Show Me the Money!

{4 minutes to read}  After Covid shut down most courts in March 2020, it became clear that mediation could be an essential means to move cases along. The number of court-based mediation programs started to expand, with enormously positive results. This in turn has expanded the use of mediation as a routine part of the litigation process. It has also raised a long-simmering issue about paying mediators for their work.

The history of mediation goes back many years. Its first major use in New York was largely through what are called Community Dispute Resolution Centers (CDRC’s), which, as the name implies, handled community disputes. These were often the types of disputes that arose between neighbors. Excessive noise, some kind of trespass, an argument that was persistent and maybe about to get out of hand, or even did get out of hand, meaning the police had been called. Indeed, the police were often the conduit for cases going to a CDRC, since they realized the conflict was more civil rather than criminal.

There were some mediation programs affiliated with the courts, but they were often used sparingly, and mainly for smaller cases — Small Claims Court matters or those where the dispute was under $25,000. For the most part, mediators who participated in such programs were not paid. It was thought of as pro bono work or as free mediation training. Even when courts had mediation programs that included cases where the amounts in question were higher, mediator payment was either limited or non-existent. 

However, with more courts sending cases to mediation, including more complex matters, mediator compensation is increasingly required by court rule. But there is a lack of consistency.  Some courts establish set fees, some leave it up to the mediator and the parties, some require free preparation time, and others still do not permit any mediator compensation. This last option seems at best unfair. Judges get paid, court officers get paid, court stenographers get paid, court clerks get paid, and the litigators duking things out get paid.  Given the enormous benefits that mediation brings to litigants and the court system, mediators too should be paid for their work.

Mediator fees are generally split between the parties, so it’s usually quite a bargain for them.  When there are multiple parties, the per-party fees can be even less.  When you consider how mediation often reduces the length of the litigation, the cost of litigation, and the animosity between the parties, not to mention the ability to craft resolutions that courts cannot give, its value increases still further. Mediator payment therefore should not be an issue.

In those court-related mediation programs where mediator compensation is required, there is typically no pushback from litigants, and most of those programs require pro bono mediation where needed, so litigants are not denied access to mediation due to an inability to pay.

This will all unfold over time, but what has your experience been in court mediation programs that send out higher-value cases to mediation? What seems fair? If paying for the mediation, was it a good value? If you’re a mediator, what are your thoughts?

Gary Shaffer Shaffer Mediation Gary@ShafferMediation.com