It is not often that judges agree on something. The authority of the bench gives a judge the opportunity to express his or her individuality in the management of caseload as well as legal opinion. I was surprised to find unanimity of positive regard for the CADRe program amongst our four civil judges in South County. In a series of interviews, all four civil judges in the Santa Barbara Superior Court, South County, agree that the institution of CADRe has been a tremendous asset to case management and dispute resolution. However, as expected, the judges differ in how they utilize CADRe as a case management tool.
Our Superior Court Judges have fully embraced Alternative Dispute Resolution. They tend to fall into two schools of thought about how to use CADRe. Brown and deBellefeuille use CADRe like a partnership. They tend to see CADRe as their assistant administrator in doing the in depth discussion with attorneys about their cases that is sometimes inappropriate for judges in court trial cases, and is always too time consuming. McLafferty and Anderle because of their personal style and philosophy are a bit more cautious in their use of CADRe. They agree with the other two judges that settlement is the goal if possible, and they encourage the attorneys to keep talking. But they like to keep greater control of their calendar, keep the attorneys talking in their courtroom more, and only send a case to CADRe when they are convinced it will benefit the case. All the judges agree that but for CADRe they would spend a lot more time in settlement conferences and in civil trials.
"A judge's use of CADRe reflects the personality and style of the judge," according to Judge Brown. His and Judge deBellefeuille’s style could be characterized as pragmatic, whereas Judge McLafferty and Judge Anderle's style is selective.
Judge Brown's and Judge deBellefeuille are both practical and opportunistic (in the best sense of the word). If the service is there, use it, they say. Their goal is to refer all cases to CADRe. They believe that any case could benefit from the process of the attorneys sitting down with the CADRe administrator and discussing their case. They refer virtually all of their cases to CADRe at the first CMC unless there is serious objection. Both believe that judges should encourage the parties to talk, and as early as possible. "CADRe," says Judge deBellefeuille, "is a gift. It has changed the way cases are settled enormously." She sets her MSC's conferences a month before trial and finds that most cases have been settled by then. She usually has only about four MSC's on the calendar per week.
In stark contrast, Judge McLafferty and Judge Anderle are very selective about the cases they refer to CADRe. Judge McLafferty describes his own style well. He likes to closely administrate his case management following "[his] basic instinct about what a case needs." He says that he suggests CADRe at every CMC, but finds that a lot of attorneys have their own mediators they want to use. But if a case is not ready yet for mediation, he will assign another CMC date a month or two hence.
Both Judge McLafferty and Judge Anderle use an Early MSC conference to assist their case management and assist with settlement. They will set an MSC three months or six months after the CMC, unlike the other judges who set MSC's two to three weeks before trial. Their goal is also to get the parties talking earlier rather than later.
As one of Judge McLafferty's Settlement Officers, I know that he utilizes the talents of many attorney/mediators in Santa Barbara to assist him on his loaded MSC's afternoons. A case could come back for MSC many times before it is set for trial. If a case does not settle at MSC at either three months or six months, he will set it for trial, or he will send to CADRe and then set it for another MSC three months hence. In this way he "keeps control of the case." He keeps track of the case to put pressure on the attorneys to meet and confer to try to settle the case until there seems to be no hope the case will settle. He challenges attorneys at the MSC stage to show him or his settlement officer "what is blocking settlement or what is so difficult about this case" and encourages attorneys to find a way to get through that barrier.
Judge McLafferty refers only a quarter of the number of cases that Judges Brown and deBellefeuille refer, but as a result of his selectivity, a much higher percentage of the cases actually opt into one of the ADR processes offered by CADRe. According to recent statistics, about 90% of Judge McLafferty's cases actually opt into CADRe once they are referred, whereas less than 50% of Judges Brown and deBellefeuille cases actually opt into the process. However, as a result of their higher referral rate, more than twice as many of their cases get resolved by CADRe than do the cases from either McLafferty or Anderle.
Judge Anderle takes a cautious approach to referral, also. He, too, refers a much smaller number of cases to CADRe. His referral to CADRe depends on the nature of the case. He will refer simple cases such as fender benders at the first CMC. However, he finds many complex cases are not ready to refer because the attorneys do not understand the nature of their case at 120 days. When he finds a case is ready, he will refer to CADRe.
The success of CADRe is found in the statistics. Latest numbers which can be found on its website (www.sbcadre.org) reveal a 54% settlement rate in limited jurisdiction cases (which are assigned to a mediator) and a whopping 72% settlement rate in non-limited cases (parties choose and pay for ADR).
Due to its success, the judges have expanded the use of CADRe. Recently the court discovered that former limited jurisdiction Municipal Court cases, valued at less than $15,000 and formerly not subject to Rule 1309 requiring a CMC at 120 days, were languishing on the dockets. The Court has revised 1309 to place these limited cases on the regular case management track. At a CMC, they are now routinely referred to CADRe or to Judicial Arbitration, although judges find attorneys prefer CADRe mediation to Judicial Arbitration.
Judge Brown, the Supervising Judge of the [South County] civil judges, would like to see an eventual consolidation of all ADR in the Superior Court. That would mean that CADRe, Judicial Arbitration, and Family Court Mediation would be merged under one administration. Another possible expansion of CADRe is the area of family law and particularly, pro per family law matters. Annually the court has about 2,000 pro per family law cases on its dockets, and about 1,000 other pro per cases. Judge Anderle, who chairs the Pro Per Committee of the Court, is concerned, that unlike represented parties, pro pers have no one to help them with settlement. Judge Anderle is exploring creative solutions to help pro pers find a forum to negotiate and CADRe may be a possible answer.
