CDRC BOARD MEETING
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Call to Order. Attending 1/25: Don Fobian, Karen Smith, John Horn, Gary Weiner, Mike Powell, Jennifer Bullock, Candace Matson, Gerry Phillips, Paul Dubow, Steve Sauer, Brohne Lawhorne, Richard Chernick, Maury Zilber, Urs Laeuchli, Donne Brownsey, Steve Dinkin, Ron Rosenfeld, Tom Reese, Carl Ingwalson, Fred Glassman, Ivan Stevenson, Jim Madison. Absent: Peter Robinson, Mark Roy, Elizabeth Strickland. |
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Motion: Action: |
Richard Chernick: Accept October Minutes. 2nd the Motion: Steve Sauer. All in favor. Brohne Lawhorne updated the registration form to include language to automatically renew credit card debits. Renewal letter to members needs updated language to advise of automatic membership renewal. |
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Action: Motion: |
Treasurer’s Report/ Maury Zilber Have 3.5 months in reserve, need to increase membership. Board members need to pay dues. Report Approved: Gary Weiner 2nd the Motion: Karen Smith |
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Motion: Motion: |
Board Meetings / Paul Dubow Suggest experiment of having one day meeting in Try one day meeting in 2nd the Motion: Don Fobian. 9 in favor, 5 not in favor, 5 abstentions. Discussion ensued of which day to hold single day meeting. 8 in favor of Saturday, 7 in favor of Friday, 4 absentions. |
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Motion: Action: |
Training Standards / Paul Dubow Proposed alternatives of inviting trainers to post training programs on web site or not do anything. Suggestions presented to have only members allow programs on web site with disclaimer re. CDRC’s endorsement, or we filter programs, or offer guidelines rather than stringent rules. Should CDRC have training guidelines? 13 opposed, 2 in favor, 4 abstentions. Should CDRC promote training guidelines? 12 in favor, 4 opposed, 3 abstentions. CDRC invite submission of training guidelines or methodologies to post on web site as resource to members as examples of established and/or effective mediation courses: Richard Chernick. 2nd the Motion: Carl Ingwalson. 15 in favor, 2 opposed, 2 abstentions. Steve Dinkin to prepare mailing to members at large to solicit training. |
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Motion: |
Committee Assignments / Paul Dubow Eliminate legislative committee and replace with separate arbitration and mediation committees: Carl Ingwalson. 2nd the motion: Richard Chernick. All in favor. |
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Action: |
Senate Bill 1782 / Paul Dubow “Arbitration fairness act” to eliminate pre-dispute resolution agreements. CDRC opposes, proposed opt-out provision. Paul Dubow to submit letter to ABA DR Journal editor for publication. |
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Action: |
CCP 1775 / Gerry Phillips Proposed bill by Beverly Hills Bar for mediators in court-annexed mediations in Poll taken of who favors that parties not required to pay in limited jurisdiction, court ordered mediation: In favor: 15, Opposed: 3, Abstention: 1. Poll taken of who is in favor of mediators being paid in $25k to $50k cases, regardless of ability to pay, in court ordered mediation. All in favor. Poll taken of who is in favor of courts mandating mediation in cases of more than $50k: In favor: 3, Opposed 15, Abstentions: 1. CDRC to represent at stakeholders mediation, possibly Gerry Phillips and John Horn. |
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Legislation / Donne Brownsey AB644: CDRC opposed, bill dead. AB567: CDRC opposed, bill has been rewritten to exclude impact on ADR professionals SB389: Dead SB981: CDRC watching, 2 year bill, is under review. SB1120: CDRC watching. DRPA bill: Challenges include sponsor running for another office, changes in staff, and court budget decrease. |
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Annual Conference / Karen Smith To try to institutionalize name and bring in more topics. Suggested to sell space at conference binder, include substance abuse, elimination of bias, ethics as draw for attorneys. |
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Public Policy Report /Jim Madison Two requests for amicus briefs were rejected. We are awaiting the Supreme Court decision in Simmons v Ghaderi . |
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Motion: |
Adjournment Motion to adjourn: Karen Smith 2nd the Motion: Candace Matson. All in favor. |
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Minutes taken by Don Fobian. |
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Action: |
Orange A letter will be sent to the appropriate persons at the Orange County Superior Court, stating that the new qualifications for OCSC mediators that would exclude all non-attorneys is inconsistent with CDRC's policy which specifies that no professional license be incorporated to exclude mediators from practice. Ivan Stevenson will provide Jim Madison with the details and the deadlines and Jim will draft a letter for Paul Dubow to send. |
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Action: |
Membership Paul Dubow will draft a letter to send to prospective members and distribute it to all board members. Paul will also ask Amy Johnsgard to supply lists of members and former members to each board member, who will then send their own copy of the draft and/or make a call to increase membership. John Horn joined membership committee. |
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Action: |
Website Hits are increasing 2007 – 1202 per week, 174 per day 2006 – 1084 per week, 155 per day 2005 - 807 per week, 115 per day The length of the visit is decreasing, which may be attributable to the ease of its use since so much has been added recently. 90% of hits are from going directly to our site, 6% of the hits are through "Google", 4% are from other sources. Carl agreed to provide Beth with up-to-date summaries of cases to post on the website. Additional tasks to complete are a members-only section on the website, a directory with links for practitioners, list and post all amicus briefs, list all legislative bills we are involved with, list all members of task force committees. |
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Action: |
Collaborative Law Fred Glassman provided an overview of the proposed Uniform Collaborative Law Act, currently under consideration by a drafting committee of the National Conference of Commissioners on Uniform State Laws (”NCCUSL”)His article in California Family Monthly willbe posted on the website. Any board member wanting a hard copy of the article should contact Fred via email . He will also distribute to board members an ethics opinion on collaborative law issued by the American Bar Association and the next draft of the uniform act prepared by the NCCUSL drafting committee which is due out in late February. |
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AOC Jen Bullock indicated that the AOC working committee on DRPA fee revision will be sending out a report probably next month for comments and that there will be discussion groups around the state, with AOC staff attending. It was suggested that CDRC should sponsor or co-sponsor these discussions. |
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Respectfully submitted: Karen Smith, Secretary Next meeting: May 18 and 19, 2008 (Sacramento) 2008 Board Meeting Schedule: January 25, 26 - San Diego May 18, 19 – Sacramento July 18, 19 – San Jose October 24 – Annual Conference, Los Angeles October 25 – Los Angeles |
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CDRC BOARD MEETING
MAY 18 & 19, 2008
Attending: Don Fobian, John Blackman, Gary Weiner, Mark Roy, Brohne Lawhorne, Maury Zilber, Ron Rosenfeld, Beth Strickland, Paul Dubow, Ivan Stevenson, Jim Madison, Steve Sauer, John Horn, Tom Reese, Richard Chernick, Jennifer Bullock, Fred Glassman
Absent: Karen Smith, Peter Robinson, Candace Matson, Urs Lauechli, Steve Dinkin, Carl Ingwalson
Motion Richard Chernick, Accept January minutes
Second the motion: Steve Sauer. 14 in favor. 1 abstention.
Fred Glassman reported that the NCCUSL committee responsible for drafting the Uniform Collaborative Law Act will be submitting a new draft at the end of the month. It may apply to areas beyond family law.
Action Fred will report on developments at the next meeting
We will have about $18,000 in the checking account after current oustanding checks clear. This will carry us through August.
Motion Richard Chernick: Approve the report
Second the motion: Don Fobian. All in favor
This bill, sponsored by Assembly Member Jones, is designed to protect homeowners from abusive practices in connection with the issuance of certain types of mortgages. It contains a provision which will prohibit predispute arbitration agreements in these contracts. There was concern that this section of the bill was preempted by the Federal Arbitration Act and that the section of the bill which added Section 1281(b) to the California Arbitration Act was too broad.
Motion Richard Chernick: We oppose the bill unless amended to delete the references to arbitration in Section 2 of the bill because of the preemption issue and the reference to Section 1281(b) (Section 3 of the bill) because it is contrary to existing law and bad policy.
This bill, sponsored by Assembly Members Jones and
Motion Richard Chernick: We oppose the bill unless it is clarified to state that it does not constitute an implicit limitation on otherwise enforceable arbitration clauses and that the reference to Section 1281(b) be deleted. All in favor
The AOC reported that there had been a very limited response to the questionnaire that it send out DRPA issues. The inference was that a lack of response equated to the lack of a problem. Jen Bullock stated that the survey was sent to the wrong people. It should have been sent to DRPA recipients and not to county administrators. Brohne Lawhorne added that he had difficulty responding to the survey because it was flawed. In another development, Paul reported that Senator Perata had introduced SB 1407, designed to increase filing fees by $35 for the sole purpose of providing funds for the repair of court houses. Donne Brownsey has spoken to his staff about the need to apply some of the filing fee increase to DRPA. The staff seemed to be receptive.
Action Jen will call the AOC and request that it encourage the administrators to send the survey on to recipients. She will also attend the AOC meeting on May 29. With respect to SB 1407, we will watch developments.
Jim reported that we have been asked to support a petition to review the Court of Appeal decision in Duffens v Valenti, which appears to be contrary to the US Supreme Court’s decision in Buckeye. Time is short and there is already a good letter on file from Fred Hiestand of CJAC. But if review were granted, we might be of assistance. He also reviewed various proposals before the Conference of Delegates relative to dispute resolution. Comments are due on Friday and he is already preparing a comment from the State Bar ADR Committee.
Motion Richard Chernick: If review is granted in Duffens v Valenti, we should file an amicus brief supporting the petitioner.
Action In view of the short time frame for comment and the fact that Jim is preparing a comment from the State Bar ADR Committee, we will take no action on the Conference of Delegates proposals.
Information about committee chairs and committee members has been posted. Minutes prior to 2006 have been removed. History has been updated but we are still missing information for 2001, 2003, 2006, and 2007. We also need updated information for past presidents. She also proposed that the membership renewal form on the website contain a box for automatic renewal by virtue of the member’s credit card.
Motion Steve Sauer: We insert a box on the membership renewal form to allow for automatic renewal by means of a credit card.
Action Beth will contact presidents for the missing years to prepare and she will continue to attempt to track down past presidents for whom there is no information on the website. We also need to develop a system to take care of credit card expiration dates in those cases where the member agrees to automatic renewal.
Weiner
This organization has asked us to post a notice of a future Conference that it is holding on our website.
Action We will post the notice if there is at least one member of the organization who is a member of CDRC.
This was an idea proposed by Carl Ingwalson and Paul decided not to take it up today in view of Carl’s absence.
Action The board confirmed that the July 2008 will only be for one day as an experiment. The meeting will commence at
The AOC has issued a preliminary proposal for minimum training standards for mediators in court connected mediations. Individual state superior courts need not adopt these standards so long as they have some minimum standard. Thus, the proposal will only be a guideline for the courts and this proposal no doubt will be amended once comments are received.
Action Board members will send comments to Jim Madison who will then prepare a CDRC comment. Because comments are due on July 7, and the next board meeting is on July 18, his suggestions will be reviewed by the ExComm.
Attending: Don Fobian, John Blackman, Mark Roy, Brohne Lawhorne, Maury Zilber, Ron Rosenfeld, Beth Strickland, Paul Dubow, Ivan Stevenson, Jim Madison, Steve Sauer, John Horn, Tom Reese, Richard Chernick, Jennifer Bullock, Fred Glassman
Absent: Karen Smith, Peter Robinson, Candace Matson, Urs Lauechli, Steve Dinkin, Carl Ingwalson, Gary Weiner
Review of dates for next year:
Bay Area: October 16-17 (Annual Meeting)
Reviewed changes in Legislative Committees. Court funding issues. SB1407 –critical needs and construction bond funded by court fee increase of $35.
Two bills most concerned about: AB2359 and AB2947. Full discussion of the difficulties of these bills.
With respect to our concerns, he is interested in three issues:
Balance Billing
Mandatory Arbitration
DRPA
AB2947 –Assisted Living
Don’t want mandatory arbitration when entering a home. Why can’t you wait three days?
AB2359 – Sub prime lending crisis
Want liability of original lender to travel with the loan into the securities market. Now bill limited to high cost loans.
SB1177 DRPA fees. Competing demands for court building, interpreters, law libraries and DRPA re filing fees. Consumer attorneys do not want more than $35 increase.
Balance billing issue. Wants to resolve differences between providers and insurers by arbitration or other dispute resolution techniques.
Richard Chernick explained our problems. Courts have developed a body of case law re standards for unenforceability. Problem with the bills is the per se presumption that all pre-existing arbitration clauses are unenforceable irrespective of fairness. Changes in 1281 by adding (b) changes the balance of fairness and changes judicial precedent. In addition, Paul Dubow noted that the bills go beyond existing law because they make all legally unconscionable contracts unenforceable. But the courts have developed a two-pronged test to determine if an unconscionable provision in a contract is in fact unenforceable. Thus, a standard form agreement that is not negotiable is procedurally unconscionable, but it is enforceable so long as it is fair, e.g., not substantively unconscionable.
10:50 AM Nancy Peverini – Consumer Attorneys of
Only opposed to pre-dispute clauses in consumer contracts –believe they are inherently wrong and unfair.
Eng bill – residential care facilities. There is something similar in skilled nursing facilities. No regulation of residential care facilities –ripe for elder abuse. All it does is bar the execution of arbitration agreements prior to or on the date of admission.
Interested in finding solutions to small cases, i.e. under $100,000. May want mediation as an interim step. Have spot bill in to handle this.
Feels CDRC loses credibility as neutral when broadly object to consumer bills.
Standards for Qualifications for court appointed mediators for civil cases. Draft won’t guarantee that all mediators are top notch but better than nothing. It is just a recommended model –not a standard. They feel that the mediators are the face of a court that offers a court appointed mediation system. They looked at standards in present court programs in
They also discussed the complaint procedure proposal. Every court must have a complaint procedure –but the proposal sets up minimum structures for such procedures. Courts can set up their own but if don’t, then this is the default procedure. The proposal provides for a complaint coordinator who screens complaints and if the coordinator that the complaint must be addressed, then a committee investigates. The final determination is made by the presiding judge or his appointee. All language re evidentiary hearings has been removed. They believe that most complaints will be resolved informally. The only court where complaints have gone beyond the informal stage is
Adjourned
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CDRC BOARD MEETING
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Call to Order. Attending: Don Fobian, Karen Smith, Elizabeth Strickland, Gary Weiner, Candace Matson, Gerry Phillips, Paul Dubow, Maury Zilber, Donne Brownsey, Steve Dinkin, Ron Rosenfeld, Tom Reese, Carl Ingwalson, Fred Glassman, Ivan Stevenson, Jim Madison, Ruth Glick. Absent: Steve Sauer, Peter Robinson, Mike Powell, Mark Roy, Jennifer Bullock, John Horn, Richard Chernick, Urs Laeuchli, Brohne Lawhorne. |
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Motion: |
Gary Weiner: Accept January Minutes. 2nd the Motion: John Blackman. All in favor. |
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Action: Motion: |
Treasurer’s Report/ Candace Matson Have 2 months in reserve, need to increase membership. Candace to request Amy to send out invoices to board members. Report Approved: Maury Zillber 2nd the Motion: Karen Smith |
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Website Report / Elizabeth Strickland Waiting for history reports from several past presidents. Anticipating near completion by end of year. Paul Dubow suggested cleaning up old cases, |
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Action: |
Education Committee / Gary Weiner Other agencies, such as Judicial Council and Education Committee to make recommendations to Executive Committee at programs. Steve Dinkin, Gerry Phillips, Fred Glassman, Maury Zilber to assist. |
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Simmons v Ghaderi / Jim Madison Jim Madison and Ivan Stevenson reviewed recent oral arguments. |
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Campagnole v Enjoyable Pools / John Blackman First case that held court has authority to order parties (related, such as insurance carrier) to mediation and sanction for non-attendance. Discussion ensued to determine whether or not to write letter to the Supreme Court to request review. Jim Madison to draft with Ivan Stevenson. It was determined that the time to do so had passed. |
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Collaborative Law Act / Fred Glassman Update on AB3053 to amend Section 2013 of Family Code. Current drafts are being circulated to national organization (NCCUSL). |
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Marketing letter / Paul Dubow CDRC has 146 members representing 15,000 mediators. Paul Dubow sent out letter to friends encouraging membership. |
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Admission to Court Mediation Panel / Jim Madison The AOC sponsored several roundtables around the state about the proposed standards for admission to a court mediator panel. Heather Anderson will review all comments and submit to AOC working group for further discussion. |
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Action: |
Annual Conference / Karen Smith To be titled: 15th Annual CDRC Policy Conference”. Save the Date Cards going out beginning of August. Award winners and keynote speakers discussed. |
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Legislation / Donne Brownsey Legislature to meet August 3 to AB611 (CSLB Arbitrations): In Senate appropriation committee. CDRC Neutral. AB2220 (Health Care Service Plans): CDRC provided technical data. AB2359 (Loans): Dead. AB3053 (Collaborative law): Bill withdrawn from enrollment and send back to senate per Dave Jones. SB1177 (DRPA funding): CDRC vehicle to increase apportionment from civil fee filing to DRPA programs, seeking increase to $10 to $12. Judicial council convened to determine fee distribution; DRPA only program to be found deserving of potential increase. Civil court fees raised by $35, CDRC is seeking DRPA’s share, proposed at $5 per case. Hopefully will have result within few weeks. |
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Motion: |
Adjournment Motion to adjourn: Richard Chernick. 2nd the Motion: Elizabeth Strickland. All in favor. |
CDRC BOARD MEETING
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Call to Order. Attending: Paul Dubow, Maury Zilber, Karen Smith, Elizabeth Strickland, Gary Weiner, Candace Matson, Gerry Phillips, Steve Dinkin, Ron Rosenfeld, Tom Reese, Fred Glassman, Ivan Stevenson, Jim Madison, Brohne Lawhorne, Steve Sauer, Mark Roy Urs Laeuchli, Eric VanGiekel. Absent: Jennifer Bullock, John Horn, Richard Chernick, Don Fobian, Donne Brownsey, Carl Ingwalson, Peter Robinson. |
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Motion: Motion: |
Treasurer’s Report/ Candace Matson Have 2 months in reserve, need to increase membership. Candace to request Amy to send out invoices to board members. Motion to move reserve account into operating account. Maury Zillber 2nd the Motion: Steve Sauer. Motion to approve Treasurers report: Paul Dubow. 2nd the Motion: Steve Dinkin. |
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SCMA Conference / Karen Smith Need volunteers to manage the booths. Mike Powell, Steve Sauer, Mickey Katz and John Horn possibilities. |
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Meeting Schedule / Paul Dubow July 17: |
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Motion: Action: Action: |
Legislation / Jim Madison To submit amicus brief on Thottam v. Thottam case. 2nd the Motion: Ivan Stevenson Ivan to send out cite to board via e-mail. Jim Madison to submit amicus brief in support of Hayworth v Superior Court. 2nd the Motion: Mike Powell |
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Website Report / Elizabeth Strickland Waiting for history reports from several past presidents. Anticipating near completion by end of year. Paul Dubow suggested cleaning up old cases, |
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Education Report / Steve Dinkin & Gary Weiner |
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Action: Action: |
Membership / Paul Dubow Paul to send his letter to the board that he sent to his colleagues regarding membership. Motion to allow Karen Smith to discuss management of membership with Linda Cain: Gary Weiner. 2nd the Motion: Ivan Stevenson. Maury suggested members review past membership list for people they know and contact those people to renew. Brohne believes benefits of CDRC should be withheld to non-members, logistics for which are undecided. Mickey to e-mail list of membership ideas. Maury to appoint membership committee within Motion to delegate expansion and coordinating marketing committee and report at January meeting; Urs. 2nd the motion: Steve Sauer. |
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Annual Conference / Karen Smith Made approximately $11,000.00, about 75 attendees. Need to appoint a |
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Gary Weiner: Accept July Minutes. 2nd the Motion: Gerry Phillips. All in favor. |
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Motion: |
Adjournment Motion to adjourn: Karen Smith 2nd the Motion: Elizabeth Strickland. All in favor. |