Friday, June 20, 2008
LACBA Tables Proposal to Charge Parties for Mediation
By STEVEN M. ELLIS, Staff Writer
The Los Angeles County Bar Association’s Board of Trustees has decided to delay consideration of a proposal to ask the Legislature to require parties who choose to enter mediation in general civil cases to bear the costs, including the mediator’s compensation.
The board voted Wednesday night to table the proposal until its Sept. 24 meeting in order to give the association’s delegation to the Conference of Delegates of California Bar Associations an opportunity to consider the proposal, and report back to the trustees.
The vote came after the Executive Committee of the association’s Litigation Section unanimously recommended that the board oppose the proposal, which the Beverly Hills Bar Association put forward in a March 3 resolution to the Conference of Delegates.
Mediators Charles B. Passelle and Elizabeth Moreno, the latter the proposal’s author told trustees that the current system by which most mediators serve without compensation is unfair when parties who voluntarily enter mediation possess the means to pay for it.
Los Angeles Superior Court Judges Helen Bendix, who chairs the court’s Alternative Dispute Resolution Committee, and Margaret Oldendorf, a member of that committee and of the Litigation Section, criticized the proposal, contending that it would discourage mediation and hinder the court’s outreach efforts. They also said that its requirement that the court take responsibility for ensuring that parties of limited means have access to mediation would overburden a civil court system already stretched thin.
The trustees tabled consideration based on the recommendation of Donna Hollingsworth, chair of the association’s delegation to the 2008 Conference of Delegates, who said that any action by the trustees now would tie the delegation’s hands on any potential negotiations on the proposal when it came up for consideration at the conference.
California law promotes the use of mediation to resolve general civil disputes, and grants the Los Angeles Superior Court—and any other counties that so elect—authority to order mediation in matters where the amount in controversy is between $25,000 and $50,000.
If the amount in controversy exceeds $50,000, courts can only assign the case to mediation with the parties’ consent. Similarly, although state law allows courts to order mediation in cases under $25,000, courts can opt out and require the parties’ consent, which the Los Angeles Superior Court has elected to do.
Courts appoint a mediator from a pro bono panel, who provides three free hours of mediation to all parties, regardless of whether they enter mediation by order or by stipulation. If the matter remains unresolved, the parties must then decide whether to continue mediation and, if so, reach agreement with the mediator on compensation.
State law mandates compensation for court-appointed mediators, but ties it to the compensation for arbitrators, which is set at $150 per case. However, due to a budget crisis at the time the program was enacted, mediators were never paid, and panel members are asked to mediate pro bono publico, for the benefit of the public.
Although some see the panel as an opportunity to expand name recognition in order to grow their practice, and others see it as public service, it was said, some mediators have cried foul over the lack of compensation, particularly with respect to cases where parties who chose to enter mediation voluntarily possess the means to compensate a mediator.
The Superior Court’s Alternative Dispute Resolution Committee tried to address these concerns in 2004 by launching a Party Pay Mediation Panel, containing mediators who would be paid by the parties up to $150 per hour for the first three hours. Mediators on the panel were supposed to be more highly qualified than those on the pro bono panel, and had to show completion of at least 25 mediations and agree to yearly continuing education.
Nevertheless, Moreno and Passelle said, many mediators remain unsatisfied, believing that parties will not pay for their services if they can get them for free.
The two told the trustees that the proposal would not affect the court’s ability to maintain the pro-bono panel, noting that mediators could still donate their time under the revised statute; that many of the cases in mediation would settle anyway; and that the proposal would not impose an additional burden on the court, which could use its existing system for processing requests for fee waivers.
They also told the trustees that it was unlikely that the Beverly Hills Bar Association would oppose a friendly amendment at the Conference of Delegates to exempt cases involving less than $25,000 from the proposal.
But Bendix, conceding that the mediation community had valid concerns, said that the proposal was not the right approach.
“This is about public satisfaction with the justice system,” she said. “Mediation is about more than preventing trial.”
Bendix strongly disputed claims that the proposal would have no effect on the number of cases that required trial, telling the trustees that the history of mediation itself belied any such assertion. She also said that the proponents failed to accurately assess the burden on the court of determining eligibility requirements and whether parties met them, especially in light of the ongoing budget crisis.
In fact, after a heated exchange with Passelle outside of the meeting room after the speakers had been excused, she told the MetNews that his statements about the existing fee waiver system and the court’s ability to implement the proposal demonstrated a “profound misunderstanding and miscommunication” about the system, saying that she found it “difficult to respond without embarrassing him.”
Parselle maintained that his intent was to tell the trustees that any party whose request for a fee waiver was accepted would be entitled to free mediation, and that basing the eligibility requirement on the existing fee waiver requirement would not add any new burden.
A fellow mediator, Robert Tessier, noted that low-income individuals would still be entitled to pro bono mediation under the proposal.
“Nobody is trying to change that,” Tessier said.
Copyright 2008, Metropolitan News Company