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A Brief History of the Los Angeles Superior Court’s Mediation Program

by Materials Provided by Southern California Mediation Association (SCMA)
July 2005

The purpose of this summary is so that SCMA can have a more fully informed discussion on July 30 as we come together for the Board to hear from its members their feelings about the Los Angeles Superior Court’s Court-Annexed Mediation Program. Please do your part in preparing for this discussion by understanding the program’s genesis, its history, the documents that authorized its initiation, and the recent correspondence and articles voicing differing opinions about the current state of the program.

In 1993, CDRC and the ADR community worked together with the Los Angeles Superior Court (LASC), and the Bar to get the legislature to pass Senate Bill 401 (SB 401). This bill mandated that the LASC set up a pilot mediation program (four years 1995-98) to study the effectiveness of mediation as a tool in resolving general civil cases[1]. After much work (and negotiation), SB 401 was passed, with the proviso that the cost savings to the court as a result of this mediation program be quantified and used as a measure of the program’s success.

SB 401 authorized a new chapter into the CCP, Section 1775. This Section provided the authority for this program in Los Angeles and any other counties that chose to opt in, noting that all opt in counties were required to do the same tracking and quantification of savings to the court.

SB 401 and CCP 1775 both contemplate that the mediators in these cases be paid the same compensation paid to the court’s Judicial Arbitrators (a stipend of $150 per case), unfortunately at the time this program was enacted, the State and the County went through a budget crisis and have since not been able to pay the Judicial Arbitrators anything (i.e. they are asked to work pro bono publico, or “for the good of the public”). Therefore, the mediators on the mediation panel have also been asked to volunteer their time.

The Los Angeles Superior Court’s bench-bar ADR Committee, then chaired by Hon. Richard Neal[2], awarded the sought-after ADR Administrator position to Julie Bronson (then JSOP Coordinator for DRS). This committee passed Local Rule 12, setting forth the guidelines under which they would administer the new program. This committee has been subsequently chaired by Hon. Haley Fromholz and Hon. Helen Bendix, and is comprised of members who are bench officers and representatives of each of the local bar associations. SCMA has recently had either one or two seats on the committee.

In 1998, the program was extended for two additional years, and in 2000, at the eleventh hour of the legislative session, Senator Lockyer gutted his enormous and hotly contested Senate Bill 14, and replaced it with one sentence: “This bill removes the sunset provision of the mediation program in Los Angeles Superior Court”, leaving us with the program, as it was originally formulated, in perpetuity.

In 2001, LASC was awarded state funds for the Early Mediation Pilot Program, where they paid mediators ($150 per hour for up to three hours) in order to study the effectiveness of mandating parties to early mediation, and of paying the mediators with court funds, and whether that affected settlement rates and the quality of mediation delivered.

In 2002, the Judicial Council circulate for comment and eventually approved a new California Rule of Court (CRC Rule 1620 et. seq.), providing for the first-ever “Standards of Conduct for Mediators in Court Connected Mediation Programs for Civil Cases”.

In recent years, the LASC has been approved to receive funding from the Dispute Resolution Programs Act (DRPA). So called “DRPA funds” were authorized in 1986 by the DRPA Act (in the Business and Professions Code) and administered by the county. The diversion of some of these funds to the court have stirred some controversy, as these funds have traditionally funded not-for-profit community mediation programs, and some interpret the Act as intending these funds for preventative mediation (i.e. at the community level, prior to litigation being filed), rather than for cases that are already in the system.

In 2004, the LASC ADR Committee authorized a proposal crafted by the LASC ADR Committee, but primarily by the SCMA Courts Committee under the leadership of Steve Cerveris and his work with Judge Bendix (then chair of the LASC ADR Committee’s Operations Sub-Committee). This proposal launched the Party Pay Mediation Panel, where parties to court-annexed mediations could select mediators from the Party Pay Mediation Panel, where the mediators would be paid by the parties up to $150 per hour for the first three hours. The mediators on this panel were more highly qualified than the mediators on the regular mediation panel, and had to apply showing among other things that they had completed a minimum of 25 mediations and that they agreed to take continued education each year. While off to a slow start, this panel is increasing in its usage throughout 2005.

The reason for this meeting on July 30th is that the mediation community seems to have a substantial number of mediators who would like to see some changes made to the court’s mediation program (largely the requirement that mediators on the court panel continue to be required to provide their services on a pro bono basis, especially in cases where there is so much at stake that the economics of the case allow the parties to pay large amounts for legal representation and expert witnesses.

In recent months, several articles have been published in the SCMA News and the Daily Journal which have voiced the concerns of this segment of the mediation community. These include articles such as: “When It Comes to Mediators, You Get What You Pay For” , Gresham’s Law: The Mediation Paradox”, “SCMA President’s Column, May 2005”, “Mediator Criticizes Superior Court’s Mediation Program”, SCMA President’s Column, June 2005 ,“Prominent Mediator Quits Panel” (page 1, page 2), "Big Ticket Cases Get Low Cost Solutions", and "A Personal Opinion: A Few People is Not a Stampede".

There have also been letters sent to the court by Susan Keenberg, and by CDRC. The Presiding Judge William MacLaughlin provided the court’s response (response page 1, response page 2) to CDRC’s letter.

While SCMA has not yet adopted an official position on the program, the San Fernando Valley Bar Association’s (SFVBA) ADR Section, under the leadership of Charles Parselle, has done so, and has crafted a proposal of their own, which they have communicated to the LASC, and have asked SCMA to endorse.

After reading all of these documents, you will be up to speed on what has been going on surrounding the LASC Mediation Program, and fully prepared to bring an informed opinion to the discussion on July 30th. We look forward to seeing you there!

Southern California Mediation Association

Compiled by Lee Jay Berman for the Southern California Mediation Association

[1]General civil cases@ do not include probate, guardianship, conservatorship, family law, juvenile court, and small claims proceedings. Prior to this bill, the use of mediation in such cases was sparse. While mediation had begun to flourish in family law and community applications, it had not yet gained wide acceptance in the general civil arena.)

[2] Justice Neal was still with the Superior Court and had not yet been elevated to the Appellate Court. He is now retired and a full-time neutral with JAMS.

Website: www.scmediation.org

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