By the end of this month, the ADR Department of the Los Angeles Superior Court will have closed its doors, officially, in virtually every courthouse in the county. In reality, the doors have been closed, effectively, since mid-March, when the ADR Department — a victim of state-imposed budget cuts — made its final referral. Many lament the demise of the nation’s largest court-annexed ADR Department, and with good reason: the ADR Department annually referred more than 5,000 civil cases to mediation, of which approximately 37% were fully resolved. The removal of those cases from the court’s pending docket undoubtedly helped ease court congestion.

Yet, others say “good riddance” to the ADR Department, and with equally good reason. Parties were, in effect, compelled by the court to engage in what is intended to be a voluntary and consensual process. Artificial “completion dates” were imposed by the court, often leaving the parties no choice but to mediate before they were fully prepared to do so, in order to be in compliance when they appeared for the Post-Mediation Status Conference. Failed mediations left indelible imprints on the parties’ memories and hardened their positions, making it more difficult to later resolve the dispute. Qualified mediators, volunteering their services for free or substantially reduced rates for the first three hours, were labeled ineffective without justification.

So what lies ahead? Ever the optimist, I tend to see the glass as half-full, not half-empty. Mediation is no longer simply an “alternative” form of dispute resolution; it has become, for most, the preferred form of dispute resolution. Liberated from compulsory mediation but facing the prospect of increasing court delays and uncertainty over the trial venue, attorneys on both sides understand that mediation remains an essential and indispensable piece of the litigation process, but one to be employed only at the right time and under the right circumstances. Having “skin in the game,” whether in the form of mediation fees or simply a greater commitment to the process, will invariably increase the likelihood of success.

Those with limited financial resources or claims of lesser economic value will have no difficulty finding qualified mediators to assist them. The Southern California Mediation Association will soon be launching its redesigned website, providing access to information about mediators willing to provide their services at no charge, or at reduced rates. Like me, other private mediators — and at least one ADR provider — have already implemented and begun publicizing their own reduced fee programs for smaller value cases.

Based upon my conversations with members of the bar, the one obstacle to be overcome may be the concern — unfounded, to be sure — that reaching out to the other side to propose mediation will be seen as a sign of weakness. Nothing is further from the truth. Handled properly, reaching out to the other side will actually be seen as a sign of strength.

For those who are accustomed to having the court “refer” the matter to mediation and may therefore be uncomfortable with the prospect of initiating a discussion with the other side about mediation, consider the following suggestions:

• Raise the subject with opposing counsel in your very first conversation, as early in the litigation process as possible. Let the other side know that you are committed to working together to resolve the dispute as efficiently and cost-effectively as possible. Propose a format for exchanging information voluntarily that will expedite the discovery process. Discuss a realistic timetable for submitting the dispute to mediation, while acknowledging that the timetable necessarily needs to be flexible.

• Offer to let the other side choose the mediator, subject only to your right to veto someone with whom you have had a negative experience. You’ll be surprised how much credibility you will gain with the other side — not to mention the mediator — just by relinquishing control over mediator selection.

• Engage in preliminary settlement discussions sufficiently in advance of the mediation that it can be postponed or canceled, if necessary. When reasonable opening demands and offers precede mediation, good-faith settlement negotiations may ensue, possibly leading to a settlement without need for the mediator’s services. Even when pre-mediation negotiations are unsuccessful, they often define the real parameters of the dispute and can serve to establish better rapport with opposing counsel, both of which will enhance the prospects for a successful mediation.

Alexander Graham Bell is quoted as having said “When one door closes, another opens; but we often look so long and so regretfully upon the closed door that we do not see the one which has opened for us.” The doors of the ADR Department may be closing, but there’s little doubt that other doors — arguably better doors — are about to open.

As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.

Best regards,

Floyd J. Siegal