Recently, several different organizations have brought to my attention, a resolution on mediator regulation entitled SR-05-01-2012 proposed by Bay Area Lawyers For Individual Freedom to the California Conference of Delegates. Jo Hoenninger, Esq. is its author. The proposed resolution, if passed by the California Conference of Delegates at California’s Annual State Bar Convention in October 2012, could find a legislative sponsor and conceivably become law. As it presents some very controversial issues, I bring it to everyone’s attention.
Barbara Brown, in her President’s message on the Southern California Mediation Association’s website, succinctly set out the main themes of the proposal:
1. “Mediator” is defined as “a neutral third-party who for compensation conducts mediation.” (Emphasis added.)
2. Standards of conduct and minimum qualifications for mediators would be up to the Judicial Council.
3. Procedures for enforcing the standards of conduct would also be up to the Judicial Council.
4. The State Bar would be responsible for certification and registration of mediators.
5. The State Bar Court would be responsible for mediator discipline and would be directed to “use the same procedures in adjudicating the fitness of a mediator to mediate as it does in adjudicating the fitness of an attorney to practice law.”
The proposal also mandates that every county in California (all 58 of them!) administer an ADR program, requiring mediation in all matters involving less than $250,000. The current limitation involves less than $50,000 in dispute, and the mandate to mediate applies only to Los Angeles County.
This proposal has drawn many comments. Many have opposed the proposal for a myriad of reasons, including that mandating mediation in all counties of the state overburdens the already greatly strained court administrators throughout the state. (Witness the bankruptcy filings of several California cities in recent months and the budget crises in the courts.) This mandate also contradicts certain case law to the extent that the proposal requires the parties to mediate and to pay for it. Jeld-Wen, Inc. v. Superior Court (2007) 146 Cal. App. 4th 536, 540-543 prohibits requiring a party to pay for a court ordered mediation.
With respect to the regulation of mediators, many have noted that the minimum qualification requirements severely limit the pool of available mediators for no sufficient reason. For example, one must have”… a legal degree or a graduate degree in a specialty such as engineering, construction, medicine, sociology or psychology which is directly applicable to the types of mediations conducted.” Further, the requirement that one must have mediated 20 cases as a solo mediator “in substantive areas of law (or in the case of non-legal-mediations, in the mediators
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