Sunday, February 10, 2008

Mediation Costs: Supreme Court Candidate Baltasar Cruz has money-saving ideas

Attorney Baltasar Cruz is one of two Democratic contenders for Texas Supreme Court Seat 7, which is currently occupied by Republican Dale Wainwright who is up for re-election this year. Cruz appears to be practicing the low-budget gospel he preaches, campaigning on the web via a blogger account, rather than an expensive professional campaign web site with all bells, whistles, and flash. The Dallas Morning News recently wrote him off as a candidate because he did not take in enough money from campaign financiers (donors) to impress its editorial board. Excerpts of ADR relevant proposals from Candidate Cruz's blog are pasted below: Mediation should not be automatically ordered in cases in which the pleadings indicate that the amount in controversy is equal to or less than $5,000.00. (Mediation should not be compulsory in such cases because the mediation fees and attorneys' fees imposed by such orders constitute a burden which is disproportionate to the relief sought for litigants in such cases and parties should not be faced with the choice they are currently given in many courts of incurring the cost of preparing an objection to a mediation order and attending a hearing on their objection -- which might be overruled anyway -- or just going ahead and paying a mediator and their attorneys for conducting a mediation. Although mediation orders in such cases do coerce litigants to enter into settlements merely out of a desire to avoid escalating litigation costs, I do not believe it is the role of the Courts to impose litigation costs on parties that are so disproportionate to the relief sought as to coerce settlements. I think it is more important for a judge to reduce the costs of access to the courts than to impose expenses upon litigants which coerce them into settlements.) When mediation orders are entered in other cases (i.e., cases in which the amount in controversy exceeds $5,000.00) the orders should not designate a mediator nor a mediation deadline, unless the parties have agreed to same. Rather, all parties should be given an opportunity to agree upon a mediator and a mediation deadline in a rule 11 agreement to be filed with the Court or inform the Court if no agreement can be reached. Only then should trial courts be able to appoint a mediator and order a mediation deadline. (Since most experienced attorneys have mediators they prefer to use and file motions for substitution of the mediator when one is appointed by a trial court, this should also save judicial resources since a rule 11 agreement does not have to be reviewed or signed by a judge and the mediation deadline can then be extended by a subsequent rule 11 agreement between the parties without requiring another court order.) Comment: County-based dispute resolutions centers (DRCs) may provide a viable low-cost alternative in some cases and venues. Find terms: mediation in low value cases, mediation costs, fees, ADR on a shoestring budget