Mediators Mixed on Pay Proposal for First 3 Hours
By Mary P. Gallagher
New Jersey Law Journal
Vol. CLXXXI – No. 8 – Index 645, August 22, 2005
A proposal to raise the pay of court-referred mediators
from nothing to $100 an hour for the first three hours is
working its way through the system. But mediators are split
on whether it is enough — or even necessary.
The Supreme Court Committee on Complementary Dispute
Resolution recommended the rate in April in the face of
large numbers of mediators abandoning the program.
The recommendation is before the Judicial Council and
then will head to the Court.
And looming in the background is the expected expansion
of the program from 17 to 21 counties, increasing the need
While most mediators welcome the prospect of payment,
some say it is too little, too late. Others say they see
themselves as volunteers and are happy to continue that way.
Free mediator time has been part of the deal since
court-referred mediation in Superior Court began in 2000.The
idea was that litigants, who had gone to court and paid a
filing fee only to be thrust into mediation, should not have
to pay for it.
After the first three hours, including at least 90
minutes of actual mediation time, mediators are allowed to
charge their usual hourly rates, which average about $250 to
$300 per hour.
According to the court’s Web site registry, only one
mediator charges as low as $100 — Geoffrey Alexander, an
attorney employed by CNA Insurance who was on vacation last
week and could not be reached for comment. The highest rate
listed, $510, is for John McGahren, a lawyer with Latham &
Watkins in Newark.
The problem has been that mediators are not getting the
chance to earn some money on the back end of the process
once the meter starts running. A court survey found the
average number of hours spent per mediation was 3.04 and the
average time paid was 1.43 hours.
John Sands, a West Orange lawyer who exclusively does
mediation, say he was losing more than three hours per case
before he quit. Parties would often just go through the
motions, ready to walk out the door as soon as the three
hours were up, he recalls. Because he usually sets aside an
entire day, that leaves him with “a loss of inventory that’s
never going to be made up,” he laments.
Litigants don’t give it a real effort not just because
they are forced into it but because offering it for free is
“an inherent devaluation of the mediation process,” say
Significant numbers of other attorneys have been
resigning from the program or going on inactive status,
according to Michelle Prone, chief of civil court programs
for the Administrative Office of the Courts.
From a high of about 750 active mediators roughly two
years ago, the number fell to 565 as of May, with another
285 on inactive status. Of those who gave a reason for
leaving, many said they were tired of not making any money,
Some who deactivated themselves indicated they would
reactivate if the$100 per hour rule were adopted while
others are close to quitting but are waiting to see what
will happen with the committee’s recommendation, she adds.
Robert Margulies, a past chair of the State Bar
Association’s Dispute Resolution Section and a member of the
committee that made the $100 recommendation, predicts that
if the Court rejects the proposal, “enough good people will
leave the program that it will fall apart.”
Perone’s concern is the loss of many experienced people
who are “theoretically, getting the most wornout.”
Margulies, of Jersey City’s Margulies, Wind & Herrington,
estimates he is donating $30,000 worth of his services a
year based on his $400 per hour rate.
“We’d love full compensation but this is a reasonable
compromise,” he says of the proposal. One lawyer who got
tired of waiting was Hanan Isaacs, who was with the program
from the start but tendered his resignation two weeks ago.
The Princeton lawyer, a past president of the New Jersey
Association of Professional Mediators, does not plan to
return if the Court accepts the recommendation, calling low
pay not much better than no pay.
Isaacs says his refusal to continue is a matter of
principle and not just economics. This is not a pro bono
situation where the parties cannot afford to pay, he says.
“We’re being asked to donate money in the form of reduced
fees or no fees to people who don’t need the donation.”
Moreover, it is hard to schedule sessions with people who
have not chosen the process, he says. “My staff is thrilled
we’re not doing it anymore.”
It also rankles Isaacs that no one else is working for
nothing, including the parties’ counsel and the judges.
He says he would prefer a system where litigants are told
“you don’t have to go to mediation but if you go, you have
to pay.” Or where they are told that the mediators have
varying levels of skill, and that some will give three free
hours. He would also like orientations for the parties.
Anju Jessani, who will become president of the mediators’
group in October, says “three free hours is unacceptable”
and the group supports the proposed $100 per hour rate as
“significant first step.” Though many members feel they
should be able to charge market rates, the group has taken
no official position on that aspect, she says. Jessani, a
nonlawyer, works for Divorce with Dignity in Hoboken and her
usual rate is $200 an hour.
Jeffrey Mintz, a Mount Holly lawyer-mediator, sees $100
an hour as “a reasonable compromise,” especially because the
parties split the cost. But he wishes cases were not
automatically assigned out so early because they are not all
ready to be mediated at that point.
On the other side of the coin is McGahren, the
$510-per-hour mediator, who says he views the program as pro
bono and has never charged for court-referred mediation. “If
I was looking to do this for other than pro bono purposes,
$100 would not be adequate,” he adds.
Taking a similar view is Hackensack solo Patrick
Amoresano, who says he is not unhappy with the status quo
but understands why others might find even $100 per hour
insufficient. He says having the credential and getting to
meet new lawyers is enough for him. His usual rate is $150
Jonathan Hyman, a member of the Court’s and Bar’s dispute
resolution committees, calls compensating mediators “an
important thing to do to keep the mediation program
growing.” A professor at Rutgers Law School-Newark who
teaches mediation, Hyman is not part of the court pro-gram.
Other states have court-referred mediation but none
“requires or has built in such a massive amount of donated
time” from mediators, he notes.
Stemming the outflow of mediators is especially important
with the number of cases sent for mediation expected to grow
markedly in the near future.
The program now covers 17 counties — all but Morris,
Sussex, Atlantic and Cape May — but the presiding judges
recently voted to extend the program statewide.
The Supreme Court has yet to action the issue but Perone
says the presiding civil judges for the four counties not
yet in the program — Carol Higbee for Atlantic/Cape May and
W. Hunt Dumont for Morris/Sussex —recently told her they
plan to move toward presumptive mediation even if the
Supreme Court does not require it.
At present, matters in those counties are referred to
mediation on a case-by-case basis when ordered by a judge
and not as a matter of course.
In addition, next year will bring an influx of Lemon Law
cases. Courts had been regularly sending such cases to
mediation but stopped last year because there were not
enough mediators to deal with them, though judges could
still refer them on an ad hoc basis, says Perone.
Only 18 mediators currently appear on the court roster as
experienced in Lemon Law matters, but Perone expects to add
a lot more with training sessions planned for this fall.
Under a statewide pilot program slated to begin Jan. 1,
Lemon Law litigants will have 90 days after the answer is
filed to choose among mediation, arbitration or voluntary
binding arbitration. (Arbitrators who participate in court
programs are paid for their time.) Those who make no choice
will be sent to mediation. An estimated 1,500 Lemon Law
cases are filed annually.
Once all 21 counties are routinely referring civil cases
to mediation, the statewide total could rise as high as
10,000 a year, anticipates Perone, creating a substantial
jump in the demand for mediator hours.
AOC statistics show 5,764 cases referred to mediation in
2004, down slightly from 2003’s high of 6,163.The drop was
probably largely caused by the Lemon Law loss, says Perone.
The presumptive mediation pilot program for civil cases
began in 2000in Hudson, Mercer and Union counties.