The <I>Pro Bono</I> Problem

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Charles Parselle’s recent mediate.com article, L.A.’s Policy Of Free Mediation Benefits Everybody But Mediator has generated considerable comment in the BLAWG- and BLARG-O-SPHERE.

As mediator Parselle points out, the Los Angeles Superior Court is the largest in the world with more filed cases, more trials to verdict, largest number of judges (450+), and most court personnel (5,500) than any other. Perhaps predictably, the largest court in the world has the most mediators of any other Court-annexed program — more than 2000 — whose collective work apparently accounts for nearly 50% of the cases settled in the county.

The problem? “Everyone,” notes Parselle, “gets paid except the mediators — seldom has any group of professionals labored for so long for so little.”

Parselle’s suggested solution is for the court to “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.” As he points out, however, the Court has resisted suggestions to require non-indigent parties to pay its pro bono mediators (unless they opt to use its recently established party pay panel) and has received the nearly unanimous support of our local bar associations to keep the pro bono panel free.

What then, are mediators to do?

Prisoner’s Dilemma

Having served on the Superior Court’s ADR Committee, I have listened to the pro’s and con’s of maintaining the Court pro bono panel from Judges, Commissioners, practicing attorneys and mediators. They all have something useful and reasonable to say in support of their position. I have also had several conversations with Mr. Parselle on the issue, who is always lucid and eloquent in support of a Court-annexed mediation program in which the (often) well-heeled attorney- and litigant-users “pay to play” rather than the (too often less financially secure) mediator-providers.

When I made my own suggestion for improving the lot of mediators in Los Angeles County, Mr. Parselle commented that I’d just described the classic prisoner’s dilemma. Though I don’t consider myself a prisoner of the pro bono panel but rather a grateful recipient of its many benefits, I took his point.

Benefits of the pro bono Panel

I don’t think anyone who’s served on the pro bono panel will say that it was not a great place to train and a good place to begin developing a paying practice. To this day, the people who hire me continue to be the people who have used my services. Therefore, despite my considerable marketing efforts (branding, publishing, credentialing, studying, networking, and joining a commercial panel of judicial and attorney mediators) more than half my business continues to come from the attorneys I met while mediating pro bono cases for the Superior and local Federal District Courts.

“Fine,” says Mr. Parselle, “but after you develop your skills and acquire some following, you should be entitled to make a living — a living the Superior Court pro bono Panel prevents local mediators from making.”

Though I’m not certain of the cause and effect relationship between the provision of free mediation services by the Superior Court and the business pro bono mediators might otherwise get in the marketplace, I’d certainly like to be paid to mediate unless I’m engaged in one of the community mediations I consider to be my true pro bono work.

The Proposal

As Mr. Parselle states (and I do not have access to the current statistics) the party pay panel is not in wide use. Why would it be? There are 2,000 mediators on the free panel, many of them highly competent, indeed, distinguished and with many years of experience.

My proposal? Once full-time professional mediators qualify to serve on the party pay panel, they should serve only on the party pay panel, after, of course, completing the four yearly pro bono mediations required to do so.

What would this accomplish? It would create the two-tiered system that the party pay panel (originally recommended by the Southern California Mediation Association) contemplated. Those individuals who are practicing their skills and meeting their market for the first time will continue to provide their services gratis as a kind of internship with the Superior Court. After qualifying for the party pay panel, they will drop off the pro bono panel, leaving it to new and amateur mediators.

If we believe our own claims that experience and professionalism are critical to successful and effective voluntary dispute resolution, the proof of those claims should quickly follow. Local attorneys will vote with their feet — using party pay panel mediators or going into the private market to assist them in resolving their litigation to the greatest degree of satisfaction for attorney and client alike.

Back to the The Prisoners’ Dilemma

“All well and good,” says Mr. Parselle, “but now you have created the classic Prisoner’s Dilemma, haven’t you?” Alas, I have.

For those who don’t remember, social science researchers have long used the Prisoner’s Dilemma to study social dilemmas in cooperative decision making.

The basic dilemma goes like this — Thelma and Louise have been arrested on suspicion of burglary. The D.A. has enough evidence to convict each of a minor breaking-and-entering crime, but insufficient evidence to convict them both on the more serious felony charge of burglary and assault.

The district attorney separates Thelma and Louise and presents them with two options: confess to the serious burglary charge or remain silent. The consequences of each course of action depend on what the other decides to do. They are told that they will both go to prison for ten years if both confess; one will go to prison for fifteen years and the other will go free if only one of them confesses; and, that both will serve a one-year term if neither confesses.

Ideally, it is desirable that neither confess. Because Thelma and Louise cannot communicate with one another, however, each risks a fifteen year sentence by not confessing and each has the chance of going free if they do confess.

As Professor Leigh L. Thompson of the Kellogg School of Business explains it, “the paradox of the prisoner’s dilemma is that the pursuit of individual self-interest leads to collective disaster. The conflict between individual and collective well-being derives from rational analysis. It is easy for Thelma and Louise to see that each could do better by cooperating, but it is not easy to know how to implement this behavior. The players can get there only with coordinated effort. ” Leigh L. Thompson, The Mind and Heart of the Negotiator (3d Ed. 2005) at 277-78.

The dilemma here? If I drop off the pro bono panel (as I have) won’t my fellow mediators — my competitors — take advantage of my leave-taking by getting those eight paid cases a year Mr. Parselle says can be generated from pro bono panel service? And won’t that opportunity increase for those who stay on the pro bono panel? If the pro bono panel is one of the few games in town, who can be expected to make the seemingly self-sacrificing decision to be one of the few people not playing it?

Solutions to the Prisoner’s Dilemma

Dr. Thompson tells us that there are several ways to encourage a cooperative solution to the Prisoner’s Dilemma.

A. Temporal Contiguity

Social science researchers have demonstrated that when opponents in the Prisoner’s Dilemma make their decisions at the same time, the players are more likely to cooperate. She explains: Temporal contiguity fosters a causal illusion: the idea that our behavior at a given time can influence the behavior of others. This logical impossibility is not permissible in time-delayed decisions. Id. at 283.

Even though Thelma’s decision to confess or not cannot actually influence Louise’s behavior unless she is telepathic, “people act as if their behavior influences the behavior of others.” Id. at 284.

Therefore, the chances that all professional mediators will choose the “party pay only” option will be greatly enhanced if everyone is asked to make the “party pay only pledge” at the same time.

B. Aligning Incentives

As mediators well know, monetary incentives are not the only drivers of party decisions. Dr. Thompson notes, for example, that cooperation can be induced through reward and recognition in organizations. “Recognition awards, such as gold stars, employee-of-the-month awards, and the like, are designed to induce cooperation rather than defection in a variety of organizational social dilemmas.” Id. at 292.

I have previously suggested to SCMA members that those “pledging” to serve only on the party pay panel could be incentivized by the type of programs the SCMA is presently pursuing, joint marketing efforts and, perhaps, an SCMA panel of mediators who agree to provide their services on a sliding scale — thus matching need to service more precisely than the “needs test” the Superior Court has already publicly rejected.

Lists of mediators “taking the pledge” could also be maintained on the SMCA web site, giving public recognition to those cooperating in the effort to encourage those who can afford to do so to pay their mediators when the Court “suggests” that the case should be “referred” to mediation.

C. Monitoring Behavior

As common sense tells us and as Professor Thompson notes, “when we monitor behavior, [people] often conform to group norms.” Id.

Here, an organization such as the SCMA could monitor compliance with its members’ party pay only pledge simply by checking the published “pledge list” on a regular basis against the pro bono panel listings maintained on the Court’s ADR page. The only “punishment” for failure to abide by the pledge would be one’s elimination from the public pledge list (and exclusion from any incentives offered).

D. Communication

Not surprisingly, Professor Thompson notes that communication fosters collaboration because it enhances group identity or solidarity and allows group members to make public commitments to cooperate. Id. at 294. The simultaneous public commitment of like-minded full-time professional mediators would satisfy their interests in professional group identity and solidarity, thus greatly increasing the chance that we will cooperate rather than compete in response to the pro bono Prisoner’s Dilemma.

Just a thought.