Victoria , Los Angeles CA email@example.com 08/30/06
Mom and Apple Pie
One would think I was suggesting that mediators NOT be paid, which would, of course, be somewhat like arguing against mom and apple pie (my husband actually the better apple pie maker! sorry mom)
Here's the simple question: is it easier to control our own behavior (and our own destiny) by voluntarily limiting our use of the pro bono panel for marketing purposes than it would be to control the behavior of an entrenched bureaucracy with 400 + independent judicial officers (someone else's destiny).
My suggestion is that we professional full-time mediators take our own fate into our own hands by: (1) withdrawing from the pro bono panel once we qualify for the party pay panel; and, (2) encouraging others to do the same so that the pro bono panel serves the legitimate purpose of: (a) training new mediators; (b) introducing new mediators to their market; and, (c) providing a volunteer opportunity for lawyers who want to get a taste of mediation (novices and/or amateurs).
If we believe our own press, anyone who wants to settle a case will, at a minimum, use the party pay panel because: (a) professionals do a better job than amateurs (take your next multi-million dollar dispute to an amateur litigator & see what you get); and, (b) when the professional mediators leave the pro bono panel, its users will immediately feel the difference in quality unless they're lucky enough to get an unusually talented non-professional mediator.
Let me be perfectly clear -- the moment the Superior Court becomes convinced it should prohibit parties whose cases have an amount in controversy exceeding $50,000 from using the pro bono panel, I'll celebrate with everyone else.
The reason I'm not helping to lead the charge AGAINST the Superior Court is: (a) I left litigation because I was tired of fighting for "positions"; (b) I genuinely believe that if we address the parties' interests we have a much better chance of succeeding than if we play power politics -- NOT mediators' strength; (c) I don't believe the effort to effect this voluntary change on the part of the Superior Court is worth the time it would take to make the (presumably desired) changes; (d) the entire organized bar in Southern California (MY entire market) has rallied behind the Superior Court's decision not to use a "means test" or any other test to restrict the availability of volunteer mediators; and, (e) many attorneys in the community believe that the effort to restrict pro bono services to cases with amounts in controversy below $50,000 is being led by mediators who have built their careers by mediating on the pro bono panel & who now want to raise the draw bridge behind them.
To my mind, all of these issues would need to be separately addressed before a political solution to the problem might be better than a self-imposed restraint by mediators who are continuing to use the panel as a marketing vehicle.
By the way, as soon as an attorney member of the Superior Court ADR committee pointed out to me that what I was doing on the pro bono panel was marketing and training rather than providing pro bono services (2 years ago) I immediately contacted the LACBA DRS and volunteered my services for community mediation. I find true pro bono community mediation tremendously satisfying and a GREAT training ground. I highly recommend it as a partial replacement for the pro bono panel (of which I am not a member except early in the year to get my 4 required cases to serve on the party pay panel).
True pro bono work also reminds me to be grateful for what I've already got rather than complaining about what I can't yet have. And what do I already have? A tremendous education & opportunity to make a living at something I love while at the same time serving a community with far fewer resources than have been made available to me.
Charles Parselle, Woodland Hills CA firstname.lastname@example.org 08/29/06
Constance states 'the pro bono panel is a great place to train.' Yes, but delete the 'pro bono' and insert 'paid,' and it is still a great place to train. As for the paid panel, it has 400+ mediators and gets maybe 1600 cases a year - average 4 per mediator per year - slim pickings for all that effort on the pro bono panel.
Constance Komoroski, Pasadena CA email@example.com 08/29/06
Many are called.....
The pro bono panel is a great place to train and, unless you are a former judge, one of the only places to train; assuming one is, as I am, one of the few who are frequently chosen. At least that is how I understand the pro bono panel to be working, as I listen to some of the other 2,000 warm bodies on the pro bono panel complain that they are never selected. I'm now prepared to go party pay and drop pro bono. Perhaps, in addition to your proposal that party pay qualification be exclusive, the pro bono panel should institute a time limit of 1 or 2 years for a mediator to achieve eligibility for the party pay panel. Failing that, mediators would go off the pro bono panel - maybe with a minimum 1 or 2 year time before they may reapply to work for free.
Robert Grey, Melville NY 08/24/06
As an attorney, mediator and arbitrator it is my humble opinion that serving as a mediator is the most demanding of the three yet often pays the least, or not at all.
Providing some pro bono services, whether you are an attorney, mediator or arbitrator is a good thing. But most attorneys and arbitrators expect to be paid a reasonable fee for most of their work; there is no reason why the public, bench or bar should expect otherwise from mediators.
Praising mediation's excellent results and expanding mediation programs while expecting mediators to serve without reasonable compensation indicates a lack of respect for mediation and those who practice it.
Charles Parselle, woodland hills ca firstname.lastname@example.org 08/24/06
Allan Revich is right. Mediators are complicit in their own abuse, and the result is that in LA county alone, mediators forfeit around $30 million every year in fees.
Allan Revich, Toronto ON 08/24/06
Whose problem is it?
A great article. One question not asked though: As long as mediators are prepared to work for free, why should anyone be prepared to pay them? We mediators are complicit in the pro-bono abuse as long as we agree to keep working for no payment. The lawyers would also be unpaid if enough of them agreed to represent well-heeled clients pro-bono. As long as mediators remain part of the problem, it is unlikely that they will reap the benefits of a solution.
Charles , Woodland Hills CA 08/20/06
Victoria has written a fine article. She is right that the pro bono panel conveys some benefit to the mediator, but paying the mediator removes no such benefit and adds three significant others (1) it pays the bills (2) it adds respect for the process, which in itself assists the parties to settle (3) it is an important step leading to recognition of mediation as a discrete profession.