Pay Mediators From the Get-go

Mediators provide three free hours for each case referred by Superior Court presiding judges. Half that time is allocated for preparation, half for mediation. After the initial three hours, mediators are allowed to charge their hourly market rates.

But, according to a court study, the average number of billable hours per case is only 1.43 hours. Thus, on average, mediators are being compensated for just 32 percent of their time.

Indeed, the Supreme Court Committee on Complimentary Dispute Resolution acknowledges that "the three free hours has caused considerable numbers of mediators to resign from the program, and has unreasonably taxed those who remain on the program rosters."

However, the committee's recent recommendation that the mandated free time be decreased from three hours to two will not resolve the problem.

The committee proposal retains the required one-and-a-half hour in-person session requirement, leaving only 30 minutes for mandated preparation tasks. These include studying the parties' submissions, making status reports to the court, and scheduling and conducting the telephonic conference to explain the mediation process, set ground rules, schedule mediation sessions and undertake other tasks.

Moreover, the committee's proposal continues to belittle the professional status of mediators, the majority of whom are attorneys. That is why the New Jersey Association of Professional Mediators has an alternative proposal for compensation.

We recommend elimination of mandated free or reduced fees, allowing mediators to charge their individual billing rates from the start of the mediation referral. Compared with the other costs of litigation, mediator fees range from insubstantial to nominal. Mediation is not a barrier to access to the courts. On the contrary, it offers the only affordable option in the judicial system for many parties.

Judicial and other court personnel receive reasonable compensation by New Jersey taxpayers for administering and overseeing the CDR mediation program. Attorneys are paid reasonably by their clients for their participation in the mediation process. It is incongruous that the professionals who actually deliver this valuable service are the only participants required to do so without reasonable compensation.

If the Supreme Court elects to continue to require mediators to provide services at below-market rates, we recommend adoption of a three-county pilot program of voluntary mediation, with opt-out provisions in place of the current mandatory system. An opt-out arrangement would require the signature of the attorney and the client after having reviewed materials describing mediation and its advantages. The CDR report rejects consideration of any such program on the ground that it would destroy the system. That assertion is not supported by empirical evidence.

Clearly, a mandatory program will result in more referred cases than will a voluntary program. The true measure is not the number of cases referred, but the number settled. In the mandatory program, litigants and their attorneys decide in advance that they will not participate in the in-person session beyond the required time, and in fact, bolt out the door immediately at the end of that time period.

This engenders disrespect for the legal system because, from the clients' perspective, they have been required to waste their time and pay their attorneys to sit around for the sole purpose of getting their mediation ticket punched before they can get back on the litigation calendar. Under a voluntary system, those cases would never go to mediation.

A voluntary program renders moot all the knotty and contentious issues raised by the mandatory program. Access to the courts is made moot as well because any party can reject a referral.

And, there could be no reasoned objection to mediators being compensated at market rates from the first hour. The advantages of a voluntary program are many and obvious.

The disadvantages and risks of a pilot program are modest and remediable. If the number of cases mediated diminishes significantly, the three counties can return to the mandatory system.

Three free hours is unacceptable, but two free hours is not the solution. The time for free mediation has come and gone. Let's start paying mediators fair compensation for the valuable and cost-effective service they provide the court and the public.

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James W. Preston,   Washington DC	prestonjw1@aol.com      08/02/06
Being a non-attorney but very active certified mediator, I view this issue from the perspective of the court, as well as, the professional mediator who would like to be fairly compensated for their time. Typically, most municipal court systems don't have large funding streams to adequately fund court programs like mediation services. Some court mediators are volunteers, some receive stipends, and some are full time paid cadre. For so long many mediators have used the court system to gain practice experience until they can move out on their own and develop a practice that will pay them a living wage. The Court knows that their are many people who will volunteer their services for the experience and the love of the profession. What's the solution? Lobby the Courts, the ABA, and the legislative bodies across the country to make this matter a priority when funding their courts and their programs. To name a few, positive outcomes from mediation have helped save on court costs, backlogs, and a badly needed service to the general public. ALL mediators, regardless of stripe, should be fairly compensated for their time and expertise, but within acceptable and reasonable limits. James W. Preston, Sr. Director of Litigation & Mediation Services Justice & Mediation Service Center Washington, D.C. Add New Comment

Charles  Parselle,   Los Angeless CA	charles@parselle.com      07/20/06
BRAVO, BRAVISSIMO
Congratulations on a brilliant article. We have the same problem in Los Angeles. Mediators just go on year after year actually paying for other people's mediations, which goes by the name pro bono as if we were truly helping the needy and indigent, whereas in fact everyone else in the room is making out very nicely. Los Angeles mediators 'donate' at least $30 million a year in unpaid fees. This situation passed its 'sell by' date at least ten years ago, and the corpse is stinking. If mediation is to gain professional respectability, mediators need to stop working for free for people who are merely exploiting them. If the lawyers are working pro bono, then but only then, should the mediator work for free. Add New Comment

Kristina ,   Verona NJ	kristina@kristinahaymes.com      07/14/06
Well done Anju
Amen! The world needs a supply of experienced and trained mediators. The value of the work that we do has been well-documented. Most people cannot afford to do this work entirely pro bono. Keep up the good work on educating the public. I also think we should continue to think about Bernie Mayer's work in Beyond Neutrality and how we as conflict managers can respond to what the public wants and needs. I founded the Mediation Marketing Institute to help mediators and conflict managers make a substantial living doing the work we do because the world needs us! my blog: http://mediationmarketingtips.wordpress.com Free newsletter at www.mediationmarketingtips.com Resource to attract clients at www.MediationMarketingSecrets.com NEVER GIVE UP! Kristina Haymes, MA, JD Add New Comment

Dina ,   Boston MA	07/13/06
Making a Good Living Mediating
Anju, I couldn't agree more. I think mediators deserve to earn a good living because we are a valuable professionals. Recently, I wrote a call-to-action for mediators to stop volunteering. You can read more about it at my blog, Mediation Mensch (http://mediationmensch.blogspot.com) Determined to help others do well financially while doing good, I've launched a mediator business coaching site, http://www.adrpracticebuilder.com. Thanks for calling our collective attention to this important matter. Dina Beach Lynch, JD Ombuds Mediator's Business Mensch http://www.adrpracticebuilder.com Add New Comment

Lester ,   Baltimore MD	07/13/06
I AGREE !!!
I am a Mediator in the State of Maryland, and I agree with you totally. There are too many programs around that want mediators to volunteer to do this work for free, and not enough people who feel that the valuable services provided by mediators is worth paying the mediators market value for their time. As an attorney who has experience in litigating cases, my opinion is that the services provided by mediators is worth as much as the value of services provided by attorneys and litigators, given the true impact that mediators have on resolving conflict. God bless you in your future endeavors at resolving conflict. Add New Comment

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