Neither the court nor SCMA are going to be able to make up entirely for the loss of the court's effective procedures for referring cases to mediation. The court has apparently decided, however, that it can no longer afford to take any steps to push litigants to take advantage of outside mediation services. Mediators are available to assist the court in settling cases, but without some kind of push toward mediation, many cases are likely to remain languishing in the system due to inertia.
|Hon. Daniel Buckley|
Although other civil cases will continue to utilize the individual calendar system, they will still suffer by being given less time and fewer resources to resolve motions and other pre-trial disputes. The court encourages parties to work out those pre-trial disputes themselves, and bother the court less with demurrers, motions to compel discovery, summary judgment motions, and the like. Will this kind of cajoling to undertake voluntary abstinence from motion practice be effective in conserving precious judicial and administrative time? One way that was suggested by the panelists for dealing with the lack of court time to deal with motions and discovery is to hire referees to supervise some of those steps. Another is to try to obtain judicial help with informal resolution of such disputes. These are good ideas, but they still reflect the mind-set of obtaining an authority figure to resolve a problem for the participants.
An even better idea might be to encourage attorneys resolve those kinds of pre-trial issues by themselves, and there was some talk on this panel about better communications between counsel to resolve problems. Another possibility is to call a mediator to help counsel work through issues that they know the court is going to have less time and less patience to resolve for them. I've handled mediations where the parties felt they did not yet have enough information to settle the case, and in those cases I always encourage them to agree to exchange information and documents voluntarily without the need for formal requests, and come back after they have done that to see if they can settle the case. It usually doesn't take long to get attorneys to commit to reciprocal agreements to exchange information, saving them both the aggravation of of serving and responding to interrogatories and document requests.
Attorneys should try to reach such agreements themselves with opposing counsel, or to call on mediators to help resolve discovery problems, possibly even to supervise an informal exchange of documents without the need for requests, objections and motions. Mediation need not be reserved for a special one day event in which the parties attempt to resolve the entire case. It can be an ongoing process designed to reach agreements on large and small issues on the way to possible overall agreement, or even to smooth the way to trial. That would save the parties time and money, and help unclog the ever more overburdened courts so they can continue to handle the cases that require more judicial attention in a timely manner.