At a Southern California Mediation Association meeting I attended today, we heard a version of a talk that Presiding LA Superior Court Judge McCoy has been giving around the county about the effects state budget cutbacks are having on our local courts. These cuts could increase the time from filing to trial of civil cases from about 18 months currently to two or more times that long. One might think that court delays would increase the demand for alternative dispute resolution, but while that might hold true for arbitration, it does not seem to increase the demand for mediation. If we are going through a transitional period where the lag time for civil cases is increasing, that means parties have more time to complete discovery, and a longer wait before facing the pressure of a trial date. That may mean less pressure to mediate the resolution of those cases. Thus, as delays continue to increase, that may actually lead to fewer opportunities for negotiated settlements.
The theme of today’s meeting was whether mediation threatens the rights–particularly the right to jury trial–litigants have in court. Not surprisingly, none of the speakers (who were all proponents of mediation) believed that mediation presents a significant threat to litigants’ rights. (The argument that ADR threatens our rights is also discussed in another post I did last month.) Judge McCoy’s presentation suggested that far from a threat, there is actually a symbiotic relationship between ADR and the courts. When the courts work to guarantee the right to jury trial for all who demand it, and especially when the courts are able to set meaningful trial dates, more opportunities are presented for alternative forms of dispute resolution. Mediators should therefore not be hostile or antagonistic toward the courts; they should instead be fighting to protect the right to jury trial. Preservation of that right actually fosters a climate that encourages parties to settle.
Another presenter, well-known mediator Lee Jay Berman, made the related point that mediators should generally shy away from criticizing the court system as an argument to induce parties to settle. We don’t need to cast doubt on how well the justice system produces justice. In fact, the court system may do a very good job of that, but its results will vary based on a whole range of factors: which judge is hearing the case, what the judge is influenced by during the trial, the composition of the jury, the way the case plays out on a particular occasion, etc. Mediation can produce a better result than litigation, not because the court system gets it wrong, but because a negotiated settlement eliminates the costs and risks of litigation. Mediators should make clear that disputants always retain their right to proceed with their case all the way to trial; that makes it more clear that any settlement the parties may enter into is done by choice, not out of fear or loathing of the court system.
(Lee Jay also mentioned a really interesting program he is hosting this coming Friday, where he is bringing together two adversarial Arizona legislators, not to debate the recent controversial Arizona immigration statute, but to engage in a mediated discussion about it. People say they are disgusted with the partisan, confrontational, hysterical nature of many of our political debates lately. I hope a lot of people turn out to hear a program that offers a much more positive alternative.)
(B. Hampton photo from Flickr)