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What Does the Loss of Court ADR Mean for Access to Justice?

Jennifer Shack, February 11th, 2013

In the past few years, we’ve seen court ADR programs being cut around the country as courts and legislatures balance their dwindling budgets. The latest rumors of closure come from California where, some blogs have reported, mediation programs will be cut across the board in Los Angeles County in June. While the stories out of California appear to be a little more complicated than first reported, the closures throughout the country, combined with cuts to other court services (as they would be in Los Angeles County), bring up two causes of concern: privatization of justice and access to justice. 

In Los Angeles County, the court has advised that courthouses will be closed, staffs reduced and services cut back. All of this makes it more difficult for litigants to access the services they need and will most likely extend the time it takes to resolve a case. Los Angeles County also has a mature mediation culture. Due to longstanding practice, lawyers and sophisticated parties are knowledgeable about and experienced with mediation. This may mean that those who could afford to would simply pay for a simpler, faster process. However, without the option of free court mediation, those who couldn’t afford private services might be relegated to a court system that is less accessible and less capable of assisting them. There would be, in essence, a two-tiered system, with one segment of the population having multiple options available to them and another having little choice. Those with limited means  wouldn’t have the opportunity to mediate, despite its great value to parties, and would also face delayed and reduced access to justice overall.

I remember a judge once saying that he didn’t like the idea of offering mediation to poor and low-income parties because he didn’t want to relegate them to “second-class justice.” This sentiment could now possibly be turned on its head. When court-related mediation programs are slashed, mediation is limited to those who can afford it. But when programs are slashed along with other court services, access to justice itself becomes problematic for any but those financially able to seek private means to resolve their issues.


5 Responses to “What Does the Loss of Court ADR Mean for Access to Justice?”

  1. Kent Lawrence says:

    Any comment on the “free” requirement/offer of LA courts of mediation undercutting the establishment of a vibrant mediation “industry” allowing low cost mediation by newer (and probably “not as good because not as experienced”) who could “get in the door” by offering their services more inexpensively? As Pogo said, “we have seen the enemy, they is us.”

  2. Jennifer Shack says:

    I know that mediators in LA have complained about the court’s free services undercutting their ability to be paid for mediating. The possible loss of the court program does present an opportunity for mediators in that respect, as outlined in one of the links in my post. I would hope that they use the opportunity to step up to the challenge of access for lower income litigants by offering free or minimal fee services for those who qualify.

    • As someone who is heavily involved in this issue, I can tell you there is hardly any resistance in LA County to mediators providing what some would call “true” pro bono services, that is free assistance to people who cannot afford representation, or whose cases are so small that they do not justify paying a mediator. What there is resistance to is a program of free mediation that went well beyond that. A lot of mediators, myself included, have complained about cases of a 5 figure and 6 figure value being sent to the random select panel for mediation, where both parties were able to pay counsel, and the only professional in the room not being paid was the mediator.

      A lot of mediators will not mourn the passing of that program. But we are reasonably confident that there will continue to be services available, perhaps but not necessarily only by less experienced mediators, who will still provide mediation services in small claims court, civil harassment, landlord tenant court, and other civil cases where pro bono services would be justified.

  3. Jennifer Shack says:

    Thanks for checking in, Joe. I’m glad that mediators are going to be stepping up in LA County and hope my comment didn’t imply you all wouldn’t. I’ll be checking out your blog in the future to keep tabs on efforts to take over for the court.

  4. […] might have read my previous post noting the threatened closure of Los Angeles County Superior Court’s ADR programs. It’s now […]

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