A Little Mediation, A Little Friendly Judicial Persuasion
by Steve Albert
Republished from THE RECORDER, No. 28, THURSDAY, FEBRUARY 11, 1993
The little chat Judge Beverly Bloch Savitt has with attorneys and their clients almost every morning is a frank one. The Marin County Superior Court judge reviews statistics that nearly all attorneys know, but not all of their clients may have heard, or at least not heard with the kind of emphasis Savitt displays.
About 98 percent of civil cases never go to trial, the judge says. You can talk settlement early or you can talk settlement late. But if you wait, she assures the parties, “You most certainly will spend a lot of money.”
As their clients listen, Savitt turns to the attorneys: “I am looking at summary judgment motions with a caustic eye. Are you looking out for your client’s interest or your bottom line?”
Then she adds matter of factly, “If you explain to your clients the chances of success in filing a summary judgment motion that a serious effort could cost between $10,000 and $60,000 your client may elect to go to Las Vegas where the chances of winning are just as good.”
Similar friendly advice is being dispensed down the corridor in the courtrooms of Marin’s other civil division judges, Gary Thomas and Richard Breiner.
All three judges conclude their talks by asking the parties and their attorneys if they have considered alternative dispute resolution. Almost all have and almost all tell the judges that they plan to take their disputes to either a mediator, arbitrator or evaluator. Since last July, when these hearttohearts started and a new court rule began requiring parties to consider ADR within 140 days of filing a complaint, fewer than five civil trials have gone forward in Marin County. Previously, the 2,700 or so civil cases filed per year generated about 30 trials.
There are other courts in the state that encourage ADR 11 superior courts in Los Angeles County, 15 in San Diego County, and the Contra Costa County Superior Court. But only Marin proposes the ADR option as uniformly or as early.
“Every case in Marin is expected to consider ADR,” says Sheila Purcell, the State Bar’s ADR program coordinator. “It’s a program to highlight.”
Some attorneys, however, complain that there seems to be more stick than carrot in the Marin program. The judges’ talks may intimidate parties into talking when they should be fighting, attorneys say, and the $200 an hour price of a mediator is just another added cost should a case ultimately end up in trial.
As one San Rafael lawyer said, “The judge can be emphatic and even nasty, but he can’t make us settle.”
But most do settle and Breiner, like Savitt, says the litigants are usually better off. “It’s economical,” Breiner says. “The goal is to save the litigants money and time.” If attorneys aren’t happy, he says, they haven’t stepped forward, so far.
Breiner, who is the civil court’s supervising judge, and County Clerk Howard Hanson say the newness of the program and the county’s lack of an automated system to track the ADR option make estimates on litigant and court savings difficult.
But the program seems to be a success. Savitt, whose clerk is closely tracking the judge’s cases, says that in the program’s first six months, 700 cases were assigned to her and about 25 percent settled. In the same period, Savitt says, she didn’t try a single case. She is now presiding over her first trial in eight months, and because the plaintiff was able to work out a settlement in mediation, only the cross complaints of two defendants have reached trial. Mediation, the judge says, helped cut trial time in the complex case from 30 or 40 days to 12 or 13.
Trials are down in Breiner’s court as well, while Thomas has presided over two complex trials that dispute resolution could not dispose of.
Under the Marin ADR program, plaintiffs in all civil cases are required to deliver to each defendant a copy of the court’s ADR policy and procedures with the serving of the complaint. Litigants are encouraged to seek early assistance from a broad listing of attorney and nonattorney mediators, arbitrators, neutral evaluators and special masters.
At a “status/ADR assessment conference” held 140 days after the filing of the complaint, attorneys and their clients who have not already stipulated to some form of ADR are required to meet with the judge. There the judges deliver their ADR message, ask for a decision on the use of ADR, and give parties who haven’t already picked an ADR facilitator seven days to agree on one otherwise the court will make an assignment.
The judges say about 99 percent of the parties, so far, have agreed to voluntary ADR. And says Breiner, “There have been only two cases where I have had to designate a mediator.” He adds that in about 75 percent of the cases, the parties and their attorneys have not been back to court.
Larkspur attorney Steven Rosenberg, who was on a Marin County Bar Association committee which first proposed the ADR program to the court two years ago, says the bar will try to assess the program in about a year. But Rosenberg says that in addition to the savings for litigants, there are good reasons why the ADR option should appeal to attorneys.
“Within a few years, litigators will be the happiest,” Rosenberg predicts. “The docket will loosen up and trial lawyers will be able to try the cases that need trying on the most important issues. That will make trial related work more enjoyable.”
For now, Rosenberg says, there is the matter of educating attorneys and their clients that the “I won’t flinch first” philosophy is not the only way to go. “When someone else suggests ADR, lawyers are pleased,” he says.
Rosenberg, who does mediation work, says the cost of a simple case can be cut by as much as 90 percent under ADR. A case can be settled in three or four hours of mediation at about the same cost as the taking of one deposition.
Still, the program isn’t painless. One problem associated with Marin’s program that has yet to be solved is the increased work for court clerks. Because the county’s automation vendor went bankrupt just as the program was beginning, computerization of the system has been delayed until this fall. And because the court switched from a master calendar to an individual calendar with the advent of the fast track and ADR programs, cases that once sat on shelves for months and required little attention now are moving faster and must be tracked by hand.
“The clerks have picked up tremendous work,” says Hanson, the county clerk.
But computerization, says Hanson, should eventually cure the problem.
Prospects are less rosy for court reporters, who are salaried but make extra income from the production of transcripts for appeals and expert witnesses.
“There’s a legitimate concern for reporters who have counted on the extra income,” Hanson says, “but those were costs borne by litigants, now saved by litigants.”