What is to be done? Nearly everyone agrees on the desired outcome, but there are considerable differences about method, and in particular, whether ‘concerted action’ is distasteful and to be avoided. Some have expressed discomfort at the very idea of concerted action. Yet, ‘organization is the corporate aspect of social life, the capacity for collective action. This is found in any group.’ (Black, 1976: 85) Indeed, there are only two possible ways to be take any action at all – either individually, or in collaboration, cooperation, concert, or collectively with others, which are synonyms but have widely different connotations. Thus, we are suspicious of ‘concerted’ and scared of ‘collective,’ but we love ‘collaborative’ and adore ‘cooperation.’
Mediators like to call themselves ‘peacemakers,’ and without actually labeling litigators as ‘warmongers,’ the implication is there and sometimes made explicit with phrases like ‘I believe mediation is the way of the future of all litigation,’ which may or may not be true but we are here right now sharing the space in LA County with 50,000 attorneys for whom litigation is how most earn their living.
Virtually all systems are collective, within which the individual has scope for individual action. Therefore, to change a system that is not serving the needs of individuals requires collective action. The working lives of lawyers occur within the framework of the collective, because lawyers as a group benefit from their monopoly on the practice of law. Adversarial proceedings take place within a collaborative structured framework, and it is not the adversarial part but the breakdown of the collaborative part that has led to the perceived loss of 'civility' about which attorneys frequently complain.
Bar Associations exist to forward the interests of members. Courts function within a tight organizational structure, as do corporations and government departments. Indeed, all organizations exist to forward the collective goals of their memberships. Measures of organization include ‘the presence and number of administrative officers, the centralization and continuity of decision making, and the quantity of collective action itself.’ (Black, ibid.) By all these measures, mediators are barely organized at all, yet must function within fully organized structures including the legal system. This disparity alone is sufficient to explain why most mediators have difficulty getting paid for their work and have to be content, for the most part, with crumbs or largesse.
Inaction has consequences just as far-reaching as the decision to take some action. Mediators have stood by dreaming of peace for fifteen years while forfeiting untold dollars in unearned fees, yet without earning much respect from those whom they have served. Does anyone mind? If so, will individual inaction cure it, or even individual action? What we have right now is a few individuals asking for action and a great many individuals who choose inaction while just scraping by, and others taking individual action by just opting out.
That is why the profession is dominated by people who have actually retired and for whom this is an income supplement, such as retired judges and retired lawyers. This is a fine occupation for anyone who has a pension or who has a significant other paying the bills, but what about the newcomer who just spent large sums on a Masters in Dispute Resolution and needs a paying job? In LA County, these newcomers enter a strange and far from normal world in which a huge pool of more than two thousand peace-loving mediators nonetheless compete fiercely against each other for mediations, but incredibly they have to pay to compete and not for payment but just for the chance of payment in overrun time. The cost opportunity calculation is ridiculous. Cooperative, collaborative, concerted or collective activity is not immoral, distasteful or fattening. It is how this country got founded, as Benjamin Franklin said: ‘We must hang together or we will hang separately.’
Some seem to feel that there is opposition to such normality from attorneys, or that the Legislature has mandated this system, or that the Court is ‘upset.’ These perceptions are far from reality.
What attorneys need from mediation are results. They will often accept free service if offered because they owe a duty to clients, but pay for larger cases knowing that a good result justifies the cost. However, for many cases they cannot justify the fees charged by some of the private providers. Yet the perpetuation of the pro bono panel has inhibited the development of a middle market of reasonably-priced mediators, because of its inhibiting effect on normal competition, which offers increased choice while moderating costs.
If you asked any legislator about mandatory ‘pro bono’ mediation, she would look at you sideways, because it doesn’t exist in any legislation. The Legislature has never said that mediators must give away their time, but by the same token it will never say that mediators may not give away their time. The Legislature provides grant money for mediation, and the court is by far the largest recipient, but the relevant law specifically anticipates that mediations will be fee-based, ‘except for indigents.’ [California Business & Professions Code, section 467.3]
The court has been a friend to mediation, but the system was developed in the early nineties when the situation was quite different. Today the court needs active help from the mediation community in achieving normality, and from bar associations which realize that results matter and that getting mediators to pay for parties’ mediations is not the best way to continue. The judges responsible for the system are genuinely concerned, because of all people they are dedicated to ensuring everyone in the system is treated fairly.
There is no reason to provide free mediation in any case where non-indigent parties voluntarily choose mediation. The justification for this is obvious. If a person chooses a service, there is no logical, legal or moral reason why it should not be compensated. Yet it is increasingly recognized that mediation is a specialty in its own right, and newer mediators need to apprentice their skills. To help indigent litigants and the court, the SCMA and other mediation associations should encourage the court to maintain the pro bono panel for cases that the court orders into mediation without the parties’ stipulation. This will help the court, because the court is reluctant to order mediation and simultaneously order parties to pay. This reluctance is justified [Jeld-Wen v Superior Court, 4th District Court of Appeal, filed January 4, 2007].
What cases may be ‘ordered’ into mediation in the absence of stipulation? It depends on the amount in controversy. California Code of Civil Procedure section 1775 provides the answer: ‘The court shall not order a case into mediation’ where the amount in controversy exceeds $50,000, but cases under $50,000 may be ordered into mediation without the parties’ stipulation. The solution is for mediators to serve pro bono for cases ‘ordered’ into mediation without stipulation, but to set their own rates for all other cases in which mediation is voluntarily chosen by parties.
This is a win-win resolution for all concerned. The court’s need to be able to order some cases into mediation will be met by pro bono mediators. And where parties voluntarily stipulate to mediation, they will find a wide range of mediators with different fees, and so will be able to make informed choices based on cost, need and quality. There are no losers in this scenario.