Within days, Los Angeles Superior Court will close its ADR (Alternative Dispute Resolution) Department, a victim of drastic budget cuts. For the mediation community, this should be a welcome development.

The court’s mediation program came about around 1994, a time when cases often didn’t get to trial for five years. It was a win-win-win-win proposition: Cases would be resolved early, so the court would reduce a crushing docket. Attorneys would have the certainty of a settlement, rather than risking trial. Clients, who must agree to any mediated settlement, would be satisfied. And mediators—largely unknown at that time—would get experience and exposure. If they performed well on the cases randomly assigned to them, attorneys would hire them privately and their careers would take off.

Mediators were to be paid a small stipend for each case. But a funding crisis made that impossible. Instead, the court asked mediators to work two free hours before being paid. Soon, that became three uncompensated hours, not including preparation time. Within a few years, these terms became enshrined in statute, for all time. (I’m indebted to Los Angeles mediators Lee Jay Berman and Charles Parselle for this history.)

While Los Angeles’ ADR program remained frozen ca. 1998, nearly every other large county in California established its own mediation program, with almost all paying mediators for their time. My own survey of the twenty largest counties showed that only five others require any pro bono service, and three of those for just two hours. Some also pay for a portion of the mediator’s preparation time. So Los Angeles, the state’s pioneer in promoting mediation, treated mediators less favorably than the other counties.

For a time, the Los Angeles program worked as everyone had hoped. Cases were settled, lessening the burden on the courts. Attorneys and litigants appreciated an alternative to protracted and expensive litigation. Many early panel members launched successful mediation careers.

But as the legal community became accustomed to free mediation, they did not want to start paying for it. When the court established a second mediation panel, enabling the parties to choose the mediator from a more experienced roster and pay a below-market rate for the first three hours, it was not widely used. (I have heard, but not verified, that the pay panel was used about 15% of the time at the downtown courthouse, far less at the other courts.)

Over time, the program provided free mediation far beyond the types of cases for which it was intended. My mentor and friend Victoria Pynchon recounts mediating a highly technical, complex commercial case where the plaintiff was seeking $10 million. Pro bono. The drawbacks of the pro bono panel also became clear. Judges would send litigants to mediation, whether or not they wanted it or even were ready for it. Court-imposed deadlines meant that mediation often took place before enough discovery had been completed to make the session meaningful. But attorneys usually participated anyway, even if only to check off a box. At a minimum, they would leave with free discovery and insight into their opponent’s thinking.

So it’s not surprising that in 2005, when mediators asked for changes to the program, their efforts went nowhere. The program was working very well for the court, attorneys, and parties. As for the fourth part of the equation, the mediators, what about us?

Intended as a career-builder for mediators, the pro bono program instead turned into a trap. As new mediators continued to join the court panels, there was always a supply of mediators willing to work for free. Paradoxically, many lawyers thought of pro bono mediators as inexperienced and/or not particularly competent — yet at the same time “good enough” to go back to the panel over and over again. As in any labor market, the presence of low-paid (here, unpaid) workers also depressed the market for those with more experience. So the promise of future paid work became largely illusory.

But I have come to bury the pro bono program, not to trash it. What is next for the Los Angeles legal and mediation community? That’s my next post.