One might think that with the economy finally starting to improve, the worst days of budget cuts for the justice system are behind us. Sadly, that is not the case. Recently, I heard LA Superior Court Presiding Judge Lee Edmon explain at a County Bar Association lunch why the situation might actually be getting worse. California’s state legislature began drastically slashing the courts’ budget several years ago, but the courts have managed to avoid the worst effects of these cuts by diverting capital funds and reserve funds to current operations. The bad news this year is that those capital and reserve funds are nearly depleted, and the courts are now faced with coping with the full implications of greatly reduced levels of court funding. Unless the bar is able to organize a successful campaign to restore prior levels of funding, we are faced with the prospect that a new round of cuts to court staff and services will cause substantial delays in the resolution of court proceedings, especially civil cases.

I happened to be sitting with a couple of other mediators listening to this talk, and could tell from their reaction and comments that we had mixed feelings. Of course we all want to make sure litigants continue to have access to the courts. We hate to see justice delayed when people have a pressing need for resolution of their disputes. On the other hand, mediators tend to see the courts as a bloated, cumbersome alternative to the more enlightened form of dispute resolution mediators offer. Mediators would like to think they can resolve more cases faster, cheaper and better than the courts can. Mediators often succeed by helping people understand just how costly, painful, and unpredictable it can be to resolve disputes in court. Mediators may even start to believe that the courts should be avoided at almost any cost!

Why then, should mediators support restoring funds to the court system? For one reason, it is the courts that establish rules against which disputants measure their proposed solutions. People need to understand whether their interpretations of a contract are plausible. They need to know how juries might value various kinds of personal injuries or other torts. Almost by definition, alternative methods of dispute resolution cannot do this. But the judicial system can and does provide a frame of reference that allows parties to test their settlement proposals.

In addition to serving as a measuring stick, the court serves as another kind of stick. Think of the “carrot and stick” kind of stick. Parties attending a mediation or settlement conference need to know that the court system is standing by as an available means of getting their case decided. Mediators often remind the parties that if they can’t resolve their dispute by negotiated agreement, they are going to have to start preparing for trial, an unpleasant and costly prospect for most litigants. If the court system is not functioning properly, that prospect becomes an empty threat. In state courts in California, the time it takes to get a case to trial has become increasingly longer because the courts are under-staffed. When the time it takes to get a case to trial starts to stretch out, then the time that people feel the need to mediate also stretches out.

Mediation therefore functions best in a symbiotic relationship with the court system. The press of cases moving through the courts also helps move cases through alternative dispute resolution. If court delays increase due to funding shortfalls, that is likely to slow down the pace of all other forms of resolution as well.

Once we recognize that ADR works in tandem with the traditional justice system, we still might wonder whether greater reliance on ADR might actually save the state money. Whenever a mediator can persuade parties to avoid filing an expensive motion, the mediator can relieve a burden on the court system. When an entire case is settled in mediation, parties avoid an expensive trial and appeal. I think a lot about how court rules and procedures can be reformed to provide a larger space for mediation. Still I think it’s a dangerous idea to think that we can rely on alternative dispute resolution to help the state deal with budget shortfalls.

The future of dispute resolution that many mediators imagine, while including a greatly increased role for alternative dispute resolution, is not necessarily going to be a cheaper system to operate. It is simply going to operate differently. Perhaps the courts will need fewer clerks and maybe even fewer judges, but the system will need more mediators and facilitators. One danger of the current funding crisis for the courts is that it threatens just the kind of experimental programs that may lead to a greater role for mediation within the justice system. I imagine, for example, that if additional staffing cuts are required in the court system, the courts’ ADR offices will not be entirely spared. It is not a sufficient answer to suggest that litigants can still obtain access to a private system of arbitrators and mediators. Those services will continue to play an important role, but we should not lose sight of the importance of a publicly-funded, publicly accessible system of justice. However we envision the future justice system, that system is still going to play a vital role in upholding the rule of law and preserving the peace. Those basic government functions might need some reforms, but they also need to be supported and well funded.

A shorter version of this article appeared as a post on Joe Markowitz’s mediation blog, Mediation’s Place.

by Joe Markowtiz

Joe Markowitz has practiced commercial litigation for more than 30 years, both in New York City and Los Angeles, and has served as a mediator for more than fifteen years. He is a member of the Mediation Panels in both the District Court and Bankruptcy Court in the Central District of California. He is currently the president-elect of the Southern California Mediation Association. Website: www.mediate-la.com/