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Crisis in the Courts: Making a Virtue out of a Necessity

by Joe Markowitz
October 2013

This article originally appeared in the Volume 40, Number 9, September 2013 issue of the Advocate. Copyright © 2013 Consumer Attorneys Association of Los Angeles. All rights reserved. Reprinted with permission.

Joe Markowitz

Crisis grips the California court system. In Los Angeles County, budget cutbacks have forced the courts to do away with court reporters, reduce clerical staff, close 10 courthouses, and assign personal injury cases to a master trial calendar system. At a time when ADR might be considered one of the solutions for relieving the increased burdens on the civil trial courts that these changes will impose, the Superior Court in Los Angeles instead took the surprising step of closing its entire court-connected ADR program. Everyone affected by the court system will have to adjust to increased delays and reduced services, and no one can predict when, if ever, the system will return to “normal.”

It might be comforting to think that as the economy improves, we will eventually enjoy business as usual. That seems unlikely, however, as the taxpayers’ acceptance of reduced funding for public services is starting to have the look of a permanent condition. And even if we could return to a semblance of the way things were, we might not choose to go back. It would be a shame to miss the opportunity to re-examine whether business as usual would best serve the profession’s, as well as the public’s, needs. In other words, as long as the system is broken, we might as well think about how we would design an ideal justice system, rather than simply hope that we can get back the far-fromperfect system we used to have.

A perfect justice system

So even though we probably can’t achieve it, and we might not be able to afford it, let’s think about what a perfect justice system might look like. Ideally, wouldn’t we want the courthouse to function as a place where parties in conflict are treated with dignity and respect, where they have an opportunity to tell their stories, and more importantly, where their complaints are actually heard, and where they can expect to find a fair resolution of their disputes at a reasonable cost? Under the best of circumstances, how often does the justice system live up to those ideals?

Our trial courts allow fewer and fewer cases to proceed to a full hearing, and the available substitute procedures for that full hearing – depositions, disposition by motion, and settlement – often leave parties feeling unsatisfied. Even when access to the courts is assured, litigation is still too expensive, and the adversarial process is often so painful for the parties involved that it can exacerbate rather than resolve conflict. While this system can sometimes be lucrative for the attorneys, the cost of justice is often so high that it defeats even the legitimate purpose of getting lawyers paid for their services. And if lawyers are left with dissatisfied clients at the end, they end up frustrated even in the cases where they are adequately compensated.

The rise of ADR, particularly mediation, was supposed to cure many of these ills. But mediation does not operate to everyone’s satisfaction either. Parties are not always sure what to expect from that process. The development of accepted standards and practices is still in its infancy. Mediation still means a lot of different things to different people. And parties to mediation, just as in court, do not always feel they are treated with respect, that they have the opportunity to tell their stories and be heard, or that they are given the sense that their dispute has been resolved in a fair manner, all of which they have a right to expect from any system of dispute resolution. Instead, they may feel they have negotiated away their rights just to avoid the costs of trial, or the possibility of an unfair result in a flawed court system.

Some ADR problems

The L.A. Superior Court developed one of the largest ADR programs in the world, one that processed thousands of cases with fairly good results. Still, it suffered from certain inflexibilities and limitations. The court sent most cases, as a default option, to randomly-assigned mediators, of varying levels of experience. Because parties were operating under a certain level of compulsion, and did not always respect the process, ADR referrals were often viewed as a cumbersome additional step, rather than as a time- and money-saving way of resolving some or all of the issues in the case. And because these randomly assigned mediators were not paid for the first three hours of service, the program bred resentment among mediators who devoted a fair amount of time to obtaining the training and experience necessary to serve on the panel. I have frequently heard the complaint from volunteer mediators, especially when the amount in controversy is substantial, that they should not be the only professionals in the room who are not getting paid, particularly when they are rendering a service that could actually save the parties substantial costs and risks. (I have made that complaint myself as a member of that panel.)

The program was designed by the court tended to serve, primarily, the needs of the court. And because that program was designed by judges and lawyers, it was also replete with rules and it operated under the threat of sanctions. The court program contained detailed rules governing appointment to the court panels, rules governing the assignment of cases, rules requiring completion of mediation by specified dates, and consequences for the failure to abide by these rules. To a great extent, the court program was a one-shot, one-size-fits-all mediation service. When cases did not settle after court-ordered mediation, parties were left to their own devices, or ordered back to another court program, most commonly mandatory settlement conferences with a judge who had no connection, and little time to deal with the case. Without a court-assisted mediation program, the court is going to be even more dependent on MSCs, as well as in need of private services to which cases can be referred.

The court program also limited parties’ choices, particularly if they selected the default option of the random select panel. That saved parties the trouble of haggling over the selection of a mediator, but deprived them of the ability to select a mediator appropriate to their case.

Still, while a lot of people, including a lot of mediators, loved to hate the court ADR program, most seemed to appreciate its substantial accomplishments. In particular, the court program provided a highly valuable service for relatively smaller dollar amount cases in which the parties have difficulty justifying the cost of a private mediator. The demise of this valuable program will leave a gaping hole.

SCMA: Select a Mediator Program

The unexpected closing of the L.A. Superior Court ADR program has presented the organization of which I am president-elect, the Southern California Mediation Association, with the opportunity to contribute new solutions. Our task is to help SCMA members continue to find opportunities to practice mediation, as well as to assist overburdened courts in reducing backlogs, and help parties in litigation obtain an expeditious and fair resolution of conflict. We also want to help lawyers resolve cases that have become burdensome for both the lawyers and their clients. Even though we do not have all the resources of the former court program, we want to maintain its positive features, and improve on some of its negative aspects described above. This is called making a virtue out of necessity.

To accomplish these lofty goals requires re-thinking the elements necessary to make a mediation program attractive to litigants, attorneys and the court, as well as to make it work better for mediators. It requires reconciliation of potentially conflicting interests, something that mediators are supposed to be good at. It also requires consideration of marketing, administration, and cost. The project will involve breaking some old rules, and making some new ones.

SCMA has developed a new Select a Mediator program designed by mediators, not by the court, although we also try to address the needs of the court. Such a mediator-designed program ought to reflect the values of mediation. A system designed by mediators should be voluntary, meaning that parties should not be coerced or compelled to participate. Such a system should also be flexible, meaning that parties and mediators should have the ability to design a process that meets the needs of each case. A flexible process, for example, might start with a telephone conference call with the mediator, and perhaps involve a series of meetings, rather than be expected to limit itself to a one-time, one-day or three-hour event.

A system designed by mediators should be participatory, meaning that it should allow parties to control the conduct and outcome of that process themselves. The parties should be able to choose their mediator, and decide how much they are willing to pay. Participants can specify the criteria they think are important, e.g., whether they want a mediator with subject-matter expertise, whether they want a lawyer, judge or nonlawyer mediator, whether they need a mediator with substantial experience, and how much they are willing to pay. A voluntary, flexible and participatory system would then assist the parties in selecting a mediator that satisfies their desired criteria. Such a system will also allow mediators more leeway in determining their own rates and procedures.

Mediation referral system

A mediation referral system designed by mediators should operate with a minimum of rules. It should be helpful. It should be friendly. It should be easy to use. It should serve the needs of a number of divergent types of users and providers of mediation services. The SCMA program starts with an improved searchable directory of mediators on SCMA’s Web site. Only SCMA members are entitled to a listing in that directory. SCMA members are almost by definition committed to continuing their education, and to building a professional organization. In addition, those members who seek listing in SCMA’s directory must certify that they have taken at least a 40-hour course in mediation or the equivalent, or were already members of the court panel. In that way, SCMA can assure users a similar or greater level of quality of mediation services as compared to the existing court panels.

Until the SCMA directory proves its value, and at least through the end of 2013, there will be no additional fees to members for listing in the directory, and no administrative fees are being charged to users of this service. I repeat: At least initially, we are making the SCMA Select a Mediator Program a free service, both for our members and for users.

The SCMA program allows both users and mediators much greater flexibility in setting the cost of mediation services. Parties will not have to choose between a three-hour free service in which mediators are randomly assigned, and a service that allowed users to select a mediator, but set a fixed $150/hour rate for the first three hours. Instead, users should be able to obtain a much larger range of services and costs. SCMA will not require any of its members to work for free or at reduced rates. On the other hand, SCMA will not prevent any members from offering services for free or at whatever rates they choose. We expect that there will be a sizable number of members willing to offer services at very reasonable rates, particularly for smaller-value cases. In addition, we are considering offering a special reduced-rate program for appropriate cases.

Note that the SCMA program corresponds to some extent to the “random select” and “party select” panels to which litigants are accustomed. However, the SCMA directory is organized in the opposite way as the court’s panels. The court program used the “random select” threehour free mediation as the default option. SCMA’s program uses the market-rate panel as the default option, but that panel offers a wide range of fee structures, set by individual mediators. Users can search our directory by geographical area, by area of law specialty, and by rate range. In addition, members of the panels list additional biographical and background information about their experiences and approaches to mediation, enabling users to choose an appropriate mediator in all cases.

To maintain quality and satisfaction with the program, we are forming a committee to review any complaints attorneys or parties may have about mediation sessions conducted by SCMA panel members. We must do that in a way that maintains the confidentiality of the initial mediation sessions. Because we believe in mediation, the SCMA complaint system will probably rely heavily on more mediation to resolve any disputes.

The SCMA program is not going to solve all of the problems the courts are experiencing, but it should at least reassure current users of the court panels that they will still be able to find mediation services at reasonable cost. As for resolving all the other problems of the courts, and the legal profession itself, I can only offer a few ideas.

Crisis and opportunity in the legal profession

The current crisis goes well beyond the court system, affecting the legal profession in general. It’s not only the continued sluggish economy, but also changes brought about by technology, the outsourcing and automation of legal research and routine document preparation, and broader electronic availability of legal information, forms and advice. All these innovations have reduced the demand for legal services performed in the old-fashioned way by human lawyers. As a result, recent law school graduates are having difficulty finding jobs; many law firms are shrinking; career satisfaction is as low as ever. Surveys report high levels of stress among lawyers, and disturbingly high levels of depression, suicide, alcoholism, and other symptoms of dissatisfaction. Some of this stress is undoubtedly caused by the economics of a changing legal market; but a lot of dissatisfaction existed even while the legal market was strong. That suggests there is something about the whole adversarial system of justice itself that is unhealthy for practitioners and participants.

To remain competitive, to remain relevant, to remain useful, to maintain our sanity, a lot of us are re-thinking the way we practice law. Before we even have to contemplate the larger changes in the legal profession, and the defects in our justice system, our local courts’ budget problems are already requiring us to change the way we do business.

To keep the system functioning necessitates adjustments in trial and pre-trial practice. I heard Judge Buckley speak at a CAALA-sponsored event recently on the budget crisis in the courts. The judge made clear that the system will grind to a crawl unless lawyers reduce their need for judicial services. That means lawyers need to file fewer motions and to resolve more disputes without seeking court intervention. It means the “aggressive” style of litigation that I learned at my first law firm job in the 1980s is a style the courts can no longer afford. But it’s not only the courts that are forcing changes in litigation practice. Clients are also demanding that we produce results more efficiently, and that we offer more creative approaches to conflict resolution.

What I’m suggesting is that all practitioners should consider incorporating ideas from the alternative dispute resolution community. Indeed, we almost have to do that to adjust to the diminished availability of the court system, and to the demands of clients in a more competitive atmosphere. That means adopting more collaborative, problem-solving approaches to resolving legal disputes. Instead of filing a complaint, set up a meeting with an adversary. Instead of filing a motion to compel discovery, participate in a genuine give-and-take session to obtain agreement on information that parties need to exchange. Instead of taking an adversarial approach to every problem, try to maintain cooperative relationships with opposing counsel.

Does this mean all of us are becoming mediators? To an extent, but vigorous advocacy will also retain an important role. Is a more collaborative approach consistent with the ethical duty to represent a client zealously? Yes, because what clients want is a resolution of their disputes. Clients are not generally clamoring to spend lots of money on litigation so that they can perpetuate conflict. Is a more cooperative approach to practice good for business? Hopefully yes, because all signs are telling us that the traditional approach is just too expensive, too painful and too unhealthy for both lawyers and clients.

[Author’s note: The title of this piece is borrowed from the title of the SCMA fall conference at Pepperdine Law School in Malibu on November 2, 2013, which will explore the expanding applicability of mediation processes, and will include a track of programs geared toward advocates.]

Biography


Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own.  In addition to general commercial litigation, Mr. Markowitz has expertise in  intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation.  Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in  the Central District of California, as well as private mediations.  He has served since 2010 as a board member of the Southern California Mediation Association.   



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