The Judicial Council has promulgated proposed Model Qualification Standards for court-connected ADR programs. The Council has done extensive research and has analyzed jurisdictions’ standards throughout the United States to come up with some workable qualification standards. The standards impose education and previous experience requirements to ensure quality dispute resolution services to the public.
However, the Judicial Council dilutes pro bono services by requiring that the mediator, mediate a set number of cases per year to remain on the court’s approved list of mediators. The Judicial Council’s new requirement dilutes their existing requirement that the mediator, if requested by the court, serve on a pro bono or modest means basis for at least one case per year. Mandating that a mediator mediate any two cases per year and making the pro bono requirement optional, undermines the purpose of pro bono and does not provide the economically challenged equal access to justice.
The standards attempt to achieve access to quality dispute resolution services in the Courts. The standards provide in part that the mediator have a bachelor’s degree or a high school diploma, 40 hours of mediation training in specific subject matter areas, completed 2-3 mediations, provide three references, take 7 hours of continuing education classes every two years, and mediate 2 court connected mediations per year over and above the pro bono requirement.
California’s citizens should not be required to sacrifice service quality or risk abuse at the hands of the unskilled or the unscrupulous in order to avail themselves of mediation services in the court system. Efforts to protect the public from abuses and to ensure access to quality dispute resolution services are laudable and should be supported.
Court-approved mediator rosters are interpreted by the public as an endorsement, or may confer legitimacy to those whose names appear on the list. Therefore, it is especially important that the individuals whose names appear on those rosters possess genuine ability and integrity. Underlying these concerns is a desire to protect the public from poor-quality services or potentially unfair settlements that some fear may result from services rendered by well-meaning but unqualified mediators. The proposed standards are inclusive of all by including those who are not lawyers, making sure that all mediators are well qualified to handle court connected cases and insuring that mediators remain qualified with continuing education requirements.
The proposed standards, themselves, offer reasonable safeguards to protect the public from potential abuses, unfair results, or poor quality mediation services. The California courts owe it to the public to offer quality justice, whether it is via a judge, mediator, arbitrator or referee.
The troubling aspect of the proposed mediation experience standard is that it does not encourage a mediator to engage in pro bono services for those who are poor, underprivileged disadvantaged or unable to afford mediation services. It mandates court annexed mediators to serve as a mediator in two cases per year which is in addition to the already established court rule that a mediator, if requested, serve as an ADR neutral on a pro bono or modest-means basis in at least one case per year.
In California, the ADR program for each County varies, in that some mediators are paid market rate, some serve for free, even to those who can afford it, and some serve on a reduced fee basis. The one consistency among the programs is that those of modest means or who are indigent will get mediation services at a reduced rate or for free.
Mediators do not object to giving their services to the underprivileged, however, mediators strongly object in giving their services to those who can afford to pay.
In some counties, such as Los Angeles, this rule will reinforce the indentured servant requirement of mediators. The Judicial Council should simply maintain their pro bono requirement or increase it to two cases per year to satisfy the continuing mediation experience requirement under the proposed standards.
All mediators should perform pro bono services for the indigent and those with limited means. The goal in California is to have quality mediators to serve ALL including those of limited means.
From CPR's Alternative articles at altnewsletter.com, published here. Also available from the newsletter subscription pages. The evidence is in. After 43 years of federal practice under Rule 408 of the...By Jeff Kichaven