History of CDRC
A Brief History
of the
California Dispute Resolution Council
Introduction
CDRC has been promoting effective, accessible conflict resolution services statewide since March 1994. Supported almost entirely by membership dues, it has established a reputation for influential, principled advocacy aimed at supporting policy that is good for both consumers and providers of ADR services. CDRC has earned a seat at the table whenever significant conflict resolution policy issues are considered. Its leaders have worked hard to maintain excellent working relationships with legislators and their staffs, consumer and business organizations, community ADR providers and consumers, lawyers and non-lawyer practitioners, professional dispute resolution provider associations, and others around the State who are active in the policy process. We have truly become the policy voice of ADR in California.
1992-1993: Early Visions
Prior to 1992, emerging ADR practitioners discussed the need for a statewide organization for the dispute resolution field, generally after conferences and over cocktails. On August 10, 1992, a group of 15 met for an informal lunch during the annual conference of the American Bar Association (held that year in San Francisco) to discuss what might be done.
The group was unanimous that its purpose should not be to form a new organization; rather the group believed it should brainstorm future needs of the field and trying to persuade existing organizations to address them. Accordingly, the group decided to hold an invitation-only "retreat" to brainstorm and sift ideas. Early pioneers of ADR in California participated including Bob Barrett, Randy Lowry (director of the Institute for Dispute Resolution at PepperdineUniversity) and Ron Kelly. Other important figures in California ADR policy also participated in the founding discussion including Ramon Raugust and the late Don Weckstein of the University of San Diego.
The retreat was held November 13, 1992. Thirty-five people attended from all over the state, representing mostly mediation programs operating in a diversity of settings: court-connected, family, environmental and public policy, commercial, civil, and others. Brainstorming resulted in listing more than forty needs of the dispute resolution field, including the need for a "cohesive voice for legislation, including research about proposals, updating developments as they move through the legislation process, and education of legislators and staffs about the implications of different formulations of laws" and the need to keep practitioners informed of legislation that had the potential to impact their practices and programs. Needs of specific sectors of practice (public policy, community/court-related programs, and commercial) were also discussed.
The next meeting was held on February 5-6, 1993, in the Bay Area. Forty-two persons attended from such organizations as the American Arbitration Association, the California Judicial Council, the State Bar Association's staff on Consumer Affairs, the three local chapters of the Society of Professionals in Dispute Resolution, the Southern California Mediation Association, the Northern California Mediation Association, county bar associations, and a number of community-based mediation organizations. Discussions were grouped into six topics: legislation, education and marketing information, qualifications and ethics, institution-building, research and evaluation, and promoting diversity. In each area, attendees suggested specific plans and vehicles for addressing the needs identified. While each group was asked to suggest existing organizations that could implement the ideas, the notion emerged that some of the needs would require a statewide organization with a focused purpose and mission and the ability to act quickly.
The third meeting was held on June 18-19, 1993, at the University of San Diego School of Law and was hosted by Don Weckstein. At this meeting, attendees discussed the shape of a new organization, deciding on a name (the California Dispute Resolution Council) and a mission statement. There was still some hope expressed that existing organizations could solve the problem. The group decided to form a task force to focus on developing principles and a mechanism for responding to legislative proposals. Other task forces were set up to develop ways of increasing consumer awareness about mediation, addressing qualifications and ethics concerns, increasing evaluation and research efforts, and promoting diversity in the dispute resolution field.
By the fourth meeting, held in Southern California on November 12, 1993, it had become clear that a new statewide organization would be needed to undertake the legislative advocacy that no organization(s) could hope to do successfully. Legislative monitoring would require a day-to-day presence in Sacramento. In addition an organization was necessary to act quickly and draw ideas and views from a broad cross-section of the dispute resolution field in the state.
Key principles emerged: that the new organization would be inclusive, reaching out to all providers of dispute resolution services in all parts of the state; that the organization would concern itself with arbitration as well as mediation and other forms of ADR; and that it would attempt to promote the interests of consumers as well as providers of dispute resolution services.
Among the task forces working on developing specific action plans, the most energy centered on concerns about legislation, as the legislation task force had begun to track bills with important implications for practice in the state. Several bills required close attention, focusing on mandatory mediation (SB 401) and proposing to set standards for these programs, encouraging mediation directed at reducing racial and ethnic tensions, and increasing funding for community mediation programs.
1994: Organizing, Electing Leaders, and Seeking Members
The fifth meeting occurred on March 20, 1994, in Sacramento. CDRC's articles of incorporation had already been filed, and the bylaws drafted by Ramon Raugust were approved. The group elected board members and officers and began planning how to implement a membership program. Bob Barrett was elected as the first president. In response to Ron Kelly's suggestion, the group also adopted five brief "Consensus Points" to guide its lobbying:
1. Definition. The mediation process should be clearly defined in substantially the form that follows: "Mediation" means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.
2. Funding. Mediation should be available to all parties in all types of cases, regardless of the parties' ability to pay.
3. Education. The courts, public agencies, and dispute resolution providers should share responsibility for furnishing information to the public, the bar, judges, court and government personnel, and others concerning dispute resolution processes, the availability of programs, the differences among various processes, the possibility of savings in cost and time, and the consequences of participation in such processes.
4. Declarations and Findings. No mediator should be required to submit, and no court should consider, any declaration or finding of any kind by a mediator regarding a case, beyond a required statement of agreement or non-agreement, unless all parties in the mediation expressly agree in writing.
5. Qualifications for Dispute Resolution Providers. Qualification criteria should be based on training, experience, and performance, not on the attainment of any particular academic degree or professional license.
The board's first meeting was held in May, 1994. The goal of having 400 members by the end of the year was set. The board also established committees to track legislation and a process for considering and responding quickly to legislative developments. Plans were also made for a strategic planning retreat in September and to continue the work of the qualifications and ethics task force to develop a more comprehensive statement of principles.
In June and July, membership solicitations were sent out to all who had been involved in the earlier retreats. By the end of July, CDRC had more than 120 individual and organizational members. Its legislative committee had begun to track 12 bills, dealing with both mediation and arbitration. The board decided to support two, one encouraging the use of mediation in land use cases, which passed and was signed by the governor, and the other to enlarge funding for community mediation programs, which was passed, but vetoed by the governor. Three bills setting up a confusing array of disclosure requirements for arbitrators passed before CDRC was able to comment on them.
On September 11-12, 1994, the CDRC board held a strategic planning retreat in San Diego. The board set as a goal that CDRC should become the primary contact for legislators on dispute resolution topics. The board hoped that CDRC would be routinely consulted by legislative staff and others around the state on policy topics. The budget (totaling $13,000) was approved. Plans were made for regular contact with members through a quarterly newsletter, a clearinghouse of information, and regular dialogue meetings with members. The board also clarified procedures and policies regarding who could speak for the organization: only the president or the president's designee.
The first annual meeting was held on November 18, 1994, at which the CDRC board distributed its first Newsletter, reporting on legislative developments and plans for the new legislative year. The board consisted of 22 leaders in the dispute resolution community from all parts of the state and a diverse range of practice sectors. The board was also diverse in gender, racial, and ethnic terms. At the November meeting the board clarified the procedures for studying and rapidly coming to positions on bills, either by vote of the full board or the executive committee. The year ended with about 200 active members and plans for implementing the vision that had been developed back in September.
1995: Establishing Procedures and Hiring a Lobbyist
Lauren Burton, then Executive Director of the Los Angeles County Bar Association Dispute Resolution Services, began her term as president on January 1, 1995. The first order of business was the hiring of a lobbyist for the organization. Fortunately, an excellent candidate was available, Donne Brownsey, who was just beginning a new lobbying firm and looking for "anchor" clients. She was an experienced legislative staffer with excellent relationships with members on both sides of the aisle. It was also important that she had taken mediation training, which helped assure that she knew and shared the values underlying the practice of mediation and arbitration. She was an outstanding choice, and the relationship continues with a contract that is renewed annually by mutual agreement.
Announcing that a "BillTsunamiHitsADRShores," CDRC's March 1995 Newsletter reported on the 74 measures that mentioned the words "mediation" or "arbitration." The Legislative Committee prepared to review each bill and analyze the implications for the dispute resolution field, tracking closely those measures of importance to the field.
Among the bills were arbitration measures extending judicial immunity for arbitrators and defining the scope of appeal of arbitration awards. Dennis Sharp, a vice president of the American Arbitration Association, chaired the Arbitration Legislation Committee. He and Jim Madison, a well-known arbitrator from San Mateo County, developed language for a bill that CDRC could sponsor to "clean up" the arbitrator disclosure legislation that had been passed the year before.
Also included among the flood of bills were proposals to establish a mandatory mediation program for selected counties and to create a voluntary credentialing program for the state modeled on the program developed and used by the San DiegoMediationCenter. That proposal raised many concerns among some in the dispute resolution field and virtually ensured a high profile for legislative activity for the year.
On March 21, 1995, CDRC celebrated its one-year anniversary and Mediation Week with a legislative luncheon in Sacramento. Highlighting the luncheon were presentations by Assemblyman Bill Morrow and legislative staffers.
The CDRC "Consensus Points" were expanded by the Committee on Qualifications and Standards into a comprehensive listing of CDRC Principles on topics expected to come up sooner or later in the legislature. Don Weckstein chaired the committee. The resulting principles reflected points made in extensive discussions among the board members and the annual membership meeting the prior November. These principles poised CDRC to react rapidly when new legislative proposals came to its attention, and firmly established CDRC as a "principle driven" organization.
Recognizing the need for sustained attention to the credentialing bill, Lauren Burton appointed a special committee to review it, chaired by Bob Barrett. The committee held meetings around the state--sometimes scheduled simultaneously so they could be connected by conference call--and prepared detailed recommendations for the CDRC board regarding the measure. Because of the controversy surrounding the bill, it was set for more extended consideration as a "two-year" proposal. Public hearings around the state were scheduled for the fall by the author of the bill, Senator Newton Russell, who was also a trained mediator. It was important to CDRC that its approach to the proposed legislation would be seen as deliberative and principled, so CDRC took every opportunity to engage in informal dialogues on this complicated proposal.
During the year the Newsletter was expanded and greatly improved in format and content. The editor was Sheila Purcell, the State Bar Association's dispute resolution program developer and resource person.
CDRC also, for the first time weighed in on a case, Engalla v. Permanente Medical Group, Inc. (1995) 43 Cal.Rptr.2d 621. CDRC requested review by the California Supreme Court of the appellate decision that had approved a one-sided, but mandatory and binding arbitration system in the health care field. The Supreme Court granted review and reversed the decision in Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951.
1996: Enhancing CDRC's Reputation and Building Capacity
Ken Bryant, a commercial mediator and arbitrator from San Jose, took over as president in 1996. Membership had grown to nearly 500, and the budget had risen to $46,000, most of which was used to retain Donne Brownsey.
The most pressing legislative challenges included the review of more than 85 bills mentioning mediation or arbitration and the development of positions on the three bills introduced by Senator Russell in 1995 and held over as "two-year" bills. The three bills proposed a voluntary mediator certification program, suggested a requirement that attorneys advise clients about ADR in all civil litigations, and required judges to hold early status conferences in all civil cases to consider mediation. Senator Russell wanted to promote greater use of dispute resolution, but many concerns had been identified with specific provisions of the bills. CDRC carefully studied each proposal and sought extensive input from its members, especially on the certification bill. Positions were prepared in order to describe the implications of the bills at legislative hearings. In the end, none of the three bills passed.
CDRC, however, was successful in sponsoring its first bill seeking to increase funding for mediation programs under the Dispute Resolution Programs Act. Lauren Burton drafted the bill's language, working closely with Los AngelesCounty's legislative staff, and it was introduced by Assemblyman Antonio Villaraigosa of Los Angeles. With extensive efforts by Donne Brownsey and DRPA-supported organizations throughout the state, the bill passed and was signed by the Governor.
Inspired by Dennis Sharp, president-elect, CDRC also began its first annual statewide dialogue programs, held during March in four locations: Sacramento, Los Angeles, Anaheim, and San Diego. More than 300 dispute resolution practitioners participated, with lively facilitated discussions on such issues as mediator certification, court-referred mediation, arbitrator immunity, arbitration vacatur grounds, DRPA funding, lawyer obligations to clients concerning advising about ADR, and arbitrator disclosure requirements.
1997: Expanding Membership and Developing Infrastructure
Dennis Sharp became president in 1997 and devoted much attention to building the membership of CDRC and improving CDRC's administrative capacity. Membership grew to 600 individual members and 150 organizational members. The budget increased again, to $60,000 and special contributions were also received to supplement membership dues revenues.
A key benefit of membership was the publication of CDRC's first Directory, which also included a copy of the CDRC Principles and a list of committee rosters and CDRC accomplishments.
One decision of this period was to establish a related organization that could conduct research and other educational activities, later named the California Dispute Resolution Institute (“CDRI”). It was organized under section 501(c)(3) of the Internal Revenue Code and secured its tax-exempt status in 1997.
Also during 1997, CDRC became very involved in two key legislative projects. The first involved the efforts of the California Law Revision Commission to modify and clarify the law applying to mediator confidentiality in the state. Ron Kelly, on behalf of CDRC, closely followed the development of this comprehensive new statute, which successfully codified strong protections for confidentiality of the mediation process, explicitly protecting mediators from compelled disclosure of mediation communications, the substance of mediation participation or efforts to set up a mediation in later civil litigation. CDRC played an active role in commenting on the specific legislative language that evolved. The second key proposal concerned arbitrator disclosures and CDRC successfully sponsored an arbitrator disclosure cleanup legislation.
Finally, in the wake of the defeat of mediator certification in 1996, CDRC began an effort to develop a comprehensive set of standards that could govern mediation practice and that would be a model for courts, counties, and mediation programs to adopt. It was believed that the "model standards" approach would be preferable to legislation that would be difficult to enact and even more difficult to amend or modify as needed in later years. Lee Jay Berman, a Los Angeles mediator, chaired a special committee to prepare a draft set of standards. The committee's drafts were widely circulated within the state and improved through such consultation, and attracted a substantial list of endorsers.
1998: Lobbying Effectively and Looking Beyond Legislation
In 1998 Norm Brand, an arbitrator and mediator from San Francisco, began his term as president. Patricia Brown, Executive Director of the PeninsulaConflictResolutionCenter in San MateoCounty, and Ellen Miller, ADR Program Developer at the State Bar, led a Strategic Planning Committee to maintain and expand CDRC’s statewide presence and influence.
A prominent legislative concern was whether disclosure requirements for mediators should be similar to those enacted earlier for arbitrators. CDRC representatives met several times during the fall of 1998 with the staff of the Assembly Judiciary Committee to discuss this complicated area. No proposed legislation emerged from these discussions, due in part to the success of CDRC in articulating the difficulty of crafting appropriate language.
The most important development during the year was the California Supreme Court's decision in Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, holding that representation of a party in arbitration constituted the practice of law. CDRC advocated the standard of the international arbitration statute, permitting representation of a party in arbitration by anyone that party chooses. Despite those efforts, Birbrower remains the California rule.
CDRC succeeded in producing a widely endorsed draft of Standards of Practice for California Mediators, which were circulated for use by courts, counties, and mediation programs. They have since been adopted by two programs, have served as a model for several more programs, and are under consideration for adoption in many more locations throughout the state.
1999: Increasing Administrative Support
Liz O'Brien, executive director of the San DiegoMediationCenter, became president of CDRC in 1999. One of the key issues during the year was the emergence of a series of proposed drafts of a Uniform Mediation Act being produced by committees of the American Bar Association and the National Conference of Commissioners on Uniform State Laws. Since the early drafts included language that, if enacted in California, would weaken the protections for mediation confidentiality, CDRC requested its public policy committee, chaired by John Seitman, an arbitrator and mediator from San Diego and formerly president of the state bar, to study the draft and prepare formal comments on it. Several CDRC representatives also met with the ABA/NCCUSL drafting committees in December in Monterey, during dialogue sessions permitting extensive and informal discussion regarding key provisions of the evolving draft.
Well-attended dialogue sessions were held in May to focus on the Uniform Mediation Act draft. On October 15, 1999, CDRC collaborated with CDRI in the annual conference in the San Francisco area featuring discussions about where mediation and arbitration were going, dispute resolution research needs, and the Judicial Council's Task Force report on ADR and its implications for the courts, litigants, and the public. The conference also highlighted legislative developments, and sought membership input on priorities for attention in the upcoming year.
Principal legislative action focused on efforts to ban pre-dispute arbitration clauses in employment and insurance contracts, and in connection with contracts for medical care or treatment. The 1999 version of the bill was dropped after several amendments stripped the bill of its application to insurance, consumer, and health-care contracts.
Organizationally CDRC's membership leveled off, with the perception that the legislative activity was not as urgent as it had been in the past. The board began to address longer-term needs for more administrative help and the necessity of communicating regularly with members and emphasizing membership retention.
2000: Enhancing Influence and Visibility
John Seitman became president of CDRC in January 2000. Priorities during the year included attempts to stabilize and increase membership so as to increase the breadth and influence of CDRC's voice and to review the possibility of hiring of an executive director and staff to handle administrative needs.
In July CDRI and CDRC launched a project focusing on compensation of neutrals in court-connected, agency-operated, and community-based programs. This project was meant to include the collection of survey information concerning the such programs’ functions and their key features. The collaboration meant to host a series of dialogues around the state to allow participants to discuss what principles should govern and whether, and under what circumstances, neutrals should be paid for their work.
2001: A Challenging Year
If ever the CDRC had to face a challenging year, it was 2001 with Jim Madison as president.
The year began with the resignation of San Diego’s Ruth Campbell, who had served the CDRC as its part-time administrator ever since the organization was formed, and with the need to recruit a replacement. After searching both South and North, the CDRC located Maureen Newman, who was willing and able to take on the engagement in addition to her employment with Golden GateUniversityLawSchool. However, the gap in administrative staffing and the time and energy required to shift the locus of operations from San Diego to San Francisco affected membership renewals adversely.
A further challenge erupted when a panel of arbitrators chaired by retired California Supreme Court Chief Justice Malcolm Lucas rendered an award requiring the State to pay $88.5 million to lawyers in a fee dispute. The Governor’s thinking that the award was excessive plus a receptive Legislature led to passage of Senate Bill 475. In its original form, this measure would have micro-managed arbitrator disclosures and disqualifications and vacatur of awards. Thanks in part to the efforts of the CDRC, the final form of the bill deferred establishment of arbitrator ethics standards, including disclosure requirements, to the Judicial Council.
The Judicial Council was mandated by the bill to act under a tight time schedule between when the bill was signed at the outset of October 2001 and July 1, 2002, when the standards it adopted were required to become effective. The schedule was squeezed even more by the fact that, for the Standards to become effective on July 1, they had to be approved by the Judicial Council at its April meeting. To assist in its drafting task, the Judicial Council appointed an Advisory Committee of Experts in Judicial Ethics. Four CDRC members, including past-president Ken Bryant, Richard Chernick, John Kagel and President Jim Madison were appointed to this Committee and served effectively in minimizing the adverse effects of the Standards on the arbitral process.
On the mediation front, the CDRC and the then-existing California Dispute Research Institute co-sponsored a series of public dialogues in March at which members and other interested individuals could discuss the circumstances under which mediators should be paid and when they should serve pro bono.
The most satisfying development of the year for the CDRC was the California Supreme Court’s July decision in Foxgate Homeowners Association, Inc. v. Bramalea California, Inc., 26 Cal. 4th 1 (2001), in which the Court held that the Legislature did not leave California’s mediation confidentiality statute open to the creation of judicial exceptions. The CDRC had filed an amicus curiae brief authored by Madison and Michael Carbone in support of what turned out to be the Court’s decision. The prevailing party was represented by Ivan Stevenson, who joined the CDRC, became increasingly active as a mediator and was later elected to the CDRC board.
The efforts of the CDRC to influence the form of the proposed Uniform Mediation Act, which had been spearheaded by founding member Ron Kelly and 2000 president John Seitman, concluded in August 2001, when the National Conference of Commissioners on Uniform State Laws approved the Uniform Act.
Ruth Glick was elected president for 2002 at the well-attended annual ADR Conference at the Foster City Holiday Inn in November. This conference featured a keynote address by United States District Court Magistrate Judge Wayne Brazil, in which, among other matters, he spoke of the need for “courts to refrain from imposing role-distorting pressures on ADR neutrals.” In particular, Judge Brazil appeared concerned lest mediations become nothing more than settlement conferences.
2002: The Year of Reform and Regulation
2002 was a in which new rules for neutrals and providers took root. President Ruth Glick, Donne Brownsey and the entire board worked persistently and relentlessly to make sure new regulation would be reasonable and workable for ADR professionals.
The legislative agenda for ADR reform in 2002 was thrust in the public eye with a three part investigative report in the San Francisco Chronicle in the fall of 2001 about the failures of private arbitration. Soon a Blue Ribbon Panel was appointed by the Chief Justice Ronald George to assist in drafting new ethical standards. CDRC members Jim Madison, Ken Bryant and Richard Chernick were part of the Blue Ribbon Panel and added their sage advice and assistance to the drafting process. Their strong but minority voices sought to shape the rules to insure compliance by ADR professionals. Ruth Glick wrote two lengthy letters on behalf of CDRC warning of untended consequences of the developing standards and explaining how to make them more practicable and useful to the arbitration community.
The Ethical Standards for Neutral Arbitrators in Contractual Arbitration were incorporated into California Code of Civil Procedure on July 1, 2002. For the first time anywhere in the nation, in any state, arbitration providers, community non-profits and private arbitration companies became subject to extensive disclosure requirements and prohibitions. Moreover, arbitrators themselves became subject to the most rigorous and technical disclosure requirements trumping already existing federal and state requirements. Ethical goals were now written into rules, and failure to follow them would result in vacature of an arbitration award and possible retaliation against the arbitrator and provider. As warned, this has happened since the implementation of these Ethics Standards.
Meanwhile in Sacramento, Donne Brownsey and Ruth Glick worked hard communicating to legislators and their staff not to create an inordinate amount of new reform legislation that would be so unreasonable that providers would discontinue providing arbitration services in California. Some initial legislative drafts were extraordinary in their lack of understanding. For example, one piece of legislation sought to treat arbitrators who served in more than five consumer arbitrations a year as arbitration providers themselves, thereby requiring quarterly global reports. CDRC was able to discourage its passage.
Of six new arbitration bills passed by the Legislature, the Governor signed five into law. CDRC actively worked with the legislature and the Governor’s office to make the bills reasonable for compliance. Taking notice of the potential for unintended consequences pointed out by CDRC, the Governor vetoed AB 3029, the sixth bill which would have caused significant problems in its application.
During the same year the Judicial Council also developed the Rules of Conduct for Mediators in Court-Connected Mediation Programs in Civil Cases, rules which were not as controversial as the arbitration ethics standards. CDRC members Ellen Miller, Mickey Katz, Lee Jay Berman and others carefully crafted comments to these new rules.
For the first time in 2002, CDRC was able to implement mass emails to members. This allowed for timely communication in a cost efficient manner. In addition, the electronic newsletter made its first appearance that year, courtesy of Dick Bayer.
The annual conference was held at LoyolaLawSchool with well over 100 people attending. Blue Ribbon Panel Chair, Dean Jay Folberg and State Senator Sheila Kuehl were part of exciting lineup of speakers.
CDRC also weighed in on an extraordinarily important appellate court decision, Rojas v. Los Angeles County Superior Court (2002) 126 Cal.Rptr.2d 97. Because the case had significant implications for mediation confidentiality, CDRC submitted a letter requesting the Court de-publish the case, or in the alternative, review the ruling (see 2004 for a review of the Supreme Court’s decision in Rojas and CDRC’s position.)
Members’ enthusiasm and level of interest was extraordinarily high in 2002, finding twenty members running for eight Board of Director seats. 2002 was a very important year for CDRC’s role in shaping ADR in California.
2004: A Year of Transition
As Tom Reese became President in 2004, CDRC was closely and intensively working with the CDRI to produce a computation and analysis of consumer arbitration cases from CCP 1281.96 required data of six large arbitration services providers. John Blackman and Nancy Warren worked closely with Bob Barrett and CDRI – by then a part of the LeoMcCarthyCenter at USF – to complete and publish the survey.
Organizational change occurred, including the seamless transition of administrative support from Maureen Newman in San Francisco to Amy Johnsgard in La Jolla. The website, under the control of the very able Elizabeth Strickland, become current, complete, credit card accessible and full of CDRC happenings. E & O insurance for neutrals became available to CDRC members through Complete Equity Markets. The annual CDRC conference (November 2004) was planned and accomplished by CDRC alone rather than by CDRI as before. CDRI and CDRC mutually decided to become independent of each other.
Rojas v. Superior Court (2004) 33 Cal.4th 407was decided by the California Supreme Court with the aid of the Amicus Curiae brief prepared by the Public Policy Committee of the CDRC, under Jim Madison urging the position eventually taken by the Court.
CDRC sponsored 11 Dialogues with local Bar Associations, the Mediation Society, and other ADR interest organizations throughout the State to flush out what mediation users were experiencing from mediation providers. This was in response to the growing discussion about further regulating, and possibly credentialing, mediators.
CDRC focused on community mediation in California. Donne Brownsey, CDRC’s legislative analyst, worked closely with the Judicial Council and the Court Fees Working Group to protect the portion of the court filing fee that was directed to community programs through the Dispute Resolution Programs Act. CDRC also sponsored and assisted in the creation of the California Coalition for Community Mediation (CCCM) with special membership fees, meetings to be held in conjunction with and as part of CDRC’s Annual Conference, the ability of community practitioners (and others) to obtain E &O insurance and representation in Sacramento through CDRC.
CDRC also initiated the annual MCLE presentation at the State Bar Conference on “ADR Happenings in 2004” featuring a panel of current officers of CDRC.
The year ended with a celebratory Tenth Anniversary Gala at the LA Athletic Club honoring founding Board members, the LA Bar Association’s Dispute Resolution Service, San Mateo’s PCRC, San Diego’s NCRC, the Contractor’s State Licensing Board and Richard Chernick for the standards of excellence they have set in the provision of neutral services. Dick Bayer, Don Fobian, Amy Johnsgard and Gerald Phillips were responsible for this highly successful and nationally remarkable occasion.
2005: Working the Edges
Dick Bayer became President in 2005 and oversaw a year of transition in partnering relationships. CDRC took responsibility for the annual conference, marking the end of its partnership with CDRI and marking the beginning of its expanded collaboration with the many other ADR member organizations in the State.
The Board elected at the annual meeting was the first board with policy level members from the most important sectors of the California ADR landscape including representation from JAMS, AAA, NAF, the Straus Institute at Pepperdine, court connected programs and community programs as well as independent mediators and arbitrators. CDRC strengthened its alliance with the newly created California Coalition for Community Mediation.
In Sacramento, CDRC sponsored legislation to delete the sunset provisions of Code of Civil Procedure §1282.4, allowing parties in arbitration to be represented by out-of-state counsel. CDRC also worked with the Law Revision Commission on its proposal for a State Ombudsperson for Home Owner Associations in California.
In the courts, CDRC filed an amicus brief arguing strongly for arbitral immunity for both the arbitrator and his sponsoring organization in a case involving damage claims against the arbitrator based on the claimed non-disclosure of involvement in a case more than twenty years old. That case settled in April.
Once the Rojas decision was announced in December, 2004, articles appeared within the next week authored by various trial attorneys around the state criticizing the ruling. There were calls for the Consumer Attorneys of California to draft legislation to overturn Rojas and weaken the confidentiality statute. CDRC met with the CAOC to ensure that no such legislative action would be forthcoming in 2005 and none was. CDRC committed to work alongside CAOC to address confidentiality concerns as well as cooperate with CAOC on access to justice issues.
The State Bar of California introduced a seemingly benign proposal that all attorneys performing ADR services must maintain "active" status with the State Bar, even if they no longer practice law. CDRC argued that this would unwittingly help establish that acting as a third party neutral in mediation and arbitration constitutes the "practice of law." CDRC filed a strong statement in opposition to the rule resulting in the Bar amending its proposal (CDRC continued to challenge the less heinous but nonetheless dangerous attempt to include alternative dispute resolution within the compass of the Bar.)
The Judicial Council proposed rule changes to California Rules of Court 1620, 1621 and 1622, including a new complaint procedure against mediators in court connected programs. CDRC took a very strong position that welcomed review of mediator services but found Rule 1622 an over-reaction to what appeared to be a very small problem. The Judicial Council withdrew Form ADR108 that contained a confidentiality waiver tied to a complicated complaint procedure.
CDRC weighed in on the issue of free mediation services in connection with the Los Angeles Superior Court mediation program and voiced its opinion that the program ran afoul of some of CDRC’s announced principles including the concept that where parties can afford mediation services, they should pay for them. CDRC later sponsored a dialogue in Pasadena to address concerns with court-connected programs. CDRC was included in the small circle of individuals and organizations looking into that issue with the L.A. Superior Court.
2006: A Year of Coming of Age
In 2006, John Blackman took the helm of CDRC. In many respects, 2006 was a year when the CDRC rose to a new level of prominence on the ADR scene. For example, CDRC was consulted by members of the U.S. Congress concerning mediation language pending in several congressional bills, as people across the country recognized the ground-breaking ADR work that takes place in California. It was only fitting that at its January board meeting in San Diego in 2006, CDRC changed its slogan from “The Voice of ADR in Sacramento” to “The Voice of ADR in California.”
As in past years, CDRC once again weighed in on a myriad of issues. CDRC members provided public comment to proposed changes to the arbitrator disclosure rules, and continued working with the California Law Revision Commission concerning dispute resolution procedures for common interest developments. Again, by working the stakeholders behind the scenes, CDRC successfully guided the issue of ‘pro hac vice’ status (allowing out-of-state lawyers to participate in arbitration proceedings in California), into a process that works for everyone. The CDRC also weighed in as a major stakeholder in the continuing saga of the first legislation governing the important and innovative new ADR technique known as “Collaborative Law” – initially designed for use in the family law field, but almost certainly destined to reach other areas of dispute resolution as well. As a small example of the tremendous amount of volunteer work CDRC does, the Board considered 14 separate pieces of proposed legislation affecting ADR at its July Board meeting alone.
CDRC board members Jennifer Bullock and Elizabeth Strickland continued their pioneering work leading the California Coalition of Community Mediators (“CCCM”), a unique networking clearing-house for all things important to community mediation in California. The success of this CDRC-nurtured offshoot should remind everyone of the deep roots CDRC has in community mediation programs, highlighting once again that CDRC is not just another trade organization promoting the ‘business’ of ADR, but rather it is a guardian of ADR principles, promoting the principles that make ADR an essential component of our society’s system of justice.
Early in 2006, CDRC launched off on a lengthy project, capably headed by board member Steve Dinkin of San Diego’s NationalConflictResolutionCenter, to determine if a set of principles or minimum standards could be developed for mediation training programs.
In 2006 CDRC continued to struggle with the State Bar’s interpretation of Section 2 of the State Bar Act, which they contend prohibits lawyers from acting as ADR neutrals while on inactive status (the implication being that providing ADR services constitutes the practice of law – a concept that someday could be used to attempt to prohibit non-lawyers from being arbitrators or mediators). The final chapter has yet to be written as to whether lawyers and the court system get to control the field of ADR, or whether ADR extends beyond lawyers and the courts, but CDRC will continue the fight.
As always, CDRC continued to file amicus letters or briefs in the more important appellate cases involving ADR issues. Members of CDRC weighed in on the difficult cases of In re the Marriage of Kieturakis (2006) 138 Cal.App.4th 56 (mediation confidentiality upheld), and Gentry v. Superior Court (later to become a California Supreme Court case in 2007, at 42 Cal.4th 443) (class action rights not waivable in arbitration), among others.
The ADR scene was active right up until the end of the year, with the California Supreme court issuing the landmark ADR case of Fair v. Bhaktiari in mid-December. But the most significant case of the year also came out around this same time, out of the Second District Court of Appeal – Simmons v. Ghaderi, a very problematic case which created broad exceptions to mediation confidentiality. Jim Madison and John Blackman, former and current presidents of CDRC respectively, wrote an amicus letter to the California Supreme Court urging that it accept the case for review and that it reverse the appellate court. On December 20, 2006, the Supreme Court did accept the case, and as we all know, that paved the way for the Supreme Court’s eventual ruling, which followed CDRC’s Dispute Resolution Principles and maintained strict mediation confidentiality.
The CDRC also weighed in on an important proposed change to the Professional Rules of Conduct for lawyers. We provided public comment (and expertise behind the scenes) concerning the work of the Commission for the Revision of the Rules of Professional Conduct in regard to proposed new rule 1-720 (or Rule 2.4 under the proposed re-numbering to track with the ABA Model Rules), which also could have been interpreted to say that the practice of ADR was the practice of law, and thus reserved for lawyers only. Fortunately, CDRC and other ADR organizations kept the most offensive provisions out of the draft that will eventually be sent to the full Judicial Council and Supreme Court for approval.
On another front, the CDRC was successful in fending off another Judicial Council attempt to ‘over-legalize’ the mediation process, when it was able to overcome features of proposed Rule of Court 1634 from coming into effect, which among other things could have been interpreted to provide the courts with authority to order parties to mediation against their will, and to sanction them if they failed to participate.
This year also saw continued work on revisions to CDRC’s crown jewel, its Dispute Resolution Principles, with John Blackman spearheading the effort of restructuring and updating the language of this seminal document. He was helped primarily by former CDRC president Jim Madison, with help from former Board member Lee Jay Berman and past presidents Tom Reese and Bob Barrett. After its first posting in 2005, a second proposed revised version of this document was posted on the internet for public comment.
Finally, a busy year came to a very satisfying close with the 13th Annual ADR Policy Conference, held at LoyolaLawSchool in Los Angeles. Tom Stipanowich, then newly minted as the Academic Director and Professor of Law at the Straus Institute for Dispute Resolution at Pepperdine School of Law in Malibu, gave an audio-video tour of the world of ADR in his memorable keynote speaker address.
CDRC also proudly made the first presentation of its “California Dispute Resolution Council Award” in 2006, to be presented annually to a Straus Institute student for excellence in ADR scholarship.
But the real shining moment of the 2006 Annual ADR Conference was the Gala Awards Dinner held at the Los Angeles Athletic Club in downtown Los Angeles. Tom Stipanowich and CDRC Board Member Peter Robinson accepted CDRC’s highest honor, the Don Weckstein Award, on behalf of the Straus Institute for Dispute Resolution at Pepperdine School of Law. Also honored at the dinner was CDRC’s own inimitable “Ambassador of ADR” and longtime stalwart of the ADR community, not just in California, but nationwide – Mr. Gerry Phillips of Beverly Hills. If there are a handful of people whose very lives reflect the tremendous commitment to ADR principles that CDRC stands for, Gerry Phillips is one of them. CDRC and the entire California ADR community were truly blessed in 2006 to benefit from his tireless work.
2007: A Year of Reconnection
Don Fobian became president of CDRC in January 2007. Don and former president, Mickey Katz met with Jan Frankel Schau, president of the Southern California Mediation Association in an effort to reestablish the relationship that the two organizations have shared in the past. Shortly after that meeting, Don was invited by CDRC board member, Gerry Phillips, and Gail Kaplan his co-chair of the newly revitalized Beverly Hills Bar Association’s ADR Committee for a gathering of over seventy. It was an evening of idea-sharing, camaraderie, and friendship. CDRC was well represented at the event, with at least eight current and former board members and many members. Don also accepted an invitation from Ivan Stevenson, the chair of the Orange County Bar ADR Committee. The topic was “CDRC – What Have You Done for Me Lately?”
Shortly after that, Don and immediate past-president, John Blackman, traveled to Sacramento, where CDRC lobbyist, Donne Brownsey had arranged a meet-and-greet with a number of legislators and other individuals who are influential regarding CDRC policy. They met with Larry Doyle and Saul Bercovitch of the State Bar; Kate Howard and Dan Pone of the Judicial Council; Eric Cizmar, Legislative Deputy for the Governor; Assembly Judiciary Committee Chair, Dave Jones, and Assembly Committee staff attorney, Kevin Baker; Senate Judiciary Committee Vice Chair, Tom Harmon; and Gene Wong, Chief Counsel to the Senate Judiciary Committee.
Don and board member Elizabeth Strickland traveled to Los Angeles to meet with Judge Helen Bendix and Julie Bronson, court administrator of the Los Angeles Superior Court mediation program. The meeting in Judge Bendix’s chambers was very informative and up-beat.
Gerry Phillips accompanied Don to the annual meeting for LA’s DRPA recipients. It was a good opportunity for the community organizations to learn a little about CDRC and vice versa.
CDRC was also honored to be one of the co-sponsors of the World Forum 2007 conference entitled “Justice, Religion and Conflict Resolution” hosted by the Rock Rose Institute (whose founders include CDRC members). Participants came from around the world and the conference featured prominent speakers Archbishop Desmond Tutu and former Secretary of State, Madeline Albright.
In 2007, CDRC and other organizations joined together in protest of changes in the State Bar Rules Revision Commission’s proposal that would have given jurisdiction to the Bar to discipline mediators and arbitrators based upon violations of standards that were never meant to form the basis for discipline. Specifically: the draft rules transmuted aspirational standards in court-related mediation programs, and arbitrator ethics standards for contractual arbitrations into disciplinary grounds. CDRC and its organizational allies were able to thwart the efforts of the RRC.
The amicus curiae brief that was authored by Jim Madison and John Blackman as a response to the Simmons v. Ghaderi case which was a challenge to mediation confidentiality proved to be successful. CDRC has been a very effective advocate for such cases throughout its history.
Federal Magistrate Wayne Brazil was 2007 keynote speaker and recipient of the Don Weckstein Award at CDRC’s Annual Meeting and Policy Conference in Foster City.
2008 A Year of Vetoes
Paul Dubow, who had been chair of the Legislative Committee, became president in 2008.
CDRC was a major sponsor of SB 1177, which was designed to increase the revenue provided under the Dispute Resolution Program Act (“DRPA”) to community mediation organizations. The existing DRPA legislation permitted each county to divert up to $8 from each civil filing fee for use by community mediation organizations in the county. The combination of inflation and reduced civil filings made it necessary to increase the maximum amount that could be diverted and SB 1177 would have raised that amount to $12. Senator Mark Ridley-Thomas carried the bill. We faced an initial roadblock when Senator Perata, the president pro tempore of the Senate, introduced a bill that would divert $35 from the filing fee for the reconstruction of county courthouses. After much discussion, Senator Perata agreed that $3 could be used as DRPA funds, which would have increased the amount available under DRPA to $11. The bill passed both houses. Governor Schwarznegger’s staff initially indicated that he would sign the bill but, to everybody’s surprise, he vetoed it. We decided to start again in 2009.
During the course of the year, two bills were introduced in the Legislature that contained worthy motives but would have had a negative impact on arbitration generally. The bills were AB 2359, which was designed to eliminate practices that negatively affected consumers who entered into subprime mortgages and AB 2947, designed to prohibit residential care facilities from requiring patients to waive certain legal rights as a condition of admission or continued care.
Among other things, both bills would have prevented lenders and residential care facilities from requiring their customers and patients to enter into certain types of predispute agreements. It is one of the guiding principles of CDRC to oppose predispute agreements that are imposed upon consumers through adhesion contracts. Both of these bills provided for a new Section 1281(b) of the California Arbitration Act. This section was so broad that it would have also barred arbitration agreements that were not unconscionable and, as a result, the bill was likely to be preempted by the Federal Arbitration Act. Thus, the bills would not have accomplished their purpose and would have led to extensive litigation over the issue of preemption.
CDRC met with the authors of the two bills and, as a consequence, both legislators agreed to eliminate Section 1281(b). In addition, a new section was added to AB 2947 which specifically stated that the bill did not affect otherwise enforceable arbitration agreements. Both bills were passed by the Legislature, but they were vetoed by the Governor.
Two bills (S. 1782 and S. 2554) were proposed in Congress that would have substantially restricted the ability of vendors and employers to impose arbitration agreements upon consumers as a condition of doing business or on employees as a condition of employment. The purpose of both bills was salutary, but CDRC believed that they were so broad that they would restrict access to justice for consumers and employees. CDRC expressed its views in a letter authored by Paul Dubow. Neither bill reached the floor of the Senate.
The Administrative Office of the Courts (“AOC”) proposed new guidelines for mediators in court connected mediations. Courts would not be required to adopt the guidelines. Rather, they would serve as minimum standards for mediators in court connected mediations. CDRC supported the proposal in principle, but sent a letter to the AOC in July suggesting some amendments. The guidelines were still under discussion at year end.
The California Supreme Court reaffirmed its support of mediation confidentiality by reversing the decision of the Court of Appeal in Simmons v Ghaderi. CDRC filed an amicus curiae brief in the case, authored by Jim Madison, the chair of the Public Policy Committee, urging that the lower court’s ruling that a mediation party could be estopped from asserting mediation confidentiality be reversed on the ground that estoppel was not an exception to the statutory scheme that created mediation confidentiality. Many of the arguments that were raised in CDRC’s brief were contained approvingly in the Supreme Court’s decision.
Our year concluded with the annual conference, held this year in Los Angeles. Ester Soriano was the recipient of the Don Weckstein Award. Ms. Soriano had passed away earlier in the year and so the award was presented to members of her family. She earned the award because of her dedication to and support of community mediation in California during her lifetime.
In further recognition of Ms. Soriano’s service, CDRC established an award in her name which would be given annually to an individual who demonstrated a long term commitment to and advocacy for community mediation in California. Senator Mark Ridley-Thomas was the first recipient of the award. He was recognized because of his magnificent effort to obtain the legislature’s passage of SB 1177.
2009 - A Turn to Washington
Maurice Zilber became President in January 2009. Because of the budget crisis, there was relatively little legislative activity in Sacramento affecting neutrals, but there was much activity in Washington affecting arbitration that CDRC monitored and commented on.
We supported two bills introduced by Assembly Member Monning:
AB 1 would have added conflict resolution training to the list of subjects for which teachers could gain credentialing credit. The bill passed the legislature but was vetoed by the Governor. AB1090 made non-waivable certain ethics requirements and standards for arbitrators. It became Chapter 133 the Statutes of 2009.
We also supported if amended several other bills relating to construction contracts with the University of California and employment contracts arising out of employment or conduct in California. These were either vetoed or failed to pass.
While we remained concerned about funding for DRPA programs, which we had hoped would become law in 2008 but was vetoed by the Governor, we were advised by our lobbyist to wait until 2010 to renew that effort.
Toward the end of the year, we provided comments to legislative staff on AB 1588 which would establish a monitored mortgage workout program.
Our comments along with others have been taken into account in a redraft of the bill, which was expected to be released in February 2010.
CDRC is concerned with legislative or administrative initiatives that affect alternative dispute resolution processes in California wherever they may be introduced. Therefore, CDRC followed with interest and concern three bills introduced in Congress: Arbitration Fairness Act of 2009, H.R. 1020; Fairness in Nursing Home Arbitration Act of 2009, H.R. 1237; and Consumer Fairness Act of 2009, H.R. 991. These bills, if enacted, would invalidate any pre-dispute arbitration clause in employment, consumer, franchise or nursing home agreements. CDRC's Dispute Resolution Principles provide that arbitration should be voluntary, so unless a pre-dispute agreement is entered into voluntarily, the arbitration clause should not be binding. Thus, we supported the underlying purpose of this proposed legislation to the extent that it prohibits one-sided or compulsory arbitration agreements. Nevertheless, aspects of the proposed legislation are troublesome, particularly language that could be interpreted to upset settled law relating to commercial arbitration. We submitted comments to Congress in the Spring and resent comments to staff members of the House Sub-committee considering the Bills reiterating CDRC’s willingness to assist in crafting language for an opt-in provision for consumers, employees and franchisees as part of our concern that an absolute ban on pre-dispute arbitration clauses would diminish access to justice for the very class sought to be protected by the legislation. We also suggested that the Subcommittee consider adding a ban on class action waivers in arbitration.
In mid-summer we added a new benefit for our members. CDRC became an Affiliated Organization with the American Institute of Mediation (“AIM”), a recently formed independent organization for the training of mediators. CDRC members are entitled to 10% off all AIM courses and 10% off all books, materials, and other items in the AIM bookstore.
In August we had a transfer of administration from Amy Johnsgard, who was starting her last year in law school, to Linda Cain, who provides administrative support to several non-profit organizations in California. Linda was immediately tossed into logistical support for our annual conference.
In October we had a very successful well-attended annual conference. For the first time we teamed up with the UC Hastings Center for Negotiation and Conflict Resolution, which provided us with superb accommodations. Assembly Member Bill Monning, who had a distinguished career in dispute resolution before running for the State Assembly, presented our keynote address. Assembly Member Monning outlined the background of the State’s budget problems and some suggestions going forward to attempt to correct the legislative impasse of recent years. Donne Brownsey, as always, gave a witty and cogent view of the legislative year. There were excellent panels on methods to make arbitration faster and cheaper, neuro-science and mediation, trends in collaborative law, the use of mediation in non-litigation settings, arbitration in the motion picture industry and an exploration of the analytical framework parties, counsel and mediators bring to the mediation process. The Don Weckstein Memorial Award was presented to Jim Madison in recognition of his work on the State Bar ADR Committee, as chair of CDRC’s Public Policy Committee, including his many effective amicus briefs to the California Supreme Court, and his widespread teaching and lecturing activities on ADR topics. The Ester Soriano Award for Excellence in Community Mediation was presented to the San Francisco Community Boards, which is recognized as a pioneer in the field of community mediation and a model for many non-profit mediation programs across the country. Awards were also presented to the winner of the annual Strauss Award for the best paper on ADR written by a Strauss Institute student in the past year and to the Hastings Mediation Team. AIM sponsored a wine and cheese reception that attendees appreciated very much.
At year-end we were in the midst of creating a new and improved website, which would provide a “find a neutral” function for members who wish to have their biographical information posted on the site in a searchable format.
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