Yesterday I mediated my last case referred by the Los Angeles Superior Court mediation program (aside from a couple of cases I am still trying to wind up as private mediations). This last case turned out to serve as a good illustration of some of the problems with the LA program. It was a case involving a high dollar amount, making me wonder why the parties chose a randomly-assigned mediator for three free hours. One of the attorneys was determined to insult the mediator, reminding me that I was chosen at random and admonishing me not to speak to her client. Another attorney refused to engage in any substantive discussions about the case until after the other side presented what he judged to be an acceptable demand. Which of course they would not do. Since it was obvious the parties were not there for a serious settlement discussion, but only to persuade each other that they were both ready to go to the mat, I was not sorry to see them leave.
For cases like that, the end of the court program could not come soon enough. Those parties have the wherewithal to select a private mediator when they’re ready to discuss settlement. There is very little justification for offering them a free ADR program.
On the other hand, I settled a handicap access case recently which served as a good illustration of the need for a program like the court program. These cases typically settle for between $5000 and $10,000. The settlement amount usually barely justifies the time the plaintiff’s lawyer and the plaintiff (usually a wheelchair-bound person making part of his living enforcing the handicap access requirements) have put into the case, but is more than the defendant (usually a small business owner barely making a profit) can comfortably afford. That makes settlement difficult, but also makes settlement imperative, because the alternative is much worse for both sides. And the cost of a private mediator is hard to justify in those cases.
Now that the court program is ending, I don’t feel bad at all for the parties in the first kind of case. The only use they were making of the court’s free mediation program was to abuse it. When they’re genuinely ready to mediate, they can call me, or call some other private mediator. There is no shortage of people ready to help them, they can afford it, and they will have more respect for the process when they are paying for it. I should make clear that I don’t feel offended by everyone who uses the court panel for large cases, just the people who don’t respect and appreciate the service.
For the second kind of case, it’s a shame the court program is ending, because they desperately need help in resolving their dispute, and the mediators who serve on those cases can feel good about the public service they are providing. In the most recent case of this kind, one of the lawyers told me they are not sure how they are going to be able to resolve these cases economically now that the court program has ended.
I and others have been working on behalf of the Southern California Mediation Association on a program that will hopefully serve both kinds of cases well. It might take a little more initiative from the parties to use our new program. The court will probably not coerce parties into using mediators who are not members of a court-designed panel. But we will provide a list of market-rate mediators from which parties will be able to choose, and we will also provide a list of mediators willing to work at a reduced rate that may serve the needs of smaller cases. In either case, no one is going to be coerced into participating, and that may make a lot of difference to the success of mediation for parties smart enough to choose it.
by Joe Markowit