Saturday, March 2, 2013

New era

The official word came down yesterday from the LA Superior Court ADR program, in a notice sent to all members of the court's ADR panels. The entire department is shutting down by the end of June. No more cases will be sent to mediation after this week. All current cases are supposed to be set for hearings by May 10, 2013. It is truly the end of an era for court-related ADR in Los Angeles County.

Whatever gripes users and mediators may have had with this program, and I have heard lots of them, the size and scope of this program was still a truly impressive achievement for the court. The ADR department successfully helped resolve thousands of cases every year. Thousands. It is sad to see it simply shutting down, without any adequate plan having been put forward by the court to assist litigants in taking advantage of ADR. Instead, what we are about to see unfold is an experiment to find out to what extent private and non-profit organizations can pick up the slack, and whether litigants and attorneys have learned enough about the benefits of mediation and other forms of dispute resolution that they will seek out alternatives to court on their own.

Maybe the new era is going to be something like the Interstate Highway system. When the federal government set up that program in the 1950's, they had to decide whether to follow the model of some states that had already built limited access turnpikes or parkways, in which the rest stops and gas and food facilities were designed by the state and located in a way that did not require drivers to exit the highway. It cost the state a little more to design highways that way, but they could recoup that cost through concession fees from the operators of those facilities, and they were providing a service to drivers. The advantage was easy, controlled access to a reliable system of regularly-spaced facilities. The disadvantage was that those facilities all suffered from a certain boring uniformity, as they had to conform to the state's rules. Generally, they also offered a limited number of food options.

The designers of the Interstate system chose not to follow that example. The interstates generally have no tolls, but they also have very few facilities. The private market was supposed to spring up and provide convenient food and gas options off the exits of these new highways. And for the most part, the private market did supply the needed facilities, but in a somewhat chaotic and uncoordinated way. As a result, when you travel the interstate highway system, you might find it a little confusing to find the facilities you are looking for. They aren't always well marked, and they sometimes require you to take a little detour to locate a restaurant or gas station. You might face some uncertainty about whether to take the next exit, where you can see a sign for your less favorite fast food restaurant, or take a chance and travel a little further to find something better. Either way, you have to exit the system, go find what you are looking for, and then figure out how to get back on. You also frequently find two gas stations right next door to each other, and sometimes both go out of business due to the competition. But you have a lot of choices, as you are free to hunt among the many brands of gas, food and lodging that are usually located within easy access of the freeway exits.

Like the interstate highway system, the LA Superior Court system is about to ditch the convenience of a one-size-fits-all ADR service. That service gave thousands of litigants easy access to three hours of free mediation services, but if you went that route, you were randomly assigned a mediator, and you had to comply with court deadlines and other rules for using the service. Now everybody has to get off the freeway entirely. There will be a certain amount of chaos and confusion, as parties learn how to navigate the exits and entrances and find the kinds of services they like. And some people will just hold it in until they reach their destination because they find the whole process of locating and choosing a mediator too scary.

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