New Mediation Program, Same Ole Requirements

Another new mediation program, another program requiring the mediator to also be an attorney: Plaintiff and defense lawyers are trying to gauge the overall impact of a new state mandate requiring mediation in medical malpractice cases.

So far, the apparent consensus is the new law may take smaller cases off the litigation track, but won't resolve big-ticket cases that require the opinions of experts and extensive discovery.

The provision, which became effective July 1, calls for the presiding judge in the judicial district where a med-mal case is filed to refer the matter to a 120-day period of mediation or to another form of alternative dispute resolution "before the close of the pleadings."

The first mediation session is to be conducted by the presiding judge, or another designated judge, not more than 20 business days after the initial referral. At the end of the one mandatory session, if the judge and parties don't agree the matter can be settled, and don't agree to continued mediation, "mandatory mediation under this section shall end."

But if the one-session mandatory phase fails, the parties may agree to keep trying, and the statute next calls for the presiding judge to refer the case for mediation. The judge is to make a referral to a Connecticut lawyer with at least five years of membership in the state bar. Plaintiffs and defense parties split mediation costs.

Admittedly, I have done no research on this but after reading the following quote:

"For the last 10 or 15 years, there has been a program of court-annexed mediation, in which cases are referred to judges with extensive medical malpractice experience," said Jaffe, who specifically cited Superior Court Judges Anthony Robaina, Terrence Zemetis and Jonathan Silbert.

I wonder what formal mediation training the judges have?

Full article [here].

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Comment by John C. Turley on August 25, 2010 at 11:08pm: Recently, I spoke with a University of Detroit law professor and professional mediator about the mediation profession in the state of Michigan. He informed me that mediation cases are being referred to retired judges who in turn work with lawyers who practice mediation. The good old boy network is alive and well in Michigan

It would appear as if there were a closed market at play open only to the legal elite. This is actually not the case upon further reflection. These particular cases are well defined and do not require any creative effort to surface or to nurture. I speculate that these cases albeit note worthy represent a small percentage of the universe for mediation work. I further speculate that these cases represent probably less than 10% of the potential for mediation. By what authority do I say this? I am relying on my business experience in marketing and as a salesperson since there are parallels between the defined business and that which is available through demand creation and creative efforts. The defined business takes a particular route. For example, a specific mediation case becomes public knowledge that it will be assigned to former Judge John Smith who will refer the case after his referral fee to the Jones & Jones Law Firm, or the former judge may mediate the case. I did not hear the same level of creativity and resourcefulness from the U of D professor when compared to my CU experience. BTW, they are both Jesuit schools

There is still a wide open field for mediation outside of the court related referral network. It seems that the referrals are akin to requests for proposals that one encounters in the business world. Clients are interested in procuring a corporate service from let's say AT&T, Verizon, Sprint, etc. so they prepare a document with their requirements for a competitive bid. In some cases, there is no competitive bid at all, the business is awarded to one sole provider. This process is oftentimes favored because the client identifies their specific needs and the vendor responds according to the RFP specifications. Again, this is probably a very specific niche when the entire field of ADR is taken into account.

So, there are identified mediation cases that provide a steady flow of business for ex-judges and mediation lawyers. This situation does not impact the thousands of other cases that never go through this channel for resolution. For example, there are real estate cases that come via the NAR association that will never go via the aforementioned referral network. Again, further investigation is required;however, I foresee unlimited opportunities based on our education and resourcefulness and the changes in the field and the marketplace. I am extremely optimistic about our futures. My interview simply provides more information, a perspective and a reference point as I surge forward in the profession.

JCT