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


1 comment:

Jan Frankel Schau said...

As a mediator, I tend to look at this as an opportunity, rather than a disaster. Has the time come to do away with the concept if free mediation for any cases that are not being litigated pro bono? Maybe we can begin to think differently and finally bring the concept of pro bono back: for those in need, a charitable contribution of volunteers. Otherwise, maybe lawyers and litigants will simply have to budget an additional$1-3,000 per case per side to pay for a professional mediator.