Retired Magistrate Judge Wayne Brazil was an innovative, dedicated and creative contributor to the growth of court-connected ADR in the 1990s up until his recent retirement.\u00a0 On June 3, he honored the New Jersey State Bar with a keynote speech at the annual New Jersey “ADR Day,” and his remarks were instructive and inspiring.<\/p>\n
Denying that he had “anything new to say to experienced mediators,”\u00a0Brazil instead posed the questions: What can mediators contribute to shaping the future?\u00a0 How does court-mandated mediation fit in our system of justice?\u00a0 Is it worth the expenditure of time, money and patience for able members of the bar to serve in court-mandated mediations?<\/p>\n
Judge Brazil admitted the challenges.\u00a0 Unpaid mediation\u00a0service is being criticized in Los Angeles and in New Jersey, for valid reasons.\u00a0 \u00a0Many state court programs tolerate poor mediator quality and\u00a0torpid party participation.\u00a0 He reminded the group that the “center of gravity” of the American justice system is in state courts in urban areas, the vast majority of whose cases involve modest claims.\u00a0 Eighteen million civil cases are filed\u00a0each year in state courts, and in California alone 60% of the civil cases filed involve less than $10,000.\u00a0<\/p>\n
These are tenant problems, debt collections, credit card disputes, most featuring at least one party who is unrepresented.\u00a0 These matters are of vital importance to the litigants but impossible for the state court systems to address meaningfully, or for the litigants to approach with confidence that practical justice will\u00a0result.<\/p>\n
Federal courts have an even more disturbing statistical profile, if the question is whether they provide value\u00a0to those who utilize them.\u00a0 Fewer than 2% of filed cases proceed to trial; 10% are dismissed on substantive motion; and 8% are dismissed on procedural grounds.\u00a0 That means that 80% of litigants filing federal cases get no value whatsoever from the court — unless they somehow get the opportunity to exchange information that leads to the settlement of the case.<\/p>\n
The transaction cost of litigation\u00a0is the predominant reason for judicial dysfunction.\u00a0 The costs of bringing suit are far disproportional to the damages being sought in almost every case.\u00a0 For the poor, even modest costs discourage maintaining a lawsuit.\u00a0 And the system’s response?\u00a0 Legal Aid is being cut, court resources are being reduced, and defaults are entered in most collections cases irrespective of the merits.<\/p>\n
In a system thus stricken, the role of the ADR practitioner is critical.\u00a0 For Brazil, the only way the judicial system can fulfill its social role with any modicum of public satisfaction is for public judicial institutions to create partnerships with private practitioners.\u00a0 The model is familiar:\u00a0 Enforcement of many statutes is entrusted to private plaintiffs’ bar.\u00a0 Validation of civil rights, consumer rights, or tenancy regulations is customarily obtained through private causes of action, not through enforecement by public officials.\u00a0<\/p>\n
The principled resolution of civil claims involving relatively small amounts relies upon the availability and willingness of trained members of the private bar to devote themselves to that task, and strengthening that partnership requires the provision of at least some services for free.\u00a0 For a capable attorney or mediator with a successful practice, it is not too much for the judicial system to\u00a0ask two or three instances a year of unbilled service.<\/p>\n
Judge Brazil said that the courts\u00a0must deliver better service to more people.\u00a0 That is the standard to which he suggests that court\u00a0ADR programs should be held.\u00a0 If court-mandated ADR\u00a0doesn’t benefit\u00a0the litigant users, then it shouldn’t be offered.\u00a0 And he was of the sound conviction that, in a properly designed and administered\u00a0program,\u00a0the benefits of mandated ADR far exceed its burdens to the litigants<\/em>.\u00a0<\/p>\n Perhaps, when it was first introduced, the rationale for court-annexed ADR was reduction of cost and delay.\u00a0 Brazil suggests that now its strongest justification is the improvement of the justice system itself.\u00a0 As a consequence of the application of ADR\u00a0processes to a broad category of civil cases,\u00a0litigants appear before the court more focused, and the issues are more defined.\u00a0 Through ADR, management tools are provided to\u00a0judges and to counsel.\u00a0 More options are provided to the public who seek assistance in solving their problems.\u00a0 Cases are less likely to get lost in an administrative morass.\u00a0 Better service is extended to more people.\u00a0 And more people who seek help, are helped.<\/p>\n Brazil ended with a touching personal testimony to the fruits of mediation from the point of view of the neutral.\u00a0 Everyone wants to feel connected\u00a0to society, he reminded us.\u00a0 No one likes to be ignored, or to exist unheard, or to perceive themselves disrespected or marginalized.\u00a0 The justice system is ill-equipped to respond to those needs, preoccupied as it is with passing judgment.\u00a0<\/p>\n By contrast, mediation presumes the legitimacy of everyone in the room.\u00a0 Respect is infused in the process itself.\u00a0 And one of the most useful indicia of respect in a mediation is the careful, patient and systematic thinking that the mediator engages in, and that she encourages in others.\u00a0<\/p>\n Accustomed to being shunted about, ignored, attacked, doubted in the courtroom, the litigant in mediation feels invited, listened to, respected, honored.\u00a0 The party in mediation feels like a human being.\u00a0 And so does the mediator.<\/p>\n","protected":false},"excerpt":{"rendered":" Magistrate Judge Wayne Brazil, now teaching at Berkeley, offers some perceptive observations on the role that civil mediation plays in our system of justice.<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[40,14,34],"tags":[39,33],"class_list":["post-860","post","type-post","status-publish","format-standard","hentry","category-courts","category-mediation","category-united-states","tag-courts","tag-public-policy"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/860","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=860"}],"version-history":[{"count":0,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/860\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=860"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=860"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=860"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}