Southern California Has a Mature Mediation Market


by Deborah Rothman

July 2013

Deborah  Rothman

The Los Angeles County court system has struggled to maintain essential operations through several rounds of drastic budget cuts and did, in June, 2013, shave millions more from its budget by closing all courtrooms in 10 regional courthouses and eliminating most court-connected ADR programs.

Case filings in Los Angeles County typically increase about 1 percent year over year. Courts have to maintain a 1:1 ratio between case filings, on the one hand, and settlements and dispositions on the other, to prevent older cases from creating a backlog in the pipeline and further increasing the time between filing and trial. With fewer courtrooms, more case filings, criminal trials taking priority and emergency court services being threatened, there is understandable concern that the closing of the court’s ADR program will result in further delays and backlogs. And although a number of civil trial courts will convert to settlement courts, it is feared that the demand for judicial ADR will far outstrip availability. That fear is baseless: there is a large enough supply of settlement resources in Los Angeles County, ranging in price from free to over $1,000 per hour, to more than meet the needs of all litigants who want to try to settle their lawsuits.

The elimination of the court’s ADR program need not impact the provision of justice and should not be viewed as a tragedy of the same magnitude as the loss of court personnel and courtrooms. There is a glut of mediators at all price points in Los Angeles; the market will have no difficulty handling the caseload that the judicial ADR program will no longer handle.

Background of court-provided ADR. The court's ADR program has provided free or low-cost mediation services to civil litigants since 1986, when the state Legislature passed the Dispute Resolution Programs Act (DRPA), which established and provided funding for informal local dispute resolution programs in Los Angeles County. Any case under $50,000 was eligible to be ordered into mandatory mediation, and in practice, many more cases were judicially strong-armed into the program.

With DRPA funds come exhaustive reporting requirements. The court ADR office employs more than 20 employees who, for example, maintain the mediator database, send notice to mediators when they have been selected for a case, monitor and ensure that the mediation has been timely set, and analyze and maintain records of cases settled for reporting purposes.

If they weren’t required as a condition of receiving DRPA funds, which of the plethora of documents would the court have to generate, tabulate, report and maintain? None. When parties mediate outside the scope of the court, the only thing the judge needs to know is if the case has been settled so that the case can be taken off the docket. That paperwork is generated by counsel in conjunction with a settlement, and there is already a form for that — it’s called a Request for Dismissal (Form CIV 110).

Locating free or low-cost mediation. Concerns about a two-tier ADR system — one for parties that can afford it and none for those who cannot — are misplaced. Many other organizations in Los Angeles County, including California Academy of Mediation Professionals, Center for Civic Mediation, Centinela Youth Services and the Asian-Pacific American Dispute Resolution Center, receive DRPA funds and provide free and/or sliding-scale mediation. They are not impacted by the court’s budget cuts, and indeed stand to increase their share of the DRPA budget once the Los Angeles court eliminates its mediation program. In addition, numerous local law schools, e.g., Pepperdine’s Straus ADR Institute and Loyola Law School’s Center for Conflict Resolution, supervise student mediators, who handle smaller matters at no or low cost. Finally, mediators who want to get started could advertise their low rates along with their credentials.

Finding private mediators. It should come as no surprise to experienced attorneys that there is currently a glut of private mediators — some newly-minted, some fresh off the bench, and some who have been full-time mediators for 20 years — to mediate larger cases. Some charge a few hundred dollars per hour; some charge over a thousand.  Most specialize and are experienced in one or more areas of the law.

Organizations of mediation professionals often have free searchable databases of their members.

  • The invitation-only International Academy of Mediators (“IAM”).  California is home to 45of its Distinguished Fellows. http://www.iamed.org/associations/13463/membersearch/
  • SuperLawyers and Best Lawyers.  Both sites list Southern California ADR professionals who have been nominated and voted on by their peers.
  • The California Academy of Distinguished Neutrals. Well-respected mediators can be searched by county, by specialty and by calendar availability.  Resumes can be reviewed online. http://www.californianeutrals.org/quicksearch.php
  • Southern California Mediation Association (“SCMA”) members are listed by geographic and specialty areas.

The two foremost national providers of ADR services maintain searchable online databases.

  • The non-profit American Arbitration Association’s database of its mediators is found at www.mediation.org; AAA requires that every neutral fulfill annual training requirements and receive positive feedback from parties.  According to Harold Coleman, Senior VP of Mediation, “the American Arbitration Association emphasizes ongoing practice development--we train our neutrals to serve as full-service conflict managers, able to assist counsel in designing the appropriate conflict resolution processes that address the human factors as well as the law and the facts involved in a particular dispute.”    
  • JAMS also provides in-house neutrals’ training, and lists its neutrals by office.  With offices in downtown Los Angeles and Santa Monica, JAMS also offers special masters and discovery referees.

AAA recently unveiled its Judicial Settlement Conference Program that provides retired federal and state trial and appellate court judges for settlement conferences with the added benefits of mediation confidentiality and the ability to select any judge from the extensive panel.

There are three well-established Southern California mediation services with rosters of experienced, effective mediators listed by specialty: ADR Services (with offices throughout California), Judicate West (which also has a number of offices in California) and ARC.   There are many newer and/or smaller providers, such as The Entertainment Mediation Institute, that specialize in only one industry or area of law, Agency for Dispute Resolution,   CEDRS, which are located in one geographical area.   

Los Angeles has a mature mediation marketplace. What happens if attorneys stop utilizing mediation and the court calendar gets clogged with cases that previously would have been ordered into mediation? That’s simply not going to happen. While judges will no longer have the power to order mediation, they have always had — and successfully used — their power to encourage mediation and set completion dates of matters pending before them. The mere prospect of lengthy waits for motion hearings and trials should be motivation enough for Los Angeles attorneys, who have been the beneficiaries of over 20 years of court-administered mediations, to find their way to mediation. 

Should the court determine that additional incentives are needed, judges might offer calendar preference for dispositive or other motions filed by counsel who provide a written stipulation that they have previously participated in good faith in at least one 3-hour mediation session. As a stick, the court, in concert with bar associations, corporate counsel associations and others, could encourage the Legislature to impose an ethical duty on attorneys to discuss ADR with their clients early and often.

Wendy Kramer, President of SCMA, likes the idea of courts offering incentives to mediate early.  “Our concern rests with the loss of the court’s mediation convening process.  Previously, with a court order and a deadline to face, litigators, who as we know must deal with the-day-to-day crush of business, were required to find their way to mediation sooner rather than later. If the court no longer enforces timelines for ADR, litigators may postpone scheduling a mediation.  Having incentives to complete timely mediation is an excellent way to circumvent this problem.”

The bottom line is that the court’s decision to eliminate its ADR program will not be the death knell for early mediation of appropriate civil cases, even for indigent parties, nor will it result in clogged civil calendars. Twenty-five years after the passage of DRPA, the legal community well knows the advantages of a well-timed mediation, and knows how to locate competent mediators at all price points.

It behooves attorneys to familiarize themselves with the vast array of resources for identifying appropriate mediators for a variety of cases, so that they, and their clients, are not caught short in July. By taking proactive steps to reduce the burden on the courts, counsel help their clients, and ultimately their law practices— solid preparation and good faith participation in mediation helps clients achieve their goal of prompt resolution of their litigation; and a grateful client is both a repeat client and a referral source.

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Biography




Deborah Rothman has been a full-time mediator and arbitrator since 1992. She specializes in the resolution of complex business, commercial, employment, intellectual property, entertainment, partnership and real estate matters. She has mediated and arbitrated several thousand individual, multi-party and class cases, both domestically and internationally.

A magna cum laude graduate of Yale College, Deborah got her JD at NYU Law School and her Masters in Public Affairs at Princeton's Woodrow Wilson School.  She is a member of the mediation and arbitration panels of the American Arbitration Association, ICDR, CPR, ADR Services, Judicate West, ARC and numerous other prestigious panels of neutrals.

Ms. Rothman has been named a Southern California Super Lawyer and a Best Lawyer in America every year since 2006. She sits on the Board of the College of Commercial Arbitrators, and is a former chair of both the Labor and Employment Law section and the ADR section of the Beverly Hills Bar Association. 



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Website: www.deborahrothman.com

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