Mediators of Southern California
When Riverside attorney Joseph P. Myers went to law school in the late 1960s, he recalled there were no courses in mediation. Civil litigation lawyers were expected to be warriors in court.
Now Myers is one of about 90 attorneys in the Riverside County court's alternative dispute resolution program, committed to getting cases settled by a sort of diplomatic shuttling between parties to see if they can reach an agreement.
"It is not easy, going from protecting clients' interests and beating the other side to suggesting compromises" when he is called from his trial lawyer work to act as a mediator, Myers said.
While the program is not quite a year old, and not enough numbers have returned to define how it is doing, participating lawyers such as Myers say it is making a big difference in Riverside's once-jammed civil courts.
The mediation program began in April 2009, just as the Riverside County courts started moving civil cases more quickly to trial after years of backlog while criminal cases were heard in civil courts.
In a recent report to the county Board of Supervisors, Presiding Judge Thomas H. Cahraman said the court had 290 civil trials of all types in 2009, the most civil trials heard by the court since 1999. The court had expanded the number of dedicated civil trial courts from five to eight in 2009.
"The only reason we did not beat the numbers for 1999 is that we have greatly expanded and improved our civil mediation program," he said in the report.
In 2009, Riverside County had more than 66,350 civil filings for cases valued both below and above $25,000, court records show.
The alternative dispute resolution programs were not created to solve the backlog, said Barrie J. Roberts. She was hired by the Riverside County courts in 2008 to direct the plan.
But the coincidental dovetailing of available civil courtrooms with the emergence of the mediation program has helped, lawyers said.
'WILLING TO SETTLE'
"Civil cases are now being assigned out in our county like never before," said Myers. "The fact that a courtroom is available means that parties that were hanging around for a long time, not willing to settle, are now willing to settle."
About 700 cases have been assigned to mediation since April 2009, but results are still outstanding on about 500 of those -- 300, for instance, have completion dates after March and reports have not been returned on another 200.
Of the completed cases, 79 were reported as settled at the mediation session and seven as partially settled at the session. Those seven cases still have a chance to be resolved before trial.
Riverside County Bar Association president Harry Histen, also on the mediation panel, said even if there is no settlement, cases are often helped.
"In an estate case, you might have five pieces of property at issue. Maybe you resolve three or four of them (in mediation). The case is not settled, but it is going to be a much shorter trial -- half a day, not four days."
Roberts was hired to organize, manage and develop the court's alternative dispute resolution programs and arrange training for attorneys to become mediators.
Many of the attorneys participating in the program have been trained by faculty from Pepperdine University School of Law's Straus Institute for Dispute Resolution, where Roberts also studied.
The difference between mediation and arbitration is in style and substance.
Arbitration is closer to a legal proceeding and ends with someone winning and someone losing; mediation is more like a negotiated settlement, in the "win-win" mode.
PICKING THE OPTION
It's up to the court to decide which option is better suited for a case, usually at a case management conference early in the matter. Judges make a decision after talking with both sides. Parties usually get between three and six months to attend a mediation session. Ordered mediations or arbitrations rarely take place.
"It should be that the parties are requesting the program, because it's a golden opportunity to resolve the case early, and in a very cost-effective way," Roberts said.
Personal injury, business, real estate, employment, family matters, probate and professional malpractice cases are among those that work in mediation. Medical malpractice cases are an exception.
Myers said the advantages are clear for participants.
"The parties have control over their destiny, which they don't have when you litigate a case," Myers said. "You never know what a jury is going to decide, and you never know what a judge is going to do. But when you make the deal to resolve the case, you know what is going to happen."
For cases valued under $50,000, mediation litigants get three free hours with a civil mediation panel member. Parties can pick the mediator. Parties ordered to judicial arbitration are not charged for the session, regardless of length.
IN LAWYERS' OFFICES
Mediation sessions usually take place in lawyers' offices, with litigants placed in different rooms and the attorneys shuttling between them. By state law, disclosures and discussions during mediation are not fodder for court if the case goes to trial.
It also means litigants can vent anger and ask for items that courts would not recognize as part of a legal settlement, such as an apology.
The results from a mediated settlement can be more reliable as well, said Riverside attorney Harlan B. Kistler, another mediation panelist.
"At trial, after a verdict becomes a judgment, you may have to hire a collection attorney," or the losing party may use a tactic such as filing for bankruptcy. "In an agreement, you are likely to get a judgment that will be satisfied," he said.
Roberts said 90 percent of participants who filled out a post-mediation survey form said their experience was excellent or good.
One thing that gets in the way of settlement is lack of preparation by the participants, Roberts said.
Attorney Jay S. Korn said he asks for briefs from both sides setting out their case before he begins a mediation session.
"That way I have an understanding of the case before I go in," Korn said. "They let me look at the impediments to settlement. And eventually, after a trip or two to each room, we start talking about numbers," he said.
Reach Richard K. De Atley at 951-368-9573 or rdeatley@PE.com