Thursday, February 16, 2012

Court Funding

I heard LA Superior Court Presiding Judge Lee Edmon speak at a County Bar Association lunch recently about the current dire state of court funding. Due to the state budget crunch, the state legislature began drastically slashing the courts' budget several years ago, but the courts have managed to avoid the worst effects of these cuts by diverting capital funds and reserve funds to current operations. The bad news this year is that those funds are nearly depleted, and the courts are now faced with coping with the full implications of greatly reduced levels of court funding. Unless the bar is able to organize a successful campaign to restore prior levels of funding, we are faced with prospect of substantial delays in the resolution of court proceedings, especially civil cases.

I happened to be sitting with a couple of other mediators listening to this talk, and could tell from their reaction and comments that we had mixed feelings. Of course we all want to make sure litigants continue to have access to the courts, and we hate to see justice delayed, when people have a pressing need for resolution of their disputes. Let me make clear that I personally support higher levels of funding for the court system. On the other hand, mediators tend to see the courts as a bloated, cumbersome alternative to the more enlightened form of dispute resolution we offer. Mediators would like to think they can resolve more cases faster, cheaper and better than the courts can.

Can mediation save the state money? Mediators do sometimes save litigants money, but  mainly for legal bills, not as much in court costs. On the other hand, if I can help parties avoid filing an expensive motion, that will relieve a burden on the court system, and if I can settle an entire case, that might help the parties avoid an expensive trial. Still I think it's a dangerous idea to think that we can rely on alternative dispute resolution to help the state deal with budget shortfalls. For one reason, mediation functions best in a symbiotic relationship with the court system. The press of cases moving through the courts also helps move cases through alternative dispute resolution. If court delays increase due to funding shortfalls, that is likely to slow down the pace of all other forms of resolution as well. For another reason, the future of dispute resolution that many mediators imagine, while including a greatly increased role for alternative dispute resolution, is not necessarily going to be a cheaper system to operate. It's just going to operate differently.  I don't think we want to encourage the use of mediation just to save money, whether it can do that or not. We want to encourage the use of mediation to increase satisfaction with the system of dispute resolution.

(SEIU photo)

UPDATE (3/20/12):  A longer version of this post has been published in the March issue of ADR Times.

2 comments:

Anonymous said...

Joe,

The LASC will have to revise their symbiotic relationship with mediation especially when it comes to the pro-bono panel. I am already noticing a major groundswell with the neutrals of their distaste for the perceived abuse of that panel. If the court doesn't change its "local rules" to allow renumeration like they do in Santa Barbara and other counties, for their pro-bono mediations, I fear many talented neutrals will give up being on the panel and the quality of the court's mediation will suffer. Hopefully there will be some proactive efforts before it is too late.

Joe Markowitz said...

If it were up to me, free mediation services provided by the court would be provided by paid staff members of the court. Beyond that, the court would refer litigants to private mediators that the parties would pay for. But in the current climate of budget shortfalls, that is not going to happen. Right now the court is worried enough about holding onto the resources that they have in the ADR department. The danger is that they will have to reduce staff. So if they can continue to call on the bar and others to provide free services, they will keep doing so. And so long as there are people willing to provide services pro bono, and people are reasonably satisfied with those services, the court will keep the current structure.

The problem you are talking about is a real problem, but to some extent it should be self-correcting. If a member of the pro bono feels the system is being abused, they can reduce the number of pro bono mediations they accept. That is supposed to encourage parties to use the party select panel more. The more that people understand that if they use the pro bono panel, they do not get to choose their mediator and they are likely to get a less experienced mediator, the more they are supposed to gravitate to the party pay panel. And that system is supposed to keep everyone happy, since the litigants get referred to an experienced mediator for the bargain price of $450 for the first three hours, while the mediators all get paid for every hour of their time.