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Published in Advocate Magazine in September 2012 

 

Mediation’s Evolution in SoCal:

Where it has been and where it is going

 

by Lee Jay Berman

Mediation today is being done very differently than it was just five or ten years ago, and it has changed dramatically since 1995, when it was first introduced into California’s general civil litigation world.

This means that in order to successfully represent clients in mediation, advocates have to adapt, too.  What worked just a few years ago, doesn’t necessarily work today.


Volume and repetition have fueled evolution.

Looking at just the Los Angeles Superior Court mediation program, not counting any of the private mediation providers or private, independent mediators, this program has funneled about 25,000 cases a year to mediation for over 17 years.  So, there have been over 400,000 mediations just in this one county, and just through the court program. 

That means that most mediators who have been mediating full time for that long have mediated well in excess of 1,000 cases, so they have seen over 2,000 lawyers argue their case, advocate for their client and negotiate – successfully or unsuccessfully – in that time.

Talking with the litigators with whom I mediate, the average seasoned advocate has represented clients in 100-500 mediations, and of course, some have been in many more than that, giving them the advantage of having seen many dozen different mediators’ approaches to settling cases.

Given that mediation is most often framed as a competitive model, lawyers have had to raise the level of their game – from advocacy to negotiation to client counseling – to get cases settled with the most advantageous outcome.  Attorneys who are still negotiating by using the same tricks they used 10 years ago are going to be about as effective today as the secretary who mastered the IBM Selectric typewriter and never took to word processing.

Evolution in the approach to mediation

Suggesting mediation to opposing counsel doesn’t make one appear weak.  It was perceived as such 10 years ago, but today, because mediation has a foothold in the legal process and is accepted as “something we’re going to do sooner or later”, one doesn’t look week to opposing counsel by the mere suggestion that the parties consider mediation. 

California courts no longer need to order cases to mediate.  By now, with some 400,000 court-annexed mediations under our collective belt, every lawyer in the state knows what mediation is and how to access it, and by now, should be trusted by the court to make their own determination about which cases would benefit by going to mediation, when the appropriate timing is on a case by case basis, who their mediator should be for that case, and where it should take place to be convenient to all parties.

With budgets being cut throughout the courts, we probably can’t afford to have the courts operating a mediation provider entity because the lawyers no longer need the “cover” of being ordered, when they can now pick up the phone and ask opposing counsel, “What would you think about mediating this one?”  An even better approach might be, “It’s my standard practice to recommend to my client an early mediation in every case, would you be willing to do the same in this case?”

Lawyers are well suited to decide when there has been enough discovery for a case to be ripe for settlement discussions.  By now, we have all experienced the “premature mediation” where neither lawyer knows the case well enough, but they needed to comply with a court order to mediate by a certain date.  Less recognizable, but equally frustrating is the “entrenched mediation” where the mediation is being conducted a week before trial and the lawyers have all adopted their clients’ stories as the pure, unbridled truth, and have had heated discovery battles and contentious depositions, bringing the case to mediation only after everyone is entirely entrenched in their opposition to one another, with all trust evaporated and suspicion running high.  The lawyers, in consultation with their clients, are best qualified to decide when to bring a case to mediation in today’s environment, and should be trusted to do so.


Mediator selection era by era

Mediator selection has evolved perhaps as much as any facet of the ADR process.  When private mediation first made its impact, advocates took to a familiar selection process borrowed from arbitration: the strike list.  Each side sent three names to the other, each struck two, and they would arm wrestle over the final two, usually yielding to whoever objected most strenuously to the other’s remaining selection.  During this early period, counsel suffered from what psychologists call reactive devaluation, referring to when one dismisses any suggestion made by the other simply because it came from the other, and without regard for the quality of the suggestion.  To assist with this problem, counsel often preferred working through a provider organization where, for example, the American Arbitration Association would give out five neutral resumes and ask each attorney to strike two.  While this process was efficient and final, the result was often the lowest common denominator neutral, rather than the most skilled.  Or it resulted in the one most unknown to both sides.

Soon, counsel realized that because mediation isn’t binding, the mediator had no power over them, and so they placed less importance on who their mediator was.  Mediators, for a short while, became somewhat fungible.  The common feeling in this second era of mediator selection sounded like, “I can sell my case to anyone, so if the mediator has some relationship and traction with the other side, that’s what matters to me.”  While correct in recognizing that the mediator’s relationship with the other attorney can be persuasive, many soon realized that by abdicating their voice in the selection process, they could end up with a mediator who was less skilled, and perhaps wasted an opportunity to settle the case.  In fact, few days can be more frustrating, disappointing and harder on the all-important attorney-client relationship than a day spent mediating without much progress.

In the third generation of the selection process, counsel began to realize that mediators can have vastly different styles and approaches, and that who the mediator was became a hug variable in settlement, so counsel started to pay much more careful attention to selecting their mediators.

Counsel, with increasing experience and exposure to different mediators, fast learned that there was no sure formula for success – no black robe or specific litigation experience meant that one would be an effective and efficient neutral.

Soon, the trade-offs in styles became clear.  The efficient mediator could often alienate the lawyer’s clients.  The touchy-feely mediator could frustrate counsel with their seeming lack of progress.  The most highly experienced expert litigator or judge turned mediator could seem arrogant up close.  And too often, the most popular flavor-of-the-day mediator really wasn’t very good, leaving one to wonder how they became popular in the first place.  Lawyers in southern California began to look to the Daily Journal’s annual “Top Neutrals” list and organizations like the International Academy of Mediators to filter the good mediators from the rest, and while this remains a fairly good filter, it is by no means a guarantee of quality or skill.

Interestingly, during this third era, mediator skill, range and repertoire quickly outdistanced neutrality as the most important quality in mediator selection.  During this period of enlightenment, mediator experience (or “time in the chair”), training and study, and the mediator’s experience in and focus on the substantive area of law became of paramount importance.  Finally, counsel grew weary of the “9-5” mediator, whose focus seemed to be on billing for a full day, and quitting at 5:00 without regard for the progress or proximity to settlement, conjuring an image of Fred Flintstone when the quitting time whistle went off.  It only took one experience with this phenomenon for counsel to add to their checklist redeeming qualities like stamina, energy, tenacious and relentless.

As we stand today, seasoned counsel in a mature mediation market such as southern California recognize the need for a mediator who is wise, personable, prepared, a quick study, empathetic to their clients, approachable, strong, good at reading people, who understands insurance claims and coverage, knows his or her way around the specific area of the law or business industry, is articulate, persuasive and, above all, a closer.

The latest trend in mediator selection, perhaps the fourth wave, is the move toward purchasing neutral services through provider organizations.  At the risk of offending my colleagues by omission, it is probably safe to say that southern California generally has two national ADR providers (AAA and JAMS), and three well established regional providers (ADR Services, ARC and Judicate West).  As the market for mediation services has grown, perhaps exponentially, and these providers have come to dominate market share over the last decade.  Their rosters grew from dozens to hundreds of neutrals, and the buying patterns became clear.

Legal professionals were as comfortable with these brand names as home sellers were with Coldwell Banker, Century 21 and RE/Max.  And like Mike Glickman did 20 years ago, entrepreneurs are successfully entering the mediation provider marketplace to compete alongside of the established giants, including PMA Dispute Resolution, a boutique with fewer than 20 highly successful neutrals, and the Agency for Dispute Resolution, a start-up whose panel is a mix of ambitious up and comers and seasoned veterans.  Finally, we are seeing the advent of the field-specific provider with organizations like the Entertainment Mediation Institute, mostly an assemblage of entertainment law veterans turned neutral. 

The market share owned by provider organizations, in comparison to independent ADR professionals, in my own estimation, has reversed from 10-90 to 90-10, a trend that I only see continuing.  When I travel to mediate across the country, I hear that this California phenomenon of a provider-dominated market is fast spreading to other states.  Who is the last independent Realtor you can recall?  The same is becoming true for the mediation world.  While it may result in higher neutral rates, as the providers take their share, it offers the benefit of more professional case management, from scheduling to billing, and the impression of a filter for quality, all of which is important to counsel in a mature market.

Structure of the mediation process

In 1995, mediation took its format from one of two places – either from the settlement conference model, where the neutral leaned on counsel for movement and rarely engaged with the real parties in interest, or from the community mediation model where the mediator’s hands were tied and all they could do was facilitate until it came time to hold hands and sing Kumbaya.

What has happened to the structure is interesting. In an organic way, most of the top mediators in southern California have gravitated, by trial and error, to roughly the same kind of process.  Agreeing that most commercial cases move most efficiently in a separate caucus model, and acknowledging that it makes no sense at all to have litigants walk through the mediator’s door and immediately sit in the same room, but also recognizing that it’s important for them to lay eyes on each other, especially if “them” is a plaintiff and an insurance adjuster who has never seen the plaintiff before and needs to assess how that person will present at trial, most mediators moved to a process where the parties and their lawyers will each be given a room where they will spend most of the day, but by mid-morning, after a series of individual check-in meetings with just the mediator, the mediator will often bring them together for a short face-to-face meeting where the mediator can cover ground rules, confidentiality and manage the parties’ expectations for the day.  On an unspoken level, the parties get to see and know that the other one is there and equally miserable and going to spend the entire day in the same frustration as they are.  Unless a case is relatively new or counsel don’t know each other’s theories of the case yet, usually not much cross-talk occurs.

What is nice, is the number of cases where the defendant asks to make a conciliatory opening, apologizing that the dispute has escalated to this level and reassuring the plaintiff of their sincere desire to work in good faith toward a settlement to bring about closure on this day.  Those kinds of overtures, when sincere, can go a long way.  There is also a lot that the mediator can do in that moment to remind parties that the people across the table aren’t their enemies for today’s purposes, rather, they are the ones who hold what each of them came there for that day.  This is a pinnacle moment where the mediator can change the paradigm within which the parties and their counsel operate.  This opportunity is increasingly being seized by enlightened mediators, making these early joint sessions impactful, if done right.

The last significant structural trend is that of meeting in irregular caucuses.  Seasoned mediators are finding it helpful to meet with only counsel in the middle of the day, and occasionally, under the right circumstances and with the right permissions from everyone, sometimes with just the clients, whether they are the business people or the injured and the adjuster.  Direct communication along these lines is incredible helpful, and increasingly is only frowned upon by counsel who are averse to conflict.  As we continue along this timeline of mediation, we will continue to see unorthodox meeting formations, especially later in the day when the mediator has a good feel for where they can build a bridge between the separated rooms.  This evolution requires a skilled mediator who has his or her finger on the pulse, and also flexible and trusting counsel, who have familiarity with the mediator from prior cases or who have watched the mediator work and have come to a conclusion that the mediator has their clients’ best interests in mind.

More sophisticated negotiations

It is said that Americans are culturally deprived when it comes to negotiation.  It’s true if you think about it – we only really negotiate when buying houses and cars, and occasionally our salary, if that is negotiable.  In some other countries, everything is negotiable.  Can you imagine walking into your local supermarket and when the clerk rings up a total of $121.10, saying, “I’ll give you $50 for it!”  Not here, where everything has a price tag, and we complain if it’s missing one.  I often joke that the little nine year old dragging a case full of jewelry up a Mexican beach has done more mediation by the time s/he is 13 than most Americans do in a lifetime.

While attorneys have negotiated settlements to lawsuits for eons, studies show that most don’t have the stomach for negotiations that go more than three to four steps on each side.  What mediation has done, is often force counsel and clients to negotiate many more steps in the process.  While this has frustrated some who are more rigid or short on patience, others have used the experience to learn more about negotiation by trial and error. 

I was especially tickled one day when defense counsel walked in with his young adjuster in tow.  As I chatted with the lawyer, and asked about his kids and we reminisced for a minute about the last case we had settled together, I looked down to see his adjuster had numbered down the left margin of her steno pad:  1P, 1D, 2P, 2D… and so on to 7P, 7D.  She told me just how many moves she planned (read: had been trained) to use to dole out her authority, and that she expected plaintiff to make the first move, and her to make the last.  They do say that distributive negotiation is nothing if not predictable!

What the explosion of mediation in southern California has done is cause lawyers and clients, especially the institutional ones, to learn more about, and become much more comfortable with, the art and science of negotiation.  When I ran Pepperdine’s Mediating the Litigated Case program for seven years, not only did we train hundreds of lawyers in negotiation skills every year, but we were also hired to travel the country training business people to negotiate better.  Our most notable experience was when one national insurer hired us to train every one of their claims people across the country.  This is an experience that every mediator should have.  I learned an incredible amount about their process, and how they are taught to negotiate, and how management measures and rewards them (that is a whole separate article).  Mostly I learned how little they knew about negotiation before we got there, and watched as they learned and practiced and got stronger.  Cases now going to mediation require extensive negotiation, and those flying by the seat of their pants and following their guts are severely disadvantaged.

Part of the more sophisticated negotiation trend includes learning how to game the mediator.  The most common game I’m seeing these days is the set-up for the predictable mediator’s proposal.  Too many of my colleagues have come to rely on the mediator’s proposal.  To be fair, that is in part because too many advocates have become dependent on it, even insisting on one at times.  But, like any other negotiation technique, it can become predictable.  That is where the problems begin.

For any who don’t know, the mediator’s proposal, usually done in a double-blind method, is where after an extensive negotiation that hasn’t yet resulted in settlement, the mediator is asked (or offers) to select a number at which s/he thinks the case could or should settle.  Each party is given the number, and decides independently whether they will agree to it or not.  Then each tells the mediator their decision confidentially.  If they both agree, then they have a deal.  If one or both said no, then there is not a deal, and neither gets to know what the other answered, thereby protecting the one who may have said yes by allowing them, for the purpose of future negotiations, to remain publicly at their last number prior to the proposal, so as to not be disadvantaged.

Some counsel and clients have begun to “play for the proposal”, where their entire negotiation plan (and every advocate should always come into mediation with a plan) is based around manufacturing where the impasse will be set up, so that the proposal becomes slanted in their favor.  For example, if plaintiff begins at $400,000 and is expecting to settle at the end of the day for $175,000, if they were playing for the proposal, they would frame the negotiation where they stopped at or above $250,000, and ideally with the defendant at or above $125,000, setting the midpoint at $187,500 or more.  That sets the stage for the mediator to pick a number that is somewhere at or above their target number, and if it’s positioned right, such as plaintiff at $230,000, defendant at $170,000, then the mediator’s proposal might come in at $200,000.  Alternatively, in a traditional negotiation beginning with the same starting point, and target ending point of $175,000, the plaintiff would not be putting the brakes on so high, and would likely end up negotiating all the way down to $175,000.

In this way and others, experienced counsel are raising their level of negotiation prowess and gamesmanship in order to have the upper hand.  More cases used to settle on the day of the mediation.  And at the risk of creating a self-fulfilling prophecy here, today, more cases do not settle that day and require the mediator to follow up, as more counsel understand that they might have additional advantage if they walk away without a deal at the end of that day.

This leads to the next new trend of mediator follow up.  Ten or more years ago, we mediators felt as though we had to be invited into a case, and that it had to be mutual by both counsel.  Today, mediators are expected to seize the role of protagonist and advocate for the settlement, understanding that counsel appreciate us following up and drawing everyone back into further settlement discussions.  This is happening so often, in fact, that counsel have begun to rely on the mediator doing this to get cases closed, leaving some mediators chasing settlements so hard that they end up eating out of counsels’ outstretched hand like a puppy.  There is a delicate balance between the mediator being a tenacious closer, taking responsibility for a settlement and respecting the parties’ self-determination and making them do the work if they want the case to settle.  But in either event, mediators are following up after mediations more aggressively than ever before, and counsel expect the mediator to do just that.  Anything less is viewed as lazy or ineffective.  This is a pendulum that has swung completely in the opposite direction over the years and one that I expect will correct itself over time to become less predictable and more in balance between counsel and the mediator.

The mediator’s position relative to the parties

In mediation’s early days, attorneys approached mediators a lot like they would a trial judge holding a settlement conference – tell them nothing, admit to no weaknesses, and never, ever tell them your bottom line.  Today, after a decade or more of trust has been built through experience, counsel and clients have begun to trust mediators more.  Likewise, mediators have begun to act less like stuffy, distant neutrals sitting in judgment, and more like coaches, partners and confidants of counsel and parties alike. 

More and more I have counsel trusting me with their bottom lines, and even attempting to delegate their negotiation responsibilities, saying, “This is what we will do at the end of the day.  We’ll leave the steps to you, just get us there by 4:00 or so, I’ll trust you.”  While most good mediators will decline such an invitation, the very offer is an indication of counsel’s view of the mediator, less as the enemy and more as a partner in the negotiation process. 

What used to be, “why don’t you step out and let me talk with my client” has now become, “what do you think we should do?”  The latter actually shows seasoning, as that lawyer recognizes that the mediator who should be a negotiation expert, has had the unique benefit of having spent much of the day in the other room, seeing what counsel has not, and that mediator knows more about what kind of response various offers will bring.  In order for this to work, though, it requires a mediator who doesn’t have the mindset that says, “I must get a settlement at all cost and would sell my mother to do it.”  In this kind of relationship, the mediator metaphorically sits on the same side of the table as counsel, rather than across it where opposing counsel would normally sit. 

The mediator can credibly position his or her self along the side of the parties, only once they have built that trust.  After that, the mediator can bring all of his or her training and experience to bear in helping the parties negotiate effectively.

While this, too, is another whole article, I do not consider myself neutral. I don’t even act impartially.  I am what I have come to call “mutually partial”, meaning that I help and coach both sides to get the most of what they came to get.  I coach, advise, and partner with each side in helping them do what is best for their interests.  Rather than being on neither side, I position myself on both.  This must sound strange to those who have not experienced it, but at the end of the mediation, both sides feel as though I have helped them and had their backs.  I don’t tend to argue with counsel, I help them look at what the outcome would look like if things go one way versus the other, and to consider both in making their next risk-based negotiation moves.  I help them evaluate choices that are available to them and effectively weigh their options.  Essentially, I position myself with them, rather than opposed to them.  This is, I believe, a growing trend in the field.  Those mediators who are enlightened are figuring it out, where others keep banging heads together, with no regard for finesse, until they get a deal.  Thankfully, this actually creates more choices for counsel when selecting a mediator, and it is ultimately good for the whole field.

More of a process than a single day

One last evolution is that in 1995, mediation was an event.  It was one day, no matter how long it took.  Respecting the momentum of the process, notoriously determined mediators and counsel plowed until the wee hours of the morning to get a case settled.  Back in those days, I mediated several cases that stretched until two, three, four o’clock in the morning, to settle a complex or highly emotional case.  I prided myself on my personal record of 19½ hours straight to settle a wage and hour claim.  But we’ve all gotten smarter, mediators and advocates alike, recognizing that sometimes taking time to reflect and talk to other people isn’t such a bad idea.

We now recognize that mediation is a process, rather than a day in time.  And that a good mediator is part case manager, part discovery referee, part early neutral evaluator, part client counselor, part negotiation coach, part persuasive closer, and part settlement documenting consultant.  If a mediation is premature, then a good mediator helps the parties to stay on a settlement track, identifying key discovery that is necessary before a productive settlement discussion can occur, while simultaneously keeping everyone from overturning every stone, as if preparing for final adjudication of the matter.  Counsel have repeatedly told me that they want the mediator to take the reins and help the parties negotiate discovery, keeping only to the necessary, such as an independent medical exam, voluntary document exchange, or a key percipient or expert witness deposition, before returning for a more informed final negotiation session.  In construction and product liability cases, it is not uncommon to have an experts’ day, followed by a “money” day, all facilitated by the mediator.

What is also changing is the blending of neutral roles that counsel are asking their mediators to play.  Because mediation is such a flexible process, and the role is loosely defined as “facilitating communication between the disputants to assist them in reaching a mutually acceptable agreement” (California Evidence Code Section 1115), the mediator may do anything that helps the parties move toward agreement. 

Combining this flexibility with counsel’s increasing experience with the process is yielding more and more creative and customized processes and the market is rewarding mediators who are flexible and creative.  Some old favorites we are seeing again are Med-Arb, a blended process where the mediator turns into arbitrator if the mediation portion of the process leaves the matter unresolved (often a self-fulfilling prophecy and rife with ethical slippery slopes, not the least of which is the state’s disclosure requirements for arbitrators), and Arb-Med, where the neutral, after a short evidentiary hearing, makes a binding ruling, seals it in an envelope, and proceeds to begin a mediation between the parties. 

We have also spawned some new hybrids – some creative and others downright scary – including Jury Mediation, where a mock jury is empaneled, delivers a mock verdict, and then the parties mediate, guided by this mock outcome; ENE-Mediation, where the neutral first does an early neutral evaluation and then, somehow, regains neutrality and serves as mediator; and Bottom Line Mediation, which is essentially a settlement conference by telephone that cuts to the chase and doesn’t include the parties at all.

Perhaps the most creative (and fun) process I have co-created with counsel was in a trade secrets case where Big Company had filed a motion to compel Small Company’s bank records, including copies of deposited customer checks, in order to support its claims that Small Company had been stealing their customers.  Small Company argued that if those records were produced, Big Company could put them out of business by selling to those customers at a loss in order to win them all back.  But without those records, Big Company could not conclusively prove its case.  We had to get creative to move this issue along, so to protect Small Company’s privacy enough for them to agree to produce the records, we agreed that the bank would produce the records to me, the mediator, in camera.  Both companies would supply me with their confidential customer lists, I would identify the overlapping customers only, and I would disclose to both sides the exact amount of the deposits in the last calendar year for each of those companies.  After doing that, we reconvened for a mediation, using those amounts as evidence of damages and settled the case in one day.

As we become more comfortable with mediation and other ADR processes, we can stretch the bounds and customize it to meet the needs of the parties in any given case.  The danger is that in doing so, we must pay close attention to the neutral’s ethical guidelines.  The benefit can be tremendous savings through efficiency and economies of scale, as well as the protections afforded by mediation’s strong confidentiality protections.

Court programs

In 1995, Senate Bill SB 401 passed, begetting CCP 1775, bringing the mandate from our state legislature that the Los Angeles Superior Court (LASC), and any other county that wanted to opt in, was to set up a mediation program for all cases under $50,000 (those that were otherwise eligible for Judicial Arbitration).  Almost immediately, the court blew the lid on this limit and began sending cases of all sizes into the program, and at its peak was sending over 40,000 cases a year to court-annexed mediation.  San Diego and Ventura opted in from the beginning, and slowly other southern counties began to roll out programs, from Santa Barbara to the Inland Empire, court-annexed mediation (ordered, or simply “referred”) had arrived.  Even Orange County recently attempted to launch a program of sorts.

Some of the early programs learned from their experiences and modified their rules to enable them to better serve the court’s customers.  Due to budget cuts, Los Angeles’s program turned into a volunteer program for the mediators, and they soon found that in order to attract more experienced mediators, they needed to add a program they named the Party Pay program (now called Party Select), where the mediators have agreed to cap their fees to a court mandated rate for the first three hours of each case, which was at least better than volunteering.  San Diego and Santa Barbara offered market rate panels of mediators for cases above $50,000.  Santa Barbara and some others added panels of other kinds of neutrals (special masters, discovery referees, early neutral evaluators, binding arbitrators, etc.) in an effort to emulate the multi-door courthouse concept that came from the Harvard program’s early work.

Interestingly, after the first five years, court mediation programs had enormous disparity in their success rates, ranging from 28% on the low end to a high of 82% on the high end.  Upon further study, the most important determinant of this success was voluntariness.  The programs that allowed counsel and their clients to opt into the mediation program, select the timing, and select their mediator fared at the higher end of that range.   Those whose programs were highly mandated, either not trusting counsel or not equipped to manage such complexities, scored near the bottom.

These court programs had a huge effect on mediation as it is practiced in southern California today.  On one hand, it exposed civil litigators to the mediation process in the mid-1990s when resistance was high and confidence was low.  These programs accelerated the exposure and eventually acceptance of mediation.  Some have said that the other thing they have done is educated counsel and parties in some counties that mediation is something they should get for free, whether paid for by the court or by the mediators volunteering their professional services.  And yet, rightly, if a court is going to mandate an extra process, some say that the court should not then make the litigants pay for it, lest they reduce access to justice.  So, it’s not so much that the jury is out on court-annexed mediation, but rather that we must accept that, like anything else, there are pros and cons to it.  And arguably, more good than bad.

As the LASC tweaked its program, its resolution rate rose from 33% to almost 50% and as they added the mid-level Party Pay program, we saw a new phenomenon:  stratification of cases.  Lawyers now merchandise their cases, bringing the smaller, less challenging cases to the free court program (now called Random Select in the LASC).  They bring their compromise cases, where one side or the other refuses to pay for the mediator of their choosing, but the other side thinks the case demands a more experienced mediator or wants to exercise their choice, to the mid-level panel, where the mediator is paid, but a relatively modest fee by the parties.  And they bring their larger, more complex cases, or those with a lot at stake or with highly emotional or entrenched clients to private mediation. 

This exercise of measuring a case for the appropriate level of service is actually a relatively new revelation, and is a step in the right direction when one is considering mediating.  Not every case can be resolved by a newly trained volunteer, likewise, not every case requires a $15,000/day mediator.  This broadening of the mediation market, coupled with more awareness of the market’s nuances, forms a higher level of thinking about the process, which arguably leads to higher levels of counsel preparation of the case, client and mediator, in addition to increasingly pairing the right mediator with the right case, all leading to greater levels of success in mediation overall.


Disclaimer

Every bold article needs a disclaimer.  In case it’s not already obvious, clearly what is above does not apply to all lawyers, all mediators or all cases.  Each must be managed based on its own individual circumstance.  Rather, what is above is intended to call out the trends, the fashions, and the evolution of the mediation process as it is practiced in this unique market that has matured and bulked up on steroids, due to the number of cases being mediated annually in southern California over these 17 years.

Where is mediation going from here?

Mediation is here to stay.  There is no doubt about this fact.  The real question is where is it going from here.  What I predict we will see is that continued budget cuts in government will limit courts‘ ability to dispose of conflict as efficiently as it has been.  These cuts will also reduce the court’s ability to fund mediation programs.  Once they are convinced that a significant portion of their civil dockets will continue to disappear because parties are mediating in the private sector, we will see a hand-off of the administration of mediations from the public to private marketplace, with the latter being dominated by well-branded provider organizations.

To the extent that courts continue to back up due to funding cuts, and time to trial grows, we may see cases becoming significantly more difficult to settle because of a lack of incentive on the defense side.  Without the pressure of an imminent trial date, plaintiffs may have a tougher time getting settlement dollars out of institutional defendants.  Should that happen, mediation will lose some of the effectiveness it has enjoyed over the last decade and a half.  Having said that, mediation is still growing and thriving in India, where the average time to trial was 35 years when I was last there.

We will continue to see a greater diversity of mediators in the market, too.  Not just diversity of race, gender and age (as the younger ones start coming out of grad school with advanced degrees in dispute resolution and 10 years’ experience, having mediated since peer mediations in middle-school, not unlike the little boy on the beach in Mexico), but also in work and life experience.  As the market continues to embrace specialization, construction cases will continue to see mediators who come from construction and design professions, healthcare cases will increasingly demand mediators who have run hospitals or who understand the medicine first hand, and so on.  Not to the exclusion of lawyers and retired judges, never to that extreme, but we will see a continued balancing of the variety of experiences people bring to mediation until we begin to see those with no prior work experience, but who come to mediation as their first career out of school.  That day is not as far away as we might think – in large part because it has been building here in southern California for two decades.

We will see mediation move earlier and earlier in the process, from early mediation programs in courts to legislation and court rules requiring mediation prior to filing, much like the increase we have seen in pre-dispute mediation provisions in commercial contracts and employee manuals.  We will begin to see attorneys getting involved sooner in these processes in order to assist their clients with those early mediations.

Lastly, the private marketplace will continue to become more discerning in its procurement of mediation services.  With increased competition, there will be a Darwinian effect leaving only mediators who can demonstrate the skill set at the highest levels.  And we will see more and more educated and sophisticated advocates in the mediation process, who recognize when mediators have the ability, and are able to step in and salvage and otherwise doomed day, in the event that the mediator does not.

In closing, please go wisely, use an abundance of caution, but feel free to be guided by the roadmap laid out above.  And if you are from another jurisdiction, it is probably a safe bet that eventually these trends will seep their way into your marketplace, too, so forewarned is forearmed.  I’d like to encourage you to enjoy the ride.  Not every mediation you experience is going to be amazing and magical, but an increasing number will be.  Enjoy, notice, learn, appreciate and reward those experiences, and continue to sharpen your tool to get good results for your clients.

**Also available in PDF.

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Lee Jay Berman is a commercial mediator based in Century City who enjoys a practice that takes him traveling the country and the world.  His biography is online at http://aiminst.com/ljbpma.  He can be reached through PMA Dispute Resolution at 310-203-0700 or ljberman@pma-adr.com, and he is interested in your thoughts about this article.  Please feel free to reach out with comments and questions.



 
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