Those of us who teach mediation are compelled (see Footnote 1) to espouse the concept that one of the beauties of mediation is that it is voluntary. The issue has become so muddled that even when the Courts in California (at least those of which I have read and with which I have participated) try to urge good faith participation (see Footnote 2) the participants frequently show up with no intention of participating. In fact, the reported cases from around the country can’t even agree upon what it means to mediate in “good faith.” Recently, I slogged through a mediation in which counsel from a very high profile plaintiffs’ firm refused to make a demand because it was up to me, as the mediator, “to make it interesting” enough that he would want to participate. The majority, at least 75%, of the time was consumed simply trying to find a number with which to start. It was kind of like picking up egg-whites from a flat surface with one’s fingers.
The fall back then is that there really are two basic standards. The first, which is growing in familiarity, is court-program mediation in which the courts refer litigants to mediation to satisfy the ADR requirement. Those services are (or were) provided to the litigants at little or no cost. Of the many problems with court programs is that while a court can order parties to go to mediation, they cannot be ordered to mediate. For procedural reasons, some litigants and lawyers will show up simply to satisfy the ADR requirement thus wasting everyone’s time, money and the court’s limited resources. In close consort with that problem is that the courts can order parties to mediation, but the courts are generally not, at least not yet, allowed to order litigants to do anything they might have to pay for. (see Footnote 3) Consequently, since the parties and counsel have no hard cash invested in the process (someone else is paying) and since those who do not take court referred mediation seriously obviously have little or no respect for the mediator’s time, (see Footnote 4) they seem to feel as if they have nothing to lose if they blow off the mediation.
Another issue is that because of the budget constraints within the court system(s), the time afforded for these mediations is very limited. At least one (Riverside) program allows the parties three hours of mediation time, one of which the mediator may consume for preparation and set up. While some cases can settle within such a tight time frame, most cannot. One of the biggest frustrations that I have suffered as a mediator in these programs is the nervousness that counsel and parties display as the allotted time nears its end. Though I typically have not automatically “pull the plug” at the end of that time, the economic burden is felt and some of my colleagues simply end the mediation when the time is up. In either case, the process suffers. We all have different levels of commitment to the process, so we must find alternatives. In the Riverside (and, I suspect, most programs if we really looked) the parties can stipulate to the ongoing services of the mediator at the mediator’s regular rate, or any rate upon which an agreement can be made. Of course, if it is a case with a recovery value or risk that is too low, it is hard to justify substantial fees, but if that is the case, why not contact your court mediator and ask for a reduced fee for your case if it exceeds the three hours? The worst that can happen is that the mediator declines but I suspect that in most cases your court mediator will agree to reduce the fee in special circumstances.
On the other hand, all too often we encounter cases in these programs (which are generally intended to be for limited cases) with demands and/or offers that far exceed the program limitations. We all want a bargain, that is certain, but it seems to many mediators who participate in such programs, providing valuable services at no cost to parties in cases exceeding $50,000 in value or risk, may be taking advantage of the mediator and the system in general. It confounds me that attorneys will frequently stipulate to the expense of a Referee or Special Master (in which capacity I act), yet seem more reluctant to find a complete resolution by stipulating to private mediation. That situation, with the economic disaster in the Courts today, must change.
The other significant arena is mediation required by contract such as in the C.A.R. (real estate) contracts that include Arbitration/Mediation provisions. In order for the parties to be able to recover attorneys’ fees arising from such a dispute, they must, before initiating a lawsuit, submit to and pay for mediation. The language of such contracts (Cullen, id. at C.R. 421) states, the “standard form purchase agreement provides for the prevailing party in any dispute to recover legal fees. However, this right is subject to a condition precedent that reads, ‘If, for any dispute … to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after [the making of] a request …, then that party shall not be entitled to recover attorney[ ] fees….’” (italics in the reporter—brackets in original) The C.A.R. contract has evolved over the past 20 or so years to make the language more strident, which, in this author’s view is best for the parties. Most of the C.A.R. cases I mediate, settle for a variety of reasons, but mostly it is because the parties generally really do not want to suffer the time and expense of litigation.
Last June, Cullen vs Corwin, (2012) 206 Cal.App.4th 1074, 142 Cal.Rptr.3d 419, was published (in relevant portion) on the contractual mediation issue. In that case, the trial court erred in ignoring the contractual mandate that the parties submit to mediation. The Cullens made at least two requests to mediate without success. Counsel for Corwin, who won at trial and was awarded attorneys’ fees, refused the demands to mediate arguing that the Corwins had to conduct discovery or else the mediation would be a waste of time. In reversing the trial court, the 3rd DCA firmly rejected the argument indicating that Mediation was designed and intended to help parties avoid the cost of litigation and that such was the intent of the C.A.R. contract. Thus, in some situations (at least to appreciate the benefit of certain contracts) mediation is mandatory.
There was no mention in Cullen of whether the parties had to actually mediate as opposed to being required to submit to a mediation demand, but it seems to me from the language that was interpreted, that one must participate in the mediation. I think it will happen, anyway. It is my experience that once parties go to the expense of engaging the services of a qualified mediator, they want to get value for their money and thus tend to be a little more proactive. (see Footnote 5) Of course, that at argument flows right into the weakness of court mediation programs in which the parties have no vested interested. Referring to the generalities footnote, most of the court mediations I have conducted have been productive and the parties were very serious, indeed, which led either to settlement or substantial progress in, at the very least, narrowing issues.
In this millennium of cost cutting and financial disarray in the court system, it is even more important than ever for attorneys to rescue their clients from the mess. Recently, I spoke at Cal State San Bernardino to a group of entrepreneurs on conflict management in business. In my preparation and research—along with many years of experience—I came to the conclusion that avoiding conflict begins at the very beginning stage of every business relationship by anticipating every “what if” possible when drafting agreements and contracts. Thus, I propose that every agreement, including Marital Settlement Agreements/Stipulated Judgments, should include contractual mediation provisions. (see Footnote 6) That said, such provisions should not be hollow, they should include time limits for demands and responses; the time in which the mediation should be scheduled and conducted. If they do not have such limitations, matters may languish for a long time with no action. (see Footnote 7)
Neither the Courts nor the Litigators nor Mediators should rely so heavily upon court programs. In spite of their successes, those programs that still survive leave the entire matter up to the parties’ whim as to whether or not to participate and mediate. Litigators (see Footnote 8) who strive toward resolution in the best interest of their clients should, and to an increasing extent are, guiding litigants to ADR. Perhaps the day in which lawyers believed (or thought they believed) that the best thing for a client was a jury’s decision, is passing and our profession can learn to help their clients to make their own decisions through mediation.
My plea in this basic missive, has been to implore counsel who have agreed to participate in court administered mediation to do so in good faith which means that at the time the case is to be referred to ADR (at the CMC), the parties and/or attorneys should be “on the level” with the Court in their case evaluations. It really means something when we communicate an evaluation to a Court; deflating an estimate solely to make one’s way into a court program harms the court and other litigants. Additionally, before the mediation a demand and offer should be exchanged, the mediator should be at least minimally briefed, and the parties and their attorneys should show up ready to mediate.
As legal professionals, we owe a duty to our clients, the courts and ourselves to move cases to resolution with as little pain and expense as possible. I suggest that we need to view mediation as voluntary in concept but as mandatory for the benefit of our clients. I also urge counsel to stipulate to, and participate in, private mediation at the earliest practicable time in a case. In this critical epoch in the history of our courts counsel should be acutely aware that they have the opportunity to keep a dispute from rising to the level of a conflict for the benefit of their clients. I also suggest that in today’s court environment, informing the court of your willingness to seek early private mediation will result in a very appreciative and cooperative judge— not to mention the potential for a client who is more appreciative of the attorney’s thoughtful counsel.
Footnotes:
1) It would seem logical that litigants and attorneys who agree to participate in Court run mediation programs would be implicitly agreeing to participate in “good faith.” Yes, so it would seem……
2) Seems a bit inconsistent with the current court system in which litigants seem to be forced to pay for more and more of the process directly as sort of a “use tax.” Perhaps the fear is that court orders will enrich mediation services. That is grist for another article, I suppose.
3) I submit that the individuals who are really paying for court mediation programs are the mediators, themselves, who provide their services for free or at a significantly reduced rate for the benefit of the public.
5) It baffles me that some of my attorney colleagues strongly oppose such provisions. Doing so may be a vivid example of cognitive dissonance.
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