Assuming the LA Superior Court proceeds with its plan to close its ADR program this spring, the question to ask is not: how will people find mediators? Because mediators are not difficult to find. A web search will turn up hundreds of private mediators in the Southern California region. ADR provider organizations will be only too happy to refer litigants to their panels. Organizations like SCMA have lists of mediators accessible on their websites. And a number of directories are available in which mediators promote their services.
The real question is whether parties and attorneys are going to continue to seek out the services of mediators after the court stops performing the functions of assigning cases to mediators and following up to make sure that parties complete this step in the process. Assuming that parties and attorneys understand the benefits of ADR and want to continue to avail themselves of it, what obstacles would remain to finding a mediator?
As mentioned in my post on case management conferences, taking the initiative to choose a mediator can be a daunting task. Not because it’s so hard to find a mediator, but because choosing a mediator involves a conversation with opposing counsel and some other steps that many attorneys would just as soon avoid.
First, you have to broach the subject of settlement, which many litigators see as a sign of weakness. You have to suggest a time and place for mediation, and consider what information needs to be exchanged in advance.
Then you have to think about the kind of mediator who is best for your case. Do you want a retired judge who will give you an evaluation of your prospects at trial? Do you want a mediator with expertise in a particular area of law? Do you even want a lawyer or judge as a mediator? Do you worry about whether your mediator’s background is more defense or more plaintiff oriented? Do you want someone who will give the parties and attorneys the opportunity to meet in a joint session and really hash things out, or do you want a shuttle-style settlement negotiation where the mediator filters all communications between the parties? Should you take into account the mediator’s age? sex? political preferences? ethnicity? ability to speak the relevant language? Whatever I say about those factors, they will influence people’s choices.
You might have to do some research. Ask your colleagues whom they have used in recent cases. Read some biographies of a bunch of mediator candidates. Compare billing rates. All that could take a while if you want to do a thorough search.
Finally, you have to reach an agreement with the other side on all of these issues: the identity, cost, time and place of the mediation.
I would argue that all of this discussion and research is probably worth doing in a case of any significant size. Choosing a mediator phase is itself an important part of the mediation process. It sets the stage. It forces the parties to think about the process. And it conditions the attorneys to communicate with each other, and reach agreement on preliminary issues. Mediation is more likely to be successful if parties choose the right mediator for the case.
At the same time, I understand why parties often prefer to avoid all the bother. They may be ambivalent about entering into settlement discussions, thinking they are unlikely to bear fruit. They may not want to expose their strategies to the other side. They may have difficulty communicating with the other side at all. And they may not want to incur the cost of engaging in the process of choosing a mediator. If the court sends a case to mediation, attorneys can avoid all that, and just accept the easy option of a panel mediator provided by the court. The cost seems minimal, but because the parties have not been required to think about the person or process that will work best for their case, the court-ordered system is also less likely to be successful.
The challenge for an organization like SCMA, which is working on this problem, will be to design a process that is sufficiently familiar and easy for the parties and attorneys that they will want to continue to avail themselves of mediation. But if parties have to expend a bit of time and effort and money to get to mediation, perhaps they will find mediation even more worthwhile.
by Joe Markowitz