The grand unwelcome budget-cutting experiment in which California courts are currently engaged may result in the undoing of reforms courts have developed over the past several decades to better manage their caseloads. Ideas that both the federal and state systems now consider best practices, such as the individual calendar system and closer judicial involvement in pre-trial proceedings, are in danger of being thrown out. Case in point: the LA County Superior Court, the largest local court system in the country, is seeking to jettison case management conferences, one of the main tools the court has at its disposal to check in with the parties early in the case and help steer cases to resolution. The court is also planning a return to master calendars for some categories of civil cases. The only rationale for these changes is that this kind of individualized case management consumes a fair amount of judicial and administrative time. But scrapping case management conferences could leave the court with no contact with counsel unless there is motion practice--and the court is also trying to discourage motion practice! The danger is that these unsupervised cases will simply languish in the system and contribute to increasing backlogs.
If only the courts could figure out a way to save money and continue to speed cases to resolution. But wait! Wasn't mediation supposed to do that? Right now a fairly large proportion of the court's caseload is sent to mediation, which has a high success rate in resolving litigated disputes. Even if cases are not resolved at an initial mediation session, the commencement of settlement negotiations in mediation often bears fruit weeks or months later. Unquestionably, parties are able to settle cases with the assistance of mediators that they would have had difficulty resolving by themselves. These dispositions save court personnel time in reduced motion practice, settlement conferences, and trials.
With the courts in financial crisis, one might expect them to propose even greater use of outside ADR procedures. Ironically, however, the court's mandated budget-cutting will more likely lead to less ADR. That's because the proposed reduction in judicial supervision will create fewer opportunities to prod the parties into seeking mediation or other alternative dispute resolution procedures. Leaving the courts without an effective procedure to refer cases to ADR also raises questions about the court's ability to comply with Code of Civil Procedure sections (C.C.P. 1141.10 et seq. and C.C.P. 1775 et seq.) that mandate the referral of certain categories cases to arbitration or mediation. The courts will need to design effective alternative procedures to accomplish the same result, and it is not clear that they have the resources to do so.
To some extent, the courts may be able to rely on a changed culture of increased reliance on mediation. If litigants like mediation, they will continue to seek it out. They might have to pay more for the service if it is only available from the private market (since the court is also proposing to abolish the administration of its own panels of outside, largely volunteer, mediators), but the cost is likely worthwhile in a lot of cases.
But in many cases, inertia or other forms of reluctance must be overcome to refer cases to mediation. There are transaction costs involved in even entering into a discussion with opposing counsel about the selection of a mediator, and there are the costs of mediation itself. Some parties fear proposing mediation because that might be perceived as a message of weakness. Many parties and attorneys have doubts about whether a case is "ready" for mediation.
All these costs, fears, and doubts are reduced when the courts have a ready mechanism for referring cases to mediation, which litigants increasingly viewed as a necessary step in pre-trial procedures. Without that resource, the parties are going to be left more to their own devices, and mediators and courts will be challenged to develop new means of encouraging them to resolve cases outside of court.