-thinking the elements necessary to make a mediation program attractive to litigants and the court, as well as to make it work better for mediators. It requires reconciliation of potentially conflicting interests, something that mediators are supposed to be good at. It also requires consideration of marketing, administration, and cost. The project will involve breaking some old rules, and making some new ones.

Robin Mashal photo
We might start by thinking about how the existing system works. Over the years, the LA Superior Court mediation panel has changed the culture of the court. When parties used to make their first appearance in a civil case, the judge and the parties’ attorneys would mainly talk about setting deadlines and trial dates, and scheduling motions and discovery. Judges still do all that, but now they spend just as much time advising attorneys about available settlement procedures, setting mediation completion dates, and referring cases to various ADR programs. The default selection is currently the court’s own pro bono panel (now called random select), which is free for the first three hours, and requires minimal effort by litigants, but which assigns mediators to parties on a random basis. The court also maintains a party select panel of generally more experienced mediators, which requires litigants to pay a reduced rate for the first three hours of mediation ($450, or $150 per hour), but allows litigants to select a mediator of their choosing. Currently usage of the party select panel is quite low in most of the branch courts, but has risen significantly in the Central downtown courthouse and several others.

I think that professional mediators and aspiring professional mediators hope that this culture of referral to ADR is now so deeply ingrained that litigants will seek mediation out even if there is no longer any court program to make it easy for them. A lot of mediators are ready to say good riddance in particular to the free panel, but many rely on that panel to provide experience, and a means of building their reputations. (See my prior post on whether the court’s elimination of ADR administration will mean the end of free mediation.) The larger question is what happens to the whole system of processing cases in the absence of an administrative apparatus that assigns cases to mediation, makes sure that panel mediators are at least minimally qualified, and follows up to make sure that mediation is completed. The expectation is that usage of mediation services will probably drop. A lot of attorneys might go back to the old-fashioned do-it-yourself style of settlement negotiation if the court won’t assign them a free mediator. Therefore, to maintain a high volume of cases for mediation, we would presumably want to design an alternative program that is as simple and valuable for the participants as the existing program, in addition to reminding them that mediation works better than doing it yourself.

Maintaining a high volume of referrals is not the only goal, however. The court program has been criticized because it sends a lot of cases to the random select panel whether the parties are likely to benefit from mediation or not. The court program also allows parties to select free mediation even in cases that probably don’t justify that service. A lot of mediators believe, with justification, that if people don’t have to pay for the service, they will not value it as highly, and they will be less likely to put in the time and effort necessary to make it successful. In other words, a lot of litigants who are referred out to a three hour free mediation view it as a pro forma step they must go through that in most cases won’t resolve the dispute precisely because it is free and because it requires so little effort from the parties. There is no reason why outside mediation providers should replicate these defects in the court program.

A program designed by the court is necessarily going to serve, primarily, the needs of the court. And because that program was designed by judges and lawyers, it is also going to be replete with rules and it operates under the threat of sanctions. The court program contains detailed rules governing appointment to the court panels, rules governing the assignment of cases, rules requiring completion of mediation by specified dates, and consequences for the failure to abide by these rules.

A program designed by mediators, on the other hand, ought to reflect the values of mediation, instead of the values of the court system. A system designed by mediators should be voluntary, meaning that parties should not be coerced or compelled to participate. (A system devised by mediators in fact must be voluntary, as mediators have no power to make anyone do anything.)

Such a system should also be flexible, meaning that parties and mediators should have the ability to design a process that meets the needs of each case. A flexible process, for example, might start with a telephone conference call with the mediator, and perhaps involve a series of meetings, rather than be expected to limit itself to a one-time, one-day or three hour event.

A system designed by mediators should be participatory, meaning that it should allow parties to control the conduct and outcome of that process themselves. The parties should be able to choose their mediator, and decide how much they are willing to pay.

The court system currently takes some of those choices away from the parties, particularly if they select the default option of the random select panel. That has the virtue of saving parties the trouble of haggling over the selection of a mediator, but limits their ability to select someone they think is appropriate to their case. Ideally, however, a more party-centered mediation system should allow participants to specify the criteria they think are important, e.g., whether they want a mediator with subject-matter expertise, whether they want a lawyer, judge or non-lawyer mediator, whether they need a mediator with substantial experience, and how much they are willing to pay. A voluntary, flexible and participatory system would then assist the parties in selecting a mediator that satisfies their desired criteria. Such a system would also allow mediators more leeway in determining their own rates and procedures.

A mediation referral system designed by mediators should operate with a minimum of rules. It should be helpful. It should be friendly. It should be easy to use. It should serve the needs of a number of divergent types of users and providers of mediation services. It should be, in short, everything that courts are not.

                       

Joe Markowitz

Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both… MORE >