The year’s must-read California Litigation Journal article is Justice Ignazio Ruvolo’s “It’s Time to Re-examine the State of Civil Litigation in California.” You have to be a member to read the issue on-line (here Crisis in the Courts?) but if you’re not, find a friend who is and steal her copy.
Justice Ruvolo begins his concise history of the state of California’s courts by suggesting that “if your bar number has fewer than six digits, then you doubtlessly witnessed firsthand the crisis that was the progenitor of the current state of civil litigation in California.”
He not only proceeds to swiftly chronicle the way we got to mega-firms, six-figure first year associate salaries, and partner-free-agency, but also to question whether the Courts are doing the public a disservice by continuing to provide ADR services. A few thought-provoking excerpts below:
If the courts intend to stay in the ADR business for all time, some complain that they are not now competing with private ADR very successfully. One reason for this non-competitiveness is inadequate funding . . . . [C]ourts cannot afford to provide uniform training for mediators or to pay for mediation services and must rely on voluntary panels which compete with fee-generating private ADR for the time of neutrals. Some believe that the courts must necessarily impose a level of procedural uniformity for court-sponsored ADR that is inimical to the creativity and flexibility that is at the heart of successful mediation.
Of perhaps greater concern is the growing view that ADR-related activities by the trial courts are diverting money and resources away from the judiciary’s core role: that of providing adjudicative processes to litigants . . .
Since ADR has truly become part of the legal system’s culture, perhaps then the courts could safely leave ADR largely to the private sector. If the judiciary limits its role in ADR it will have the associated benefit of freeing judicial resources needed to shore up the court’s adjudicative services. Case management, as it relates to ADR, might focus on locating those cases in the civil justice system that are suited for non-traditional resolution but which lack the financial resources to employ ADR. These are the cases that should be the beneficiaries of court-sponsored ADR.
Unpacking the Mainstream Mediation Model Objectivity, impartiality and the role of “neutral” third-party are deeply valued foundational components of Western mainstream mediation. As such, mainstream conflict resolution practices and methodologies...By Elli Nagai-Rothe