Monday, September 22, 2008
LACBA to Oppose Proposal to Charge Parties for Mediation
By STEVEN M. ELLIS, Staff Writer
The Los Angeles County Bar Association’s Board of Trustees has voted to oppose a resolution before the Conference of Delegates of California Bar Associations that would ask the Legislature to require parties who choose to enter mediation in general civil cases to bear the costs.
With 25 votes in favor, the board on Thursday approved a request by the Executive Committee of the association’s Litigation Section to oppose the Beverly Hills Bar Association’s proposed Resolution 3-3-08 after hearing presentations by supporters and detractors, and from the association’s delegation to the conference, which voted to oppose the resolution after the board tabled consideration at its June 18 meeting.
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 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 consent, which the Los Angeles Superior Court has elected to do.
Mediators in the Los Angeles Superior Court are appointed from a pro bono panel and provide three hours of mediation without charge, regardless of whether mediation was entered into 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 have never been paid in Los Angeles Superior Court, and panel members are currently asked to mediate pro bono..
The board took action after allowing three proponents and three opponents five minutes each to state their positions, and then hearing from former State Bar president, and former state attorney general, John Van de Kamp, currently a member of the association’s delegation to the conference, who described the delegation’s vote to oppose the resolution.
Mediators Charles B. Passelle and Elizabeth Moreno, the latter the proposal’s author, and Howard S. Fredman, chair of the BHBA delegation to the conference, maintained 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.
Passelle said the resolution would only call upon the Legislature to “provide the same freedoms already enjoyed by everyone else,” and that parties would still settle rather than risking trial over the relatively small cost of mediation. Labeling mediators the “Cinderella of the court system,” he said that “everyone else is invited to the ball” while mediators are required to subsidize it.
Moreno said that proposal would cause the Superior Court to stop “draining” public resources that could be used to help the less fortunate by giving away free mediation to those that can afford it, and cited the current system in the Riverside Superior Court by which mediators are paid, as a workable alternative.
Fredman, a member of the Los Angeles Superior Court’s pro bono panel, described mediations where he was “the only lawyer at the table not being paid,” and said the system needed to be changed, asking “why buy the cows when the milk is free?”
But Superior Court Assistant Presiding Judge-elect Lee Edmon, LACBA immediate Past President Gretchen M. Nelson and James R. Robie, chair-elect of the association’s Litigation Section, argued against the proposal, citing its effect on the court system and the current system’s voluntary nature.
Edmon and Robie said the proposal would limit services the court can provide to litigants in the “vast majority” of cases, and Edmon added that it would negatively impact parties who find themselves just above the poverty line.
Nelson pointed out that temporary judges also serve the court on a pro bono basis, and predicted that parties would wait until the eve of trial to settle, clogging the court and causing it to “grind to a halt.” She also told trustees that “this organization has never legislated against someone volunteering.”
Immediately after the presenters—except Nelson, in her capacity as immediate past president—were excused, Van de Kamp described the vote by two thirds of the association’s delegation to oppose the resolution, and said he thought members had voted against it based on the arguments cited by Edmon, Nelson and Robie.
Adding that the proposal was “all about money…pure and simple,” he told the board that it was “bad precedent to take away the ability to give, and force people to pay.”
The board then discussed a motion to oppose the resolution, and approved it after noting that the action would tie the delegation’s hands on any potential negotiations when the proposal came up for consideration at the conference, but not the individual delegates’ votes for or against it.
Copyright 2008, Metropolitan News Company