Thursday, January 24, 2013

More changes coming to state courts

The grand unwelcome budget-cutting experiment in which California courts are currently engaged may result in the undoing of reforms courts have developed over the past several decades to better manage their caseloads. Ideas that both the federal and state systems now consider best practices, such as the individual calendar system and closer judicial involvement in pre-trial proceedings, are in danger of being thrown out. Case in point: the LA County Superior Court, the largest local court system in the country, is seeking to jettison case management conferences, one of the main tools the court has at its disposal to check in with the parties early in the case and help steer cases to resolution. The court is also planning a return to master calendars for some categories of civil cases. The only rationale for these changes is that this kind of individualized case management consumes a fair amount of judicial and administrative time. But scrapping case management conferences could leave the court with no contact with counsel unless there is motion practice--and the court is also trying to discourage motion practice! The danger is that these unsupervised cases will simply languish in the system and contribute to increasing backlogs.

The prevailing forecast in our state court system is therefore for greater delays and less judicial attention. If only the courts could figure out a cost-saving way to divert their caseloads to other forms of resolution. But wait! Wasn't mediation supposed to do that? Right now a fairly large proportion of the court's caseload is sent to mediation, which has a high success rate in resolving litigated disputes. These dispositions save court personnel time in reduced motion practice, settlement conferences, and trials.

With the courts in financial crisis, one might expect them to propose even greater use of outside ADR procedures. Ironically, however, the court's mandated budget-cutting will more likely lead to less ADR. That's because the proposed reduction in judicial supervision, as well as the planned elimination of the court's own administration of ADR panels, will create fewer opportunities to prod the parties into seeking mediation or other alternative dispute resolution procedures. Leaving the courts without an effective procedure to refer cases to ADR also raises questions about the court's ability to comply with Code of Civil Procedure sections (C.C.P. 1141.10 et seq. and C.C.P. 1775 et seq.) that mandate the referral of certain categories of cases to arbitration or mediation. The courts will need to design effective alternative procedures to accomplish the same result, and it is not clear that they have the resources to do so.

Prior posts in this series:

I.    Ten courthouses

II.   Court-annexed mediation not dead yet

III.  Free mediation revisited

IV.  New rules

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