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Court Ordered Mediations: Is it Time to Be Honest about their Efficacy?

by Jan Frankel Schau

From Jan Schau's blog.

Jan Frankel Schau

There is an on-going controversy in Los Angeles County about "court ordered" free mediations. On the one hand, the ADR Committee has steadfastly maintained that Los Angeles is under a specific State requirement to make pro bono mediation available in all cases. On the other hand, mediators have experienced frustration in both the challenge of settling these "ordered" cases and the challenge of building a private practice when all cases are afforded an opportunity to mediate in L.A. County for free. This all came to a head this week at a meeting of the Los Angeles County Bar Association.

According to the Los Angeles Daily Journal article which covered the debate: "Though the debate was civil, Bendix lashed out at the two mediators in a hallway after the meeting. She told Parselle she thought he had been "disingenuous" in the debate when he said low-income litigants would still be able to get free mediation through the court's fee-waiver process if the resolution passed. Bendix told him that his position reflected a "profound misunderstanding" of the fee-waiver process. "I don't want to participate in these discussions with you if you're going to be dishonest," Bendix said sharply. "This is so wrong."

*Let me take this opportunity to apologize to Charles Parselle for suggesting or implying that he made any accusatory or
untoward remarks. On the contrary, the Daily Journal article made it very clear that he was quite puzzled by what had just happened. I have had the opportunity to speak with Mr. Parselle, and he confirms the accuracy of the Journal report and add that in response to the judge's remarks to him, he did not make any response other than to express his puzzlement and repeat that the legislative amendment contemplates that free mediation should remain available to indigent litigants who have obtained a fee-waiver from the court."

Although the Southern California Mediation Association officially took no position on the pending legislative changes when President Nikki Tolt was asked by the reporter for the Daily Journal, the position articulated by Mr. Parselle at this meeting was generally supported by the SCMA last year, when I was the organization's President. I was not present for the LACBA presentation, but I am very familiar with this longstanding dispute and agree personally (and as Past President of SCMA) that change is needed and many cases are "ordered" to mediation and offered free services when the litigants could well afford to pay a mediator for her work. What's more, it is my personal opinion that this would result in higher settlement rates and actually be of greater service to both the court and the litigants!

This week I had the opportunity to co-mediate a case with a colleague who has not accepted a "court-ordered/free" case for five years. He began the day with the following reassurance to each side: "I think this is going to be the day we get this done. It really needs to happen today"...(and to one side: "Amazing things happen between 5 and 6 P.M."). Indeed, the case settled, although it was nearly 7:30 P.M. At its conclusion, he felt triumphant, relieved and tired. I felt something different, after the Plaintiff, who had gotten an excellent settlement, would barely shake my hand. I was left wondering whether we had done justice in achieving the litigators' goal of settling the case that day, but left the plaintiff himself extremely unsatisfied. On the following day, my colleague reminded me cheerfully: "Jan, that's why they hire us. They want us to settle every case, and in the main, I do. It's in at 10:00 A.M. and out with a settlement by 6:00 P.M."

It's taken me several days to process this, but I offer this observation. In court-ordered cases, the parties have no expectation that the mediation date is the day they will settle the case. Indeed, I often begin those hearings by inquiring: "Why are you here?" I do this so that both sides "buy in" to the notion that one possible outcome is settlement, but typically, we all know that there are many other possible outcomes--further discovery, further negotiation or a future settlement date. So it is no surprise that the statistics show that private cases are settled at an 80-90% rate, whereas court-ordered ones are barely more than 50/50.

I'm not so sure it's about who pays for the mediation, but if the parties (and their attorneys) are given free choice and mediation is truly voluntary, chances are greatly improved that the date they choose will be the date each party is ready to resolve the case.

Wouldn't that be a better use of resources for all concerned?

Biography


Attorney Jan Frankel Schau is a highly skilled neutral, engaged in full-time dispute resolution. Following a successful career spanning two decades in litigation, she has mediated over 700 cases for satisfied clients. Ms. Schau understands the nuances of trial and settlement practice as well as client relations and balancing the needs of their representatives with the risk and expenses of trial. Those who have used Ms. Schau’s services recognize excellence in her persistence, optimism, creativity and integrity.

Ms. Schau was the President of the Southern California Mediation Association in 2007 and is recognized as among the most outstanding mediators in Southern California in the mediation of civil disputes by her peers and clients. She also serves as a Trustee of the Board of Directors of the San Fernando Valley Bar Association, and has presided as Chair of it’s Alternative Dispute Resolution Section and Litigation Section. She holds a Certificate of Advanced Skills in Negotiation from the Straus Institute for Dispute Resolution of Pepperdine University as well as from the Western Law Center for Disability Rights at Loyola Law School.



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Website: www.schaumediation.com

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