Only lawyers need apply

While mediation continues to make its presence felt in the world of dispute resolution as the process of choice, competition between lawyer and non-lawyer mediators for the hearts and souls of disputants in conflict was just ramped up by the action of the Los Angeles County Superior Court. The court is considering a proposal for civil mediation services as part of the vendor resource list project, specifically excluding non-lawyer mediators.

In 1993, interested members of the State Bar, the California Dispute Resolution Council, and the alternative resolution community successfully joined with the superior court to bring to life Senate Bill 401. Among other things, that bill contemplated compensation to mediators on the court panel. However, payments were not made because of the court's budgetary problems, and the mediators became volunteers on a pro bono basis. There was no discrimination between lawyer and non-lawyer mediators so long as the neutral was qualified.

A party-pay mediation panel was formed by the court in 2004. While no distinction was made between lawyer and non-lawyer mediators, its members were more highly qualified than those on the volunteer panel. Among other requirements was completion of a minimum 25 mediations and agreement to prospectively participate in satisfactory completion of annual continuing education. Under this arrangement, parties to court-annexed mediations could select members from the panel, to be paid as much as $150 per hour by the disputants for the first three hours.

The program in Los Angeles was administered by an internal alternative dispute resolution department. In 2013, the superior court announced that a "devastating budget crisis" required that the program would be closed. That was the way it remained until now.

I remember when mediation was something new and either unfamiliar or not understood because it was too "touchy-feely" for resolution of disputes in the real world of the law. For me the year was 1991, when I was looking to get certified through training with the Los Angeles County Bar Association Dispute Resolution Services program. Even though I didn't see why I needed the training since I was a lawyer and arbitrator, literally after five minutes I understood why I had to attend. I needed to understand how to move disputants from the courtroom to the living room where they could come together outside the formality of the law. There were about 35 people enrolled and only two of us were lawyers, who were quickly put to shame by performances of ordinary citizens.

For several years, the touchy-feely label seemed to discourage lawyers from either utilizing the process or practicing it after appropriate training. At some point, lawyers who wanted to exit the law practice found mediation to be their ticket to flee the woes of the legal world, soon to be joined by retired judges seeking a career in retirement. The age of the California alternative dispute resolution field as a cottage industry then came fully into its own. Notwithstanding that many lawyers could not adapt to the facilitative approach, they insisted on continuing to act like attorneys, telling the parties what to do under the guise of "mediation."

The proposed program in Los Angeles would, among other things, require that only "highly-qualified attorney-mediators" be members of the preferred panel. This is a serious setback for mediation in California as the court turns its back on otherwise qualified mediators without this status who, with distinction, had largely supported the court program for so many years. In addition, the law and other graduate schools that have designed and offered quality special master's degrees in areas involving conflict resolution, producing some excellent mediators (lawyer and non-lawyer), may face long-term negative implications under the circumstances, depriving the public of the special talents and abilities of their graduates.

The Southern California Mediation Association has a large membership consisting of both lawyer and non-lawyer-mediators in close proportions. It has operated for many years providing quality service to individuals and communities in this state. Jason Harper, president of the association, has something to say about this development. He is a non-lawyer private mediator who also serves as a consultant providing dispute resolution services to 18 school districts and 28 charter schools focusing on special education disputes, and a mediation trainer who teaches mediation at a law school. In addition to the numerous mediation trainings in which he has participated, he holds a master's degree in negotiation, conflict resolution, and peacebuilding from CSU Dominguez Hills.

Harper says that "the requirements set by the LASC requiring 10 years of active state bar membership would exclude roughly 45 percent of the members of SCMA. These professional mediators are highly trained and qualified with an extensive history of success achieving resolutions in a multitude of areas including real estate, employment, personal injury, education, etc. In fact, it was these same professional mediators that helped provide great success to the LASC's prior ADR program. By instituting this requirement, the court is attempting to define a mediator as an attorney. It is the position of the SCMA that mediation is not merely a subset of the practice of law, but rather its own field with special training separate and apart from the practice of law. The Los Angeles Superior Court would do well to recognize the full amount of expertise in this area."

The "fly-in-the-ointment" here is the repeated attempts by lawyers over the years to somehow consider mediation as the practice of law. Acting as a private arbitrator is the practice of law, whereas the private practice of mediation is not. This is because mediation in the true sense does not include giving legal advice, counsel or passing on the legal effect of any law. The process is constructed around a negotiation between the disputing parties facilitated by a neutral third party who has no power to impose anything, including the outcome, on the participants. Therefore, attorneys engaged in the private practice of mediation may very well be in competition with lay practitioners of this art, because before donning the mediator's hat the lawyer must first remove the "legal cap."

This competition is a good thing for the public. Over the years, I have observed instances where non-lawyer mediators far surpass lawyer-mediators (including retired judges) in training, experience, practice and success in this field. In addition to Harper, some of the most successful practitioners of this art in our state are non-lawyers.

Several years ago, well-established lawyer-mediator Laurel Kaufer cut to the chase when memorializing the passing of lawyer-mediator Richard Millen, one of the early ground-breaking proponents of California mediation. She said Millen, "cautioned us that in our zeal to turn mediation into a profession with all the institutional trimmings, we [must] be careful not to remove the tree from its roots."

Because of the formal legislative and judicial recognition of mediation as a "new way to resolve old disputes, with lawyers as both consumers and practitioners," Kaufer emphasized Millen worried that mediation was "in imminent danger of becoming legalistic in form and substance, undermining the true nature of the process that started here in 1976 as an alternative to the legal and judicial systems."

Ever the advocate for non-lawyer mediation, Millen felt it was the obligation "of the future mediators to keep themselves and the user public focused on the facilitative, interactive and 'transcending' model that was the basis of early meditations, providing 'whole-brain solutions to half-brain problems.'"

What the new proposal does is the exact opposite of Millen's charge to the mediation community. Hopefully, the proposal will be reconsidered in this light.