Los Angeles Superior Court Shutters ADR Program

Your services are overpriced, at free.  To that, my fellow alternative dispute resolution professionals, I respond with an emphatic, Um, ouch.  After more than 20 years, the largest program of its kind in the United States is calling it quits.  We’re discussing the ending of possibly the largest single ADR practical training ground in the world.  “They’ll try to wrap up everything in the pipeline by May 10, [2013].” Mary Hearn, spokeswoman for the Los Angeles Superior Court said.  The consequences to the citizens of Los Angeles will be staggering, and the world will be watching to see how the Los Angeles ADR community responds to this crisis.  What does this portend for our system of justice?  What are the implications for the future of mediation?  What would happen, if we framed this as a dispute resolution opportunity?

Los Angeles has been the trend-setter and leader in alternative dispute resolution for decades.  While this may seem like a Los Angeles-only event, the repercussions will be examined globally.  “Justice is going to be delayed dramatically. Insurance companies have no incentives to settle early. It creates a lot of hardships on people.”   There have already been reports of protests by angry citizens. The People are not gathering in favor of the alternative dispute resolution program, because ADR is the best kept secret that everyone has ever heard of.  They’re gathering against what they know and understand, court closures.

We should all be familiar with the legal maxim, Justice delayed is justice denied.  Tony Molino, past President of the South Bay Bar Association stated that “The one thing that helped alleviate some of the caseload is now being removed…It’s going to be five years to get a court date.”   “Every local small business and resident should be concerned and every State Legislator poised…because chaos follows the deterioration of a functioning justice system.”

We may also see subtle changes in the way justice is distributed.  For example, given that it will take longer to achieve a litigated settlement, an evaluative attempt for pretrial settlement will tend to shift the equation in favor of the defense.  The argument being, Well, Complainant, you might get $X if you go to court, but who’s got years to wait around, while the Defense sits on your money?  Take $Y, today.

Could this be a Make lemonade moment for mediators?  Will this megalithic event  impact mediators homogeneously, or will there be a stratification of consequences?  There’s going to be a flood of new business, from people seeking to resolve disputes, as courts are shuttered, backlogs grow, and litigation is delayed.  Whom will they turn to?  Given proper knowledge of their choices, The People will turn to what will work, because The People are big believers in what works.  In most instances, that will mean private practice mediation.

Let’s play pretend; let’s pretend that there are only evaluative mediators and facilitative mediators.  These two groups are likely to be affected by and respond to the changes somewhat differently, based on their positioning and historic propensities.

“Because of the connection between evaluative mediation and the courts, and because of their comfort level with settlement conferences, most evaluative mediators are attorneys.”   Most attorneys can be expected to bunch-up, on Team Evaluation, as they did when “They banded together to form the Center for Public Resources (now CPR), which actively promoted corporate and law firm pledges to seek out-of-court solutions before resorting to litigation.”   Evaluative mediators will get their share of the new business, based on their proximity to the court and their penchant for networking.

When it comes to the future of facilitative mediation, things look interesting.  Facilitative mediators, are more likely than evaluative mediators to have been operating independent of the courts.  Experienced entrepreneurs with too few paying clients will have their single biggest issue resolved for them, if they can improve public awareness of the nature and capabilities of facilitative mediation.

However, even as demand increases, the lack of barriers to entry to the field may become an increasing concern.  The role that the courts have played in turning-out great mediators is being eliminated.  Discussions about certification requirements, to protect the public and the integrity of the field, are sure to be rekindled.

If we were looking at this as a dispute resolution opportunity, we might begin by developing a communication strategy.  What do those people in the grocery line need to hear, in order to understand their current options?  And what do we need to believe, in order to say it?  It’s time for Alternative Dispute Resolution professionals to add checkout line speeches to our repertoires.  And exercise them.

The signs are everywhere, ironically, that mediators either don’t like marketing, or are not good at it.  I sometimes wish Google would stop asking me if I meant meditation.  Mediation marketing is about giving people the opportunity to understand that, in most instances, we’ve got the best dispute resolution process going.  Let us be clear and specific, and speak from a position of courage and conviction.  The People will know what to do, once they understand their options.

This is a big change, and where I come from change means opportunity.  We do not have to do this alone, but we do need to do a better job of communicating what makes mediation different and better.  Our BATNA, in this situation, might appear as the ADR community activating in a timely and sustained manner to educate The People.  To the extent that resources could be consolidated, they should be applied to a public awareness campaign.

Life is more like a video than a snapshot.  The universe hates a vacuum and will move to fill it.  Looking back, will the ADR community have stepped up to the plate and taken a big-time leadership role, when need intersected opportunity?  The People, knowledgeable of their choices or not, will be big losers, if we don’t step up, or if we make a feeble showing of ourselves.  Let all ADR professionals be reminded of the power of clear communication, as we go forth, and shape the future today.

                       

Randy Drew

Specializing in the impossible (well, if I get to write it), L. Randy Drew is Co-Executive Program Director of Southern California Family Mediation, humbly serving the California, Los Angeles Superior Dependency Court, and in partnership with the University of Southern California Gould School of Law’s Judith O. Hollinger Dispute Resolution… MORE >