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Mediate.com

Mediation Regulation

by Phyllis Pollack
August 2012

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

Recently, several different organizations have brought to my attention, a resolution on mediator regulation entitled SR-05-01-2012 proposed by Bay Area Lawyers For Individual Freedom to the California Conference of Delegates. Jo Hoenninger, Esq. is its author. The proposed resolution, if passed by the California Conference of Delegates at California’s Annual State Bar Convention in October 2012, could find a legislative sponsor and conceivably become law. As it presents some very controversial issues, I bring it to everyone’s attention.

Barbara Brown, in her President’s message on the Southern California Mediation Association’s website, succinctly set out the main themes of the proposal:

1. “Mediator” is defined as “a neutral third-party who for compensation conducts mediation.” (Emphasis added.)

2. Standards of conduct and minimum qualifications for mediators would be up to the Judicial Council.

3. Procedures for enforcing the standards of conduct would also be up to the Judicial Council.

4. The State Bar would be responsible for certification and registration of mediators.

5. The State Bar Court would be responsible for mediator discipline and would be directed to “use the same procedures in adjudicating the fitness of a mediator to mediate as it does in adjudicating the fitness of an attorney to practice law.”

The proposal also mandates that every county in California (all 58 of them!) administer an ADR program, requiring mediation in all matters involving less than $250,000. The current limitation involves less than $50,000 in dispute, and the mandate to mediate applies only to Los Angeles County.

This proposal has drawn many comments. Many have opposed the proposal for a myriad of reasons, including that mandating mediation in all counties of the state overburdens the already greatly strained court administrators throughout the state. (Witness the bankruptcy filings of several California cities in recent months and the budget crises in the courts.) This mandate also contradicts certain case law to the extent that the proposal requires the parties to mediate and to pay for it. Jeld-Wen, Inc. v. Superior Court (2007) 146 Cal. App. 4th 536, 540-543 prohibits requiring a party to pay for a court ordered mediation.

With respect to the regulation of mediators, many have noted that the minimum qualification requirements severely limit the pool of available mediators for no sufficient reason. For example, one must have”… a legal degree or a graduate degree in a specialty such as engineering, construction, medicine, sociology or psychology which is directly applicable to the types of mediations conducted.” Further, the requirement that one must have mediated 20 cases as a solo mediator “in substantive areas of law (or in the case of non-legal-mediations, in the mediators[sic] area of specialty, such as engineering, construction, medicine or family relations)” before being certified as a mediator presents an oxymoron in that the proposal does not allow an applicant to conduct mediations prior to certification.

Finally, the proposal provides that the State Bar, (already overtaxed) “…shall be responsible for certification and registration of mediators,” as well as being “…responsible for mediator discipline”, charging a “fee of up to $400 per year for registration….” As this seemingly applies to all mediators who mediate for compensation, it seemingly leaves out the community mediators and other volunteer mediators while at the same time, is aimed at attorney mediators (who are already paying bar dues of several hundreds of dollars a year) and non-attorney mediators such as doctors, psychologists, and therapists engaged in family law mediation, or experienced general contractors engaged in construction defect mediation et cetera, bringing them under the umbrella of the State Bar both in terms of certification and registration as well as discipline. As the State Bar is already overtaxed in disciplining attorneys, adding to its caseload will only decrease its ability to protect the public. Further, something tells me that non-attorneys are not anxious to be governed by a bunch of lawyers, i.e., the State Bar.

While the notion that mediators should be certified and regulated has been around for many years, and I do not oppose it, per se, I strongly believe that this is NOT the proposal by which to accomplish this task. Mediator certification and regulation is an extremely complex area, full of nuances; this proposal ignores them all and by its very simplistic approach, makes the matter much, much worse.

I heartily recommend that you read this resolution in full and send your comments to The Executive Director, Conference of California Bar Associations, c/o Kronick, Moskovitz, Tiedemann & Girard, 400 Capitol Mall, 27th Floor, Sacramento, California, 95814. Email: info@calconference.org.

… Just something to think about!

Biography


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.



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