July 2013

After more than 20 years of service, Los Angeles Superior Court officials eliminated its Alternative Dispute Resolution (ADR) program as part of budget cuts that also resulted in the loss of 500 total jobs. The ADR program was the largest of its kind in the United States and had served as arole model for other programs.

Thousands of cases were resolved without ever going to court because of ADR, according to Mary Hearn, a spokeswoman for Los Angeles Superior Court. During the 2011-2012 fiscal year, the ADR program worked with 14,045 cases, resolving 12,906 of them. This cost free, effective program was eliminated, essentially without explanation. With fewer people working for the court, this move makes little sense. Here are a few reasons:

-Court officials say they are inundated with work. The ADR mediators provided three hours of work to the parties pro bono. In some cases three hours was all that was needed to settle a case. Any additional billing was sent to the parties.

-Mediation brought cases to settlement sooner than a lengthy court battle would. Often, the parties would modify their demand so that it did settle.

Before ADR, it could take up to five years for a case to get into a courtroom. After that, the court could continue the trial for another two years, avoiding the five-year statute requiring trial to begin within five years. This gave the parties reasons to stall. This is reminiscent the saying “Justice delayed is justice denied.”

What does this mean for the thousands of cases that go through Los Angeles Superior Court? The parties can still seek private mediation to resolve their disputes. The ADR program proved the value of mediation to the parties and the courts.

Those who don’t seek mediation will likely have to wait for a court date which could take five to seven years. Some may give up on their case rather than wait. Others may take bad settlements out of frustration. These are options that give defendants such as insurance companies in civil suits an advantage. Injured parties that need money fast to pay for medical expenses and bills may settle more quickly than if they had the chance to mediate.

Court officials have not said if the ADR is permanently closed but have indicated they are facing a budget shortfall of up to $55 million. The case statistics from the 2013-2014 will give a clear picture of how this affects the court system.

If you have any disputes regarding General Business Issues, Real Estate, Personal Injury, Product Liability, Construction, Aviation, and Insurance, contact Michael Rainey at 818.501.1618, visit http://michaelrainey.com, or email him at michael@michaelrainey.com.  As a highly skilled neutral, Michael brings the right combination of process and personality to successfully reach agreements in mediation, and to make appropriate decisions in arbitration.

Michael Rainey Press Release July 23, 2013

Michael Rainey Press Release August 8, 2013

August 2013 Blog

One of the tenets of mediation is that the mediator should be neutral.  The mediator is there to facilitate a settlement that will keep the adversaries out of court and makes no judgment based on what he or she hears.   Mediation is used in almost all kinds of civil cases including but not limited to, child custody, real estate and personal injury.

In the age of the Internet, mediators and attorneys have established a presence online.  Just like other businesses, these professionals have to let others know they are there.  Hanging a sign outside an office door and hoping someone will drive by and see it or placing a business name in the phone book is not likely to draw the amount of clients needed to sustain a business.

Often defense attorneys, particularly those associated with insurance companies, are the ones who suggest the mediator.   This raises the question about the true neutrality of mediators.  And do insurance companies really want unbiased neutrals?  The answer to this is “yes” based on these principles of mediation, many which are based on state and local court rules.

The mediator/arbitrator makes no decisions.  The settlement terms are actually up to the parties involved.  The mediator is just there to facilitate the discussion.

The mediator is required to disclose any conflicts of interest he or she may have regarding the parties.  For example, if the mediator represented either client in court on another case, that will be disclosed and the mediator may be disqualified.  Both parties must have confidence that the mediator is impartial.

Mediators must not be partial or prejudice to either party because of the party’s background or personal information.  Also the mediator cannot discriminate based on the actions of a party during the mediation process.

Keeping these principles may seem impossible, especially if the case is contentious and one party may seem right or wrong.  This is where the training of the mediator is important.  Most states do not have requirements for practicing mediation but they do have standards and rules adopted by state and local court systems.  If a mediator fails to meet these standards or breaks these rules, he or she could face sanctions.

In addition, many mediators take specific courses that help them with their mediation skills.  Pepperdine University has a master’s of law degree program through their Straus Institute of Dispute Resolution with a Mediation Specialty.  Other colleges and universities across the U.S. offer continuing education in mediation.

Resource Box

If you have any disputes regarding General Business Issues, Real Estate, Personal Injury, Product Liability, Construction, Aviation and Insurance, contact Michael Rainey at 818.501.1618, visit http://michaelrainey.com, or email him at michael@michaelrainey.com.  As a highly skilled neutral based in Encino, California, Michael brings the right combination of process and personality to successfully reach agreements in mediation, and to make appropriate decisions in arbitration.

September 2013 Blog

Some courtroom attorneys live for the victory.  You often hear them discuss their latest win or less often, you may hear them lament over a defeat.  If you hang around a courthouse, you may hear a mediator say, “I settled the case today.”  This statement may baffle some who know that mediators are supposed to be neutral third parties who lead the parties into settlement.  But how much power does a mediator have during a negotiation?  Can he or she directly settle a case?  What is the ethical responsibility of a mediator?

First, mediators are governed by federal, state and local court rules.  While the rules differ from state to state and jurisdiction to jurisdiction, most of them agree that the mediator should be a neutral third party.  If the mediator has any ties to either party, he or she is required to disclose those ties.  Many jurisdictions allow the parties to choose the mediator while in some cases the court may assign one.

Second, mediators have specific tasks they are to do during the process.  Mediators should:

• Facilitate the parties’ discussion of the interest and needs.
• Assess and articulate the strengths and weaknesses of each party’s position.
• Facilitate the negotiation.
• Motivate the parties to settle.

If you notice, nowhere in the tasks listed above mention anything about the mediator “settling” the case.  But some mediators who regularly say, “I have no power,” exert influence in such a way that it tilts the table one way or the other.  Ethically, this is wrong.  Mediators are mandated to be neutral and must find a way to bring the case and discussion back to center.  In some states, if mediators are found to have “tilted the table” or had an influence on the settlement of a case, there could be sanctions.

The appropriate behavior of a mediator extends past influencing the case.  In Florida, a mediator who commented on a woman’s appearance and jewelry was sanctioned.  Mediators have also been sanctioned for violating confidentiality rules.  What happens in mediation is supposed to stay in mediation given a few exceptions such as a confession of a crime.

The mediator may be elated when he or she leads the parties to a settlement.  Is this a victory?  In many ways it is.  By settling the case, the parties avoided a costly and possibly lengthy court battle, which is the goal of mediation.

Resource Box

If you have any disputes regarding General Business Issues, Real Estate, Personal Injury, Product Liability, Construction, Aviation and Insurance, contact Michael Rainey at 818.501.1618, visit http://michaelrainey.com, or email him at michael@michaelrainey.com.  As a highly skilled neutral based in Encino, California, Michael brings the right combination of process and personality to successfully reach agreements in mediation, and to make appropriate decisions in arbitration.