Or, "What We Did This Summer..."
The following are letters exchanged between CDRC President Dick Bayer and LA Superior Court Presiding Judge William MacLaughlin, regarding the LA Superior Court mediation program.
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Via
Hon. William A. MacLaughlin
Presiding Judge
Hon. Helen I. Bendix
Chair ADR Committee
Dear Judges MacLaughlin and Bendix:
California Dispute Resolution Council (CDRC) is the statewide advocacy organization for Alternative Dispute Resolution (ADR) in
In 1994 we worked with, among others, the legislature, members of the AOC and the Bar, in shaping what was then SB 401, providing for a mandatory mediation pilot program for
We are proud of the program that we helped to conceive and construct and the reduction in trial court delay by resolving thousands of matters without the need for continued court hearings and court days. The program has also succeeded in meeting its other goal of educating the lawyers of the Bar about the effectiveness of mediation in litigated matters.
When CDRC takes a position on proposed legislation or public policy, we are guided by our Dispute Resolution Principles (“Principles”), which represent the thinking in the field as it relates to the delivery of ADR. We ultimately supported SB 401 because it was consistent with our Principles. A copy of our Dispute Resolution Principles is enclosed for your review.
Recently, our Public Policy Committee, in responding to feedback from our members, reviewed the implementation of CCP §1775 by LASC, and its relation to our Principles. We were troubled to find a number of inconsistencies between what we believe to have been the original intent of SB 401, and the ultimate implementation by LASC. Several components of LASC’s management of its ADR caseload directly conflict with our Principles. CDRC believes that if the Bill were proposed today in the manner in which we understand it to be implemented by the LASC, CDRC would be forced to oppose it and put our effort behind defeating it, unless amended.
Given these conflicts, our membership (especially the
Our Principle I.A., titled Voluntary Participation, states, “The values of a democratic society are maximized when parties voluntarily elect to participate in a dispute settlement process of their own choosing.” “Mandatory” mediation means compelling one to participate in a voluntary process. We supported this oxymoron for a limited time and for the limited purpose of demonstrating to the Bar the effectiveness of mediation as a viable settlement in litigated matters (the original Bill called for a pilot period of four years, ending in 1998). CDRC could only support the mandatory aspects of the program based on the last sentence of Principle I.A.: “[t]o the extent participation in an alternative dispute resolution process is mandated … the resolution of the dispute should not be binding.”
Principle I.B, Informed Consent, states: “Parties should be free to choose whatever dispute resolution process best meets their needs.” If parties are still being ordered to mediation by the Court, then they no longer have such a choice.
Principle I.C.2, Funding, provides:
Government and community organizations should continue to make mediation and other dispute resolution services available for those who cannot afford to pay for them. Disputants with the ability to pay may be expected to contribute financially to administrative costs, fees for third-party dispute resolvers, and other legitimate user charges.
We understand that “disputants with the ability to pay” are not in fact paying for mediation services in the LASC’s pro bono mediation program, and we ask that you implement such a requirement. CCP §1775.5 states in part, “The court shall not order a case into mediation where the amount in controversy exceeds fifty thousand dollars ($50,000). The determination of the amount in controversy shall be made in the same manner as provided in Section 1141.16…” The $50,000 limit represents the line drawn by the lawmakers in determining which disputants were eligible for pro bono services through the Court. Section 1141.16 strictly governs the eligibility for cases to utilize Judicial Arbitration. It was the intent of this legislation that the Court’s authority over cases ceases when a case is valued at more than $50,000. The Court’s program of administrating cases of unlimited size and allowing such cases access to the publicly funded ADR program is not consistent with these intentions, nor is it consistent with our guiding Principles.
Principle II.F, Compensation, provides:
Neutral alternative dispute resolvers are entitled to reasonable compensation for their services. Compensation is especially appropriate when parties voluntarily select the dispute resolution process and dispute resolver, and have the financial ability to pay for the services.
This provision relates specifically to your Party Pay Panel, and provides that “[a]rtificial caps should not be placed upon an alternative dispute resolver’s compensation. However, reasonable limitation on fees may be appropriate when necessitated by inability of the parties to pay full compensation…”
Principle II.H, Choice of Neutrals, states: “To the maximum practical extent, parties should be free to select providers of ADR services for their disputes.” By requiring all neutrals serving the LASC to provide their services on a pro bono basis, the pool of available neutrals is limited to those who are willing to volunteer. That pool is largely filled with newly trained mediators seeking to gain some experience, and tends to exclude seasoned, qualified full-time professional neutrals. This not only discounts the efforts of experienced neutrals but makes the mediation process less effective.
The LASC’s new Party Pay program caps the mediator’s fees at $150 per hour for the first three hours. What that does is effectively raise some mediators up to $150 and lower others, creating a one-price-fits-all plan. This may have been an effective way to introduce mediation services initially but once 25,000 mediations have been completed, the market is aware of the benefits of mediation. We believe that providers of dispute resolution services are not so easily interchangeable, and that there is a reason that the free market economy pays some $75 per hour and others $500 per hour. Our Principles underscore the concept that disputants, especially those who are represented by counsel, are best qualified to determine which kind of mediator best suits their uniquely individual dispute. Disputants should decide whether a dispute warrants a highly qualified mediator with specific subject matter expertise, or a less expensive mediator who might not possess those same qualifications. CDRC generally opposes any program sets one price for all mediators.
CDRC is guided by our Principles, and we work diligently with the various entities and providers throughout the state to see that ADR services are delivered consistent with their intent, and consistent with the intent of legislation which we have worked hard to shape.
I am confident that upon further review of these issues, the Court will decide to continue its mediation program in a way that is consistent with the intent of this legislation. CDRC will then ask its members, and the mediation community at large, to increase their pro bono contribution to this program. We will be able to represent that the disputants for whom they are providing these services would not otherwise have the access to our services, based either on their ability to afford to pay for them, or that the size of their case may not warrant paying for mediation.
Very truly yours,
Richard Bayer, Esq.,
President
cc: Julie Bronson, ADR Administrator
Richard Bayer, Esq.
President,
Dear Mr. Bayer:
Thank you for your letter of
The inception of the pilot project in the Los Angeles Superior Court was the result of a collaborative effort of the Court, bar organizations, and professional neutrals, and has been supported by the numerous organizations, including yours. The resulting program, devised to expand the Court’s public service, has been very successful and well received by those we serve. In appropriate cases, mediation provides parties with greater access through a simplified and economical procedure for obtaining prompt and equitable resolution of their disputes and reduces the inventory of cases that must be resolved through a more costly and time-consuming trial process. In short, it has served the objectives of the Legislature and the Judicial Council.
It is thus unfortunate that the success in attaining these objectives of public service and access is now perceived by you as having adversely affected the for profit activities of your membership and being in conflict with the private policies your organization promotes on behalf of its members. The organizers of our mediation program recognized the possible dilemma caused by the legislative directive that it be mandatory and responded by drafting the self-determination principles carefully. While the Legislature also limited mandatory participation to cases not exceeding $50,000 in value, it did not limit the possibility of additional mediation services and other forms of ADR. Thus, it stated, in Code of Civil Procedure Section 1775(f) that “[t]he purpose of this title is to encourage the use of court-annexed alternative dispute resolution methods in general, and mediation in particular.” It further stated, in Code of Civil Procedure Section 1175.13, that its intent was “that nothing in this title be construed to preempt other current or future alternative dispute resolution programs operating in the courts.” In keeping with these statements of intent, the Judicial Council has further directed, in CRC Rule 1631(a)(2), that the courts may order cases of a value in excess of $50,000 to mediation upon the stipulation of the parties. At no time has the Legislature or the Judicial Council established any means test as a prerequisite to eligibility for court provided ADR, and it would be inconsistent with the policy promoting access to do so.
Consistent with legislative intent and findings, our judges encourage litigants in civil cases to consider and use mediation and parties and counsel usually request assignment to one of the Court’s mediation programs. We regularly remind our judges of the limitations as well as the circumstances in which larger cases may be ordered to mediation and will continue to do so, but should a judge overstep his or her authority under the circumstances of a particular case, the parties and counsel are in the best position to request an alternative.
The efficacy of ADR seems beyond question at this time and California is indeed fortunate to have available the services of many accomplished professional neutrals, a number of whom are represented by your organization, in addition to a Judicial Branch that is committed to access and service to the public which, with the assistance of the legal community, we have been able to provide.
Very truly yours,
WILLIAM A. MacLAUGHLIN
Presiding Judge
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C: Hon Helen Bendix, Chair/ADR Committee
Julie Bronson, Administration/Alternate Dispute Resolution