Sunday, June 22, 2008

Court Ordered Mediations: Is it Time to Be Honest about their Efficacy?

There is an on-going controversy in Los Angeles County about "court ordered" free mediations. On the one hand, the ADR Committee has steadfastly maintained that Los Angeles is under a specific State requirement to make pro bono mediation available in all cases. On the other hand, mediators have experienced frustration in both the challenge of settling these "ordered" cases and the challenge of building a private practice when all cases are afforded an opportunity to mediate in L.A. County for free. This all came to a head this week at a meeting of the Los Angeles County Bar Association.

According to the Los Angeles Daily Journal article which covered the debate: "Though the debate was civil, Bendix lashed out at the two mediators in a hallway after the meeting. She told Parselle she thought he had been "disingenuous" in the debate when he said low-income litigants would still be able to get free mediation through the court's fee-waiver process if the resolution passed. Bendix told him that his position reflected a "profound misunderstanding" of the fee-waiver process. "I don't want to participate in these discussions with you if you're going to be dishonest," Bendix said sharply. "This is so wrong."

*Let me take this opportunity to apologize to Charles Parselle for suggesting or implying that he made any accusatory or
untoward remarks. On the contrary, the Daily Journal article made it very clear that he was quite puzzled by what had just happened. I have had the opportunity to speak with Mr. Parselle, and he confirms the accuracy of the Journal report and add that in response to the judge's remarks to him, he did not make any response other than to express his puzzlement and repeat that the legislative amendment contemplates that free mediation should remain available to indigent litigants who have obtained a fee-waiver from the court."

Although the Southern California Mediation Association officially took no position on the pending legislative changes when President Nikki Tolt was asked by the reporter for the Daily Journal, the position articulated by Mr. Parselle at this meeting was generally supported by the SCMA last year, when I was the organization's President. I was not present for the LACBA presentation, but I am very familiar with this longstanding dispute and agree personally (and as Past President of SCMA) that change is needed and many cases are "ordered" to mediation and offered free services when the litigants could well afford to pay a mediator for her work. What's more, it is my personal opinion that this would result in higher settlement rates and actually be of greater service to both the court and the litigants!

This week I had the opportunity to co-mediate a case with a colleague who has not accepted a "court-ordered/free" case for five years. He began the day with the following reassurance to each side: "I think this is going to be the day we get this done. It really needs to happen today"...(and to one side: "Amazing things happen between 5 and 6 P.M."). Indeed, the case settled, although it was nearly 7:30 P.M. At its conclusion, he felt triumphant, relieved and tired. I felt something different, after the Plaintiff, who had gotten an excellent settlement, would barely shake my hand. I was left wondering whether we had done justice in achieving the litigators' goal of settling the case that day, but left the plaintiff himself extremely unsatisfied. On the following day, my colleague reminded me cheerfully: "Jan, that's why they hire us. They want us to settle every case, and in the main, I do. It's in at 10:00 A.M. and out with a settlement by 6:00 P.M."

It's taken me several days to process this, but I offer this observation. In court-ordered cases, the parties have no expectation that the mediation date is the day they will settle the case. Indeed, I often begin those hearings by inquiring: "Why are you here?" I do this so that both sides "buy in" to the notion that one possible outcome is settlement, but typically, we all know that there are many other possible outcomes--further discovery, further negotiation or a future settlement date. So it is no surprise that the statistics show that private cases are settled at an 80-90% rate, whereas court-ordered ones are barely more than 50/50.

I'm not so sure it's about who pays for the mediation, but if the parties (and their attorneys) are given free choice and mediation is truly voluntary, chances are greatly improved that the date they choose will be the date each party is ready to resolve the case.

Wouldn't that be a better use of resources for all concerned?


Cebepe said...

Point of correction. The report in the Daily Journal is accurate; there was no "accusatory conduct running both ways." Anyone interested can verify simply by reading the Journal article.

Marvin Schuldiner said...

Here in NJ, litigants are ordered into mediation for a 1 hour minimum. After the 1 hour, they are free to go and do not have to pay anything for the mediator. Only about 33% of cases statewide settle in that session. Most of my cases go beyond the 1 hour.

I will often have clients who will stay past the hour but do not seem to be willing to settle at anything other than their 100% win. I will ask them why they are still here given that the other side is not likely to give you everything you want in a case fraught with risks for both sides. I usually get "the court ordered me to." They still stay and negoatiate when I tell them they could have left 90 minutes ago.

Parties in law suits are often confused and frustrated. Since only 1.8% of cases filed in NJ go to trial, most of them settle. They need to justify to themselves (and their supporters outside the room) why they should settle. Sometimes it happens that day, sometimes later. I will often tell a confused party to go home and think things over and get back to me in a week. Adding pressure to a confused person is not a good recipe for anyone's long term happiness.

Anonymous said...

confused about this entry - can't tell who is apologizing to Charles and why. I don't see anything here about 2 way accusations. Am I missing something? Really a shame that this issue continues to divide us. Why on earth would mediators DEBATE positions???

Vickie said...


Can you post the DJ article?

What's the apology for? and from whom? I'm confused.

Really, really sorry to see this conflict come to this.

Thanks for covering it.