Friday, December 28, 2012

End game

Nobody should be surprised that the "fiscal cliff" negotiations are going down to the wire, and perhaps beyond it. Republicans and Democrats have been fighting tooth and nail over these budget issues for years now, and nobody is about to concede gracefully to the other side. Only when both sides are absolutely sure that the deal on the table is the only deal available, and that the deal is better than the alternative--an unpleasant package of tax hikes and budget cuts that will take effect automatically in January--is there a possibility that both sides will accept the deal. In this situation, the deadline itself might be the only thing that will force the parties to make a deal, which means there is no reason to expect any deal to be made until that deadline is about to expire. Except that the deadline can be extended, and except that some of the parties think their leverage will actually improve after the deadline has passed, and some of these negative consequences start taking effect.

I've seen parties in protracted lawsuits reach this point numerous times. Contested lawsuits are not usually just about the money. If that were all that the parties had at stake, they would be able to resolve the dispute fairly easily. No, if the battle is hard-fought, that is because one or both parties believes that a matter of principle is at stake, or a personal insult must be righted. It's the same with members of Congress. Republicans firmly believe that the only acceptable way of dealing with our economic troubles is to keep taxes low and keep reducing the size of government, particularly on the kinds of social programs that Republicans believe are sapping our economic strength. Democrats firmly believe that these same programs are vital to protecting millions of people from the ravages of the economic downturn, and that they will also help stimulate the economy to faster growth. They also firmly believe we need to reduce inequality and raise revenues, and can accomplish both goals by increasing the highest marginal tax rates. If this were just a matter of choosing a compromise number between say, 35 and 39, that could be easily accomplished. But any number that we end up choosing will be taken as a surrender on a matter of the most sacred principle by at least one side, and perhaps by both sides.

How can parties be induced to accept the surrender of their principles? In private conflicts, it's sometimes effective to remind people of the toll the conflict is taking on them, and to ask them to imagine being able to put the conflict behind them. Sometimes they need to realize that no matter how long they negotiate or fight, they can't improve what they view as a lousy deal. At that point, the only choice they have is between peace and continued conflict. People only reach that point at the end of a long period of negotiation, when there is no more time left to negotiate.

Politicians might have an even harder time making peace than private parties. Perpetual conflict is part of their job description. Even if they reach one budget agreement today, they will just start the next day preparing for battle over next year's budget agreement, or some other issue of even more sacred principle. And politicians have to answer to their constituents, who are even less forgiving and understanding of the need to compromise than they are. Just like parties in private disputes, the politicians are only going to arrive at the point where they might accept a deal when there is no more time left to negotiate. And even at that point, a lot of them would just as soon continue to fight. 

Sunday, December 23, 2012

How to talk about guns

As the nation embarks on a debate about how to reduce gun violence, it might be a good idea to set some ground rules. First rule: it's useless to frame this issue in terms of constitutional rights. The meaning of the Second Amendment is a legal question that is determined by the Supreme Court. Arguing about the meaning of the Second Amendment is not going to get us anywhere, unless somebody's argument is going to influence the Supreme Court. Anyway, liberals just look foolish and hypocritical advocating a strict textual, originalist interpretation of the Second Amendment. They don't apply that standard when they claim that abortion and sodomy are constitutionally-protected activities. Why read another part of the Bill of Rights differently?

The good news for liberals is that even though the Supreme Court has determined that individuals have a constitutional right to own firearms, the Court left a lot of room for all kinds of regulations of that right. Nearly all of the ideas being floated for stricter control of weapons would probably be permitted under the Court's interpretation. If some gun regulations are not permitted by the Constitution, that is going to be for the courts to decide anyway, so it is no use arguing about it. First, propose and pass whatever gun regulations people decide are appropriate, and let the courts decide if we go too far.

My second rule for improving the debate comes from the mediation community. If we're trying to resolve a conflict, we need to ask participants to focus on their interests, rather than argue positions. Focusing on positions--whether we should or should not regulate guns more strictly--just drives people into opposing camps, and encourages them to assemble justifications for their views. If we instead try to find common interests, such as protecting the safety of children, we might have a more constructive dialogue about the most effective ways to accomplish that common goal.

Using that standard, we might have to recognize that there were parts of NRA lobbyist Wayne La Pierre's statement on Friday that could be used to start a constructive dialogue. LaPierre did try to address the common interest we share in protecting the safety of children by proposing the ideas of installing armed guards at all schoolhouses, and also cracking down on violent video games and other media depictions of violence. A lot of people might think these are bad ideas, but if we're going to have a constructive dialogue and debate that includes the gun-loving community--which is a sizable community--then the right way to react to the ideas  LaPierre has proposed is to thank him for his contribution to resolving the problem of gun violence, engage him in a discussion about the effectiveness of his proposed strategies, and ask him whether he is willing to consider any other methods of promoting the same goal of protecting children.

That leads to my third proposed rule, which is that we should demand empirical evidence supporting any suggestion for dealing with the problem of reducing violence. So if Wayne La Pierre tells us that the only way of stopping a bad guy with a gun is to install a good guy with a gun in every school building, we should demand studies that support that suggestion. Is that really the ONLY way? What about counseling? What about reducing the bad guy's access to the arms stockpile that his mother might have been assembling? And how effective is one armed security guard standing at the entrance to a school if the bad guy shoots him first? Still, we don't need to rule out increased security as one possible solution to gun violence.  Lots of schools already have guards and gates, and maybe we should consider beefing up some of those protections as part of the solution. But if Wayne LaPierre wants people to be open to his ideas, he needs to be open to other ideas as well. Including ideas that might keep dangerous weapons out of the wrong hands, or restrict access to high volume magazines, or require that gun owners at least pass the kind of licensing and safety tests that we demand of car owners.

Let's get all ideas on the table, look at evidence as to how well they work, and try to solve this problem in a constructive way.

Friday, December 21, 2012

Plan B

Last night, the Republican House leadership withdrew the tax part of their so-called "Plan B," which would have raised the top bracket percentage only for people making over $1 million annually. Plan B was withdrawn because they didn't have the votes to pass it. In negotiation parlance, Plan B was akin to the Fisher/Ury concept of BATNA (the best alternative to a negotiated agreement). In mediation, however, I find it more useful to focus the parties on the MLATNA (most likely alternative to a negotiated agreement), because parties who fail to make a deal can't count on getting their best alternative outcome. (In the budget negotiations we are now watching, the MLATNA would refer to the most likely scenarios that will occur if the president and the speaker cannot come to terms and pass a deal through Congress. More on those likely alternatives below.)

The withdrawal of Plan B is being portrayed as a failure for Speaker Boehner, but Plan B was actually a pretty clever gambit on his part. To get more of what the Republicans want out of a budget deal, Boehner proposed an alternate plan better for his side than the plan the speaker and the president were negotiating. Boehner thought he might pressure Democrats to agree to his alternative, otherwise they might be blamed for the failure of the negotiations. But first he had to get his caucus to support Plan B.

The real failure is of the Republican caucus to back the plan. This failure is almost incomprehensible, given that the only alternatives that currently seem available are either acquiescence to a negotiated agreement that would be worse than Plan B from the Republican point of view, or the dreaded fiscal cliff. If we go over the fiscal cliff, Republicans lose all their leverage on tax cuts. Taxes will go up automatically for all Americans. And the only alternative on the table will be the Democratic proposal to reduce tax rates for all but the top 2%. How could the House not bring that up for a vote once all the rates have gone up?

Here's what Representative Dan Burton said about that:
"If we go over the fiscal cliff, the president just comes back and says, 'OK, we're going to give tax cuts to everybody under $250,000.' Who's going to vote against that? Everybody'll vote for that. Everybody. Because it will be just a fait accompli. You won't be voting on whether you're going to do away with a tax cut, you're going to be reimposing tax cuts for everybody under $250,000. So the Republicans are in an untenable situation."
What explains the mentality of the House Republicans who rejected the best option they seem to have in these negotiations? Once they decided that none of the available alternatives are good enough for them, they are probably left with a worse alternative than Plan B. I've frequently seen this mentality displayed by participants in settlement negotiations. I tried to settle an employment discrimination case a while back, for example, in which the company offered x dollars, but the guy thought he should get more like 5x. The amazing thing was that this plaintiff knew he was almost certain to lose the whole case if he went to trial. He was very clear-eyed about it, and yet still could not accept the company's offer even though it was almost certainly better than any available alternative. It just didn't meet the standards of what he felt he was entitled to. A rational person should always choose x if the only choice is between 0 and x. But people are not all that rational. If they have an unshakeable belief that they are entitled to 5x, they would sometimes rather take 0 than settle for less than they believe is right.

That's what the Republican House majority chose to do last night. They decided they would rather have a big tax increase imposed on their constituents than compromise their "no tax increase" principles in the slightest. They rejected the possibility of agreeing to the tiniest possible tax increase that their leadership could possibly propose. This is not rational thinking. But it's not surprising either. The real world will find its way of imposing itself on the Republican House majority. But they are not going to be a willing partner to that process.

To be fair, I should mention that Plan B was probably doomed anyway, since the Democrats in the Senate said they probably wouldn't even have brought it up for a vote. And President Obama threatened to veto it. Still, it's got to be way worse for the Republican bargaining position if they can't even agree among themselves to support a plan that is the least damaging of all realistic alternatives to their beliefs. It's like refusing to agree to have your smallest toe amputated, even when you know that you will either die or lost your whole leg if you don't. It's amazing to watch a political party do that to themselves.

Wednesday, December 19, 2012

Budget impasse?

Getting closer to the deadline for avoiding the so-called "fiscal cliff," the budget negotiations between President Obama and House Speaker Boehner have reached a delicate stage, with the president suggesting concessions some of his supporters are having difficulty swallowing, and the speaker threatening a "Plan B" that would circumvent the deal the two principal negotiators have been discussing. These negotiations are a little different from those that typically occur in mediation, where the negotiators (usually lawyers) are usually constrained by the clients in advance from offering anything the clients have not authorized. In this negotiation, the "clients" take the form of members of the House and Senate, an unruly bunch on both sides. The extent of the authority they have granted to their "lawyers," represented by Boehner and Obama, may not be known until the package is voted on.

The real "clients" are of course the public. The most politically active members of the public are asserting their settlement authority by loudly advising their representatives that the deal that is being floated may already have crossed some lines. For the Republican base, that line is represented by raising anybody's taxes and the failure sufficiently to rein in perceived out-of-control government spending. For the Democrats, it is possible cuts to their most beloved programs, Social Security, Medicare and Medicaid, as well as the possibility that the president may back down from his promise to raise taxes on the wealthiest Americans. 

What I would say to try to calm these hysterical "clients" is to remind them that it is best not to say no too soon. Show some flexibility and movement if you want the other side to do the same. Wait until the other side has presented what seems close to their best offer before deciding whether or not to accept it. And don't compare the other side's offer to the ideal of what you think you are entitled to. Compare it to the alternative of no deal.

Because in the real world, we don't often get exactly what we think we are entitled to. Instead we get a choice between the deal we can get the other side to agree to, and the alternative of no deal at all. And we might have to offer to accept less than we would like just to find out what the possible deal is.

Looking objectively at the current budget negotiations between Speaker Boehner and President Obama, I don't see anything for either side's supporters to be panicked or outraged about at all. Both sides are following fairly standard negotiating tactics. Both are giving ground very slowly. At this stage, the two sides don't really seem all that far apart. And the outlines of a final deal don't seem all that unreasonable.

Everybody knows the final deal will consist of a combination of revenue increases and spending cuts. For the Republicans, the revenue increases will be too large and the spending cuts too small. For the Democrats, the opposite. But look at how much progress we have made since the stalemated budget negotiations of last year, when the Republican side would not agree to any revenue increases at all. Suddenly, the Republican side seems willing to accept tax increases of approximately equal size to spending cuts, which would have been unthinkable for them last year. And to give up their attacks on Medicare. To get those concessions, the Democratic side has had to show some willingness to trim slightly their demands for tax increases on the wealthiest Americans, and to tinker with the cost of living formula for Social Security. This all looks like standard negotiating to me. Neither side would be getting closer to a deal, which the parties are, without showing this kind of flexibility. People are kidding themselves if they think that the other side in these negotiations would bend if their side just held firm to their initial positions. Negotiating just plain doesn't work that way. The way it works is the way we are seeing it unfold in public.

Both side's supporters should feel confident that their representatives are doing their best to obtain the best deal possible, and are using every bargaining chip and bit of power at their disposal. At the end of the negotiations, we might quibble about whether one side or the other left a little money on the table. But for now we have no reason to think anybody is going to get anything less than the best deal possible for their side.

If the parties do reach a negotiated solution, nobody is going to be entirely happy with it. That's one definition of a negotiated solution. The test is whether it is better than the alternative. Critics of the concessions their side is considering in the negotiation process, would do well to consider the serious negative consequences of failure. Those include tax increases for nearly all Americans, layoffs for federal employees and contractors, market reversals and credit downgrades that will affect the financial condition of the entire country. And perhaps most importantly, the growing sense that this country is so polarized and dysfunctional that it can't even reach agreement on something as basic as a budget, something that should never have been so politicized in the first place.

It's a budget, and it necessarily has to reflect the spending and taxing priorities of all of us. The only way it could truly fail would be for the budget to end up making one party cheer and the other party feel that its priorities were ignored. So people should be happy if we end up with something that the most partisan advocates on each side are not entirely happy about. The alternative is worse.

Tuesday, December 18, 2012

Planned Early Negotiations

Has the rise of ADR affected the way advocates prepare and handle cases, or can we expect attorneys to continue their customary practices of pleadings, motions, discovery and trial preparation, until the day comes when the cases settle in spite of, or as a result of, those efforts? A lot of time and effort is spent on pre-trial activities that are not of much benefit even if a case goes to trial, and are even more wasteful if the case is settled. Is there a way of conducting litigation that might avoid some of that wasteful activity and lead the parties on a more direct route toward a negotiated resolution?

I'm not talking about what Professor Marc Galanter described years ago as litigotiation, which is a prevalent form of litigation that recognizes that most cases are eventually going to be resolved by a process of negotiated agreement, and uses all the processes of the court system as leverage and as aids to that negotiated outcome.  I'm talking about a method of lawyering that avoids the court system altogether, except perhaps as a fallback if the ADR process fails.

The legal profession is only beginning to formalize such a process. Last year, the ABA released a book called Lawyering with Planned Early Negotiations: How You Can Get Good Results for Clients and Make Money, by John Lande. Lande shortens his ungainly book title to the acronym of PEN, for planned early negotiations. I'd just as soon tell clients I will try to resolve their dispute if possible without litigation, but I'm interested to see that somebody has tried to create some structure and guidelines for practicing law in this manner. Lande even includes a helpful CD full of form agreements and other documents that might be useful in this type of practice.

So what is lawyering with planned early negotiations? Basically it means the lawyer is going to advise the client from the outset that the lawyer is going to try to solve the client's problem through negotiation, rather than a traditional adversarial approach to litigation. Clients are often reluctant to hear that message, instead usually wanting to know how their lawyer evaluates their chances of prevailing in court. But if we are honest with clients, we have to tell them in most every case, that the chances that their case will be resolved in court are fairly small. Most cases are going to be resolved by negotiated agreement anyway, so it makes sense to set the client's expectations for that from the start. As long as we're doing that, it makes sense to suggest trying to get to that point without litigation, a less familiar pathway for lawyers and clients.

To practice with the expectation of a planned early negotiated resolution might require changes to lawyer's engagement letters and creative fee arrangements. Lawyers then have to get used to the idea of forming constructive relationships with opposing counsel, which will help in exchanging information with the other side in a cooperative and informal way. Attorneys have to reach out to the other side to agree on a process that is likely to resolve the dispute without litigation. Lande also includes tips on negotiating and other techniques that are familiar to people working in the mediation world.

Divorce lawyers have led the way in this field, building up an elaborate body of collaborative practices, including what is known as the participation agreement . Such agreements generally require that if the parties fail to reach a negotiated settlement, the first set of professionals will be disqualified from representing the parties in court. This gives parties and lawyers maximum incentive to succeed in settling the case, and little incentive to litigate.

Can such an approach take hold in the commercial litigation context? It sounds like the opposite of the way I was taught to litigate years ago, when a particularly aggressive style of litigation was in favor, one that considered it almost unethical to do anything that would make your adversary's life easier. But it's really not all that different from the way many litigators have learned to practice. We often send out a demand letter as an invitation to a negotiation as well as a threat of litigation. We are supposed to try to resolve discovery and other disputes without bothering the judge about every disagreement, and it's usually in our clients' interests to do that. All trial lawyers recognize that the vast majority of cases will end in negotiated resolution, so we act as settlement counsel in cases we are simultaneously litigating, and conduct ourselves in a way that is not going to antagonize the other side unduly so as to jeopardize the ongoing settlement negotiation. Some firms use separate settlement counsel and trial counsel working simultaneously on a case, keeping each focused on their conflicting objectives.

The difference between the PEN process and customary litigation practice may come down to a decision at the outset of the case to put the threat of litigation into the background, instead of initiating a case by threatening or actually commencing a lawsuit. Corporate lawyers do that all the time. They can be just as aggressive as litigators, but they know they are employed to make a deal, that they might be blamed if they blow the deal, and that they will not be the ones to handle the case if the deal falls apart and litigation ensues. If business trial lawyers started adopting the PEN approach, they would have to start acting more like those corporate lawyers, which still allows them to advocate strongly for clients, but in the context of a planned negotiated resolution of the dispute.

In my litigation practice, I have had some success with an approach like the one Lande is describing. My fee is generally lower in such cases, but client satisfaction is generally higher, and I avoid the risk that can happen in litigation of a case getting bigger and more expensive than a client can afford, which can be disastrous for both the lawyer and the client. If I can provide the same or better outcome for a client without having to resort to a process that, let's face it, is more fun for lawyers than it is for clients, what possible reason would I have not to try it?

Sunday, December 9, 2012

Free mediation, revisited

The prospect of elimination of all ADR administration by the the Los Angeles County Superior Court, discussed in a previous post, seems about to touch off another debate about pro bono mediation. LA's court-connected mediation panels have always had a strong pro bono component, and this rankles a lot of practicing and prospective mediators, who quite rightly feel that mediators deserve to be paid, just as judges, court personnel and the parties' counsel all need and expect to be paid for their services. A lot of mediators will therefore say good riddance to the court's pro bono panel, and hope that the prospects for free mediation will be quite limited in the future. On the other hand, others trying to get their start in mediation depend on the court panels to gain experience and to gain contacts with litigants who might hire them in future cases. Without experience, they may have difficulty finding work.

I have a role as an officer of the Southern California Mediation Association serving members who fall in both categories, so I'm going to try to avoid taking sides in this debate. But it might be useful to examine some of the rationales for free mediation to see where it might find a place in the system. First, everyone should recognize that there is a justification for pro bono mediation in small cases, particularly where the parties themselves might not be able to afford legal representation, and where the amount in controversy doesn't justify payment of additional fees for professionals.

There is also a rationale for free mediation similar to the rationale for a free public system of justice, regardless of the amount in controversy. We need courts to enforce and develop legal rules that guide everyone's conduct. When we sign contracts, we usually don't expect to have to go to court to enforce them, but we should be willing to contribute as taxpayers to the maintenance of that court system to motivate all of us to abide by our legal obligations. Society also has an interest in the resolution of conflict in general, and we should therefore be willing to provide a free public system for that purpose. If mediators can resolve conflicts more efficiently than judges, then the courts have every reason to refer people to mediators without charge, just as they do not require litigants to pay judges. Under this rationale, however, we would expect the courts to pay mediators as part of the court staff, and some courts do that. I'm thinking especially of the staff mediators who do an effective job of easing the workload in appellate courts. If we believe the courts should be in the business of resolving conflict by alternative means, we should expand these programs in trial courts as well, but unfortunately in this time of budget cuts, it is difficult to propose adding such staff.

But the main reason for the maintenance of free outside mediation panels seems to be evolution. A lot of court mediation programs started out by asking for volunteers in the legal community to help settle cases. They didn't used to require any special training for these programs, but depended on people willing to serve an occasional morning or afternoon to reduce crowding and delays in the court. A lot of programs still operate that way, such as the federal court mediation programs that rely on a large pool of volunteers who are only expected to serve the court on an occasional basis. (Those panelists are permitted to charge fees after a set number of hours of free services, however.)

The LA Superior Court panel started that way also, but grew so large because of the huge caseloads generated by this massive court system, that it began to resemble a training ground for professional mediators who then started demanding pay for their more-than-occasional service. When the court started requiring more training to gain access to the panels, these demands started to sound more reasonable. Courts are able to retain a supply of volunteer mediators because there are still a large number of people exploring the prospect of obtaining experience in the field, and hoping to succeed as private mediators. But many of these people are trapped in a vicious cycle, having to contribute substantial amounts of time to mediation for cases that do not justify such treatment, only because litigants have been conditioned to expect free mediation.

The LA Superior Court has attempted to reconcile these competing demands by trying to limit the cases suitable for pro bono mediation, and by encouraging the use of a pay panel of more experienced mediators. I can attest from having served for two years on the court's ADR committee that most of the judges on that committee are quite sympathetic to the demands of mediators to be paid for their service. But pro bono mediation remains over-utilized, in the view of many people struggling to make a living in this field.

Will the possible elimination of the court program force more litigants into choosing private, paid mediation? And wouldn't that be a good thing? Perhaps. Litigants have been conditioned to expect to be referred by the courts to mediation, and have also learned to take for granted the availability of a large free or reduced-fee panel. But they have also learned to appreciate the value of mediation. At this point, they ought to be willing to pay for the service, which will after all potentially save them more in attorney's fees in most cases than mediation will cost. On the other hand, if the court is not processing all the thousands of cases that are currently being referred out to mediation, inertia might just leave many of those cases languishing. They might not mediate at all if they aren't pushed into mediation, and if mediation costs money. On the whole, therefore, it seems that the elimination of court panels, except perhaps in small cases, might end up helping more established private mediators, even though this elimination would be expected substantially to reduce the demand for mediation services in total, and will probably make it more difficult for less experienced mediators to gain experience.

Wednesday, December 5, 2012

Court-Annexed Mediation Not Dead Yet

The news is worse than expected. I had been thinking of the impact of court funding cutbacks here in Los Angeles primarily in terms of how cutbacks and delays in courtroom services would affect the demand for ADR. That was the focus of the program I moderated at the SCMA conference last month, where we also touched on the possibility of cutbacks to the ADR program itself, but did not anticipate its complete elimination. This week I learned that the entire LA Superior Court ADR program, one of the largest in the nation, is indeed in jeopardy.  A recent message from the chief judge announced that the court anticipates elimination of all non-mandatory elements of the court's ADR programs next year. At a meeting of the court's ADR committee today, we were told to anticipate reduction or elimination of all services by the ADR program as of June 30, 2013. Worst case, the court staff would no longer be administering any kind of ADR program using outside mediators, but would still retain the judicial settlement officers the court provides. Needless to say this was not a cheerful meeting.

The most positive way of spinning this news would be to say that it is still business as usual for court-referred ADR for the next six months, but after that the program will be phased out in part or totally eliminated. So if you hear people say that court ADR has been eliminated, rest assured that it has not . . . yet.

If all court funding for ADR is eliminated in June, that would also mean the court would no longer receive grant funding for ADR administration, but other agencies would potentially be eligible for that funding. It is hard to see, however, how any other agency, such as the LA County Bar Association (which is a possibility), would have the capacity to meet the terms of the grant. It requires a lot of personnel to administer.

Obviously this is a major disaster for the court, as are a lot of the other cutbacks, and it presents a huge challenge for people interested in doing mediation who were able to gain experience from being assigned pro bono cases by the courts. Nevertheless, the prospect of destroying the public system represents an opportunity for private mediators, as well as for organizations such as the Southern California Mediation Association, to fill the void.

Consumers of mediation services, and even mediators, don't always appreciate just how much work goes into court administration of these programs, and how much they cost. Court administrators have to enforce the eligibility requirements for membership on the panels, handle intake of cases for mediation and assignment to mediators, follow up to make sure mediations have been completed, and handle complaints. Any private organizations hoping to take over these responsibilities will have to re-invent an elaborate machinery the court has painstakingly built up over many years.

Still from Monty Python and the Holy Grail


Saturday, December 1, 2012

Ten courthouses

Although the budget crisis in California has lasted for years, the state court system has until now managed to avoid the worst possible scenarios. Courts have survived these hard times by depleting their reserves and diverting their capital budgets for operations. Having exhausted those strategies, and with no prospect of restoration of full funding in sight, the courts have finally had to take more drastic actions to grapple with huge funding shortfalls. Recently, the Los Angeles County Court system announced their plan to deal with budget cuts by closing 10 regional courthouses, including the branch courthouses in Beverly Hills, Malibu, Pomona, and Whittier. These facilities may end up staying open only for such purposes as paying traffic tickets. Their courtrooms will be shuttered.

A lot of ADR advocates are not going to mourn the loss of courthouses, and some think the decline of the public system could even be good for the private mediation business. To look at court funding cutbacks that way, however, is to ignore the real impact that closing courthouses will have. For people who need access to court, whether to process restraining orders, get a divorce, collect a debt, or obtain compensation for injuries, it is not good news to be faced with more delays and higher costs. It also marks the decline of a concept of neighborhood justice that all these branch courthouses represented. In a far-flung county as large as Los Angeles, that concept spared a lot of people a lot of long trips downtown. Now litigants will have to adjust to a more centralized, more crowded, and much slower system.

Mediators depend on the court system more than they sometimes credit. Even if we are only pointing out the system's imperfections and high costs, we are still relying on the court system as an inducement for parties to settle. Looking at the system in a more positive light, I like to be able to advise people embroiled in a dispute that they always retain the option of having their case decided by a judge or jury. It's much harder to tell people they are out of options. Wouldn't we rather allow people to retain the comfort of a public justice system even if they don't need to use it? When parties sign any contract, they feel they have the full force of the law behind them, even if they don't need to go to court to enforce it. When people resolve a dispute through mediation, they should also understand that their agreement bears the force of law. We can only provide that assurance if we have a functioning court system.

Courthouses function as gateways as well as destinations. Litigants commonly think of the courthouse as the place that will decide their dispute. But the courthouse might be better thought of as an intake system for disputes. Resolution of the dispute may be farmed out to an arbitrator or a mediator, or parties may reach a resolution by their own devices. Very few civil cases will end by trial even if we had all the courthouses in the world available. If we think of the courts more as an intake system than as a final destination, I wonder how efficient it is going to prove to force litigants to start their journeys in the massive downtown courthouse. Faced with that prospect, will litigants devise other ways to commence the process?