Last fall, the Los Angeles County Superior Court instituted a volunteer mediation panel. The program is designed to help the court better manage its immense caseload by having some of these cases resolved before trial. As part of the program, mediators agree to volunteer three hours of their time to conduct virtual mediations in cases assigned by the courts for mediation. The three hours of mediation plus the mediator’s preparation time are free.
When the parties attend in good faith with an earnest intention to settle the lawsuit, I am happy to assist. However, when mediation is used as simply another opportunity to bill more on the case without any intention of resolving it, I wish I could breach confidentiality and let the judge know what happened.
I had such a case last week. The plaintiff’s counsel came in requesting far more than her client was entitled to under the applicable statute. Nonetheless, the defendant agreed to pay the amount required by the statute. I advised the plaintiff’s counsel that the defendant was willing to cede to her primary statutory demand, noting that under another statute, her client was not entitled to more, as she had not complied with the statute’s requirements.
On the next round, the counsel ignored what I had just said and made a demand for much more than a trial judge /jury would award. After speaking with the defense, it countered with a little more.
When I presented this new offer to the plaintiff’s counsel, she stated that the parties were too far apart and would stop the negotiation, resuming a second round at a later point.
This case should have been settled. The defendant was there to do so. When Plaintiff’s counsel suddenly stopped the negotiation because the parties were too far apart, it rang hollow.
The truth was that it was all about the attorneys’ fees; the Plaintiff’s counsel had not billed enough and could not settle at this point. The plaintiff’s counsel had agreed to attend mediation (when the court inquired about it), not intending to make a good faith attempt to settle, but rather as a means to generate additional billing opportunities.
I wish I could breach confidentiality and tell the judge about the abuse of the court’s program.
What bothers me the most is the lack of respect that this counsel has shown for the court’s program, the people who run it and especially the mediators who take time out of their own lives, to volunteer their time and skills to help the courts with their heavy caseloads by resolving some of these matters.
No one likes being abused, misused, feeling used and taken advantage of!
…. Just something to think about.
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