Inside: Guest Editor’s Column

Nicole Mills

In our June issue, our Presiding Judge, Diana Becton, wrote a sobering article entitled “Access to Justice in the Wake of Budget Cutbacks.” We all know that the budget crisis is not going away any time soon- and in fact has the very real potential to become a lot worse.  Judge Becton’s article gave us a peek of where we stand- permanent budget cuts of $8.4 Million over the last 3 fiscal years with an additional 4.1 million in permanent cuts due to hit next year and, as Judge Becton tells us, “[i]f the temporary taxes proposed by the Governor are rejected by the voters, then there will be another $125 million cut to the Judicial Branch” which translates into at east an additional $2.1 million in cuts to the Contra Costa Courts.

What could that mean for people trying to litigate in our courts?  It could mean a lot- including massive delays in hearing anything other than criminal and juvenile law cases, suspending adjudication of all small claims and limited jurisdiction cases.

Given the situation we are about to find ourselves in, we here at the Contra Costa Lawyer want you to think about ADR.  Now, when you hear those letters, you usually think “Alternative Dispute Resolution.”  This month, we would like you to think of “Alternative Dispute Resources.”  This month, we want to encourage you to think outside of the litigation box, to the myriad other ways you can advance your client’s interests if the traditional route of litigation is not readily available.  To that end, we have several articles designed to help you do just that.

For business attorneys, Ben Borson has suggested a potentially different approach to negotiation- instead of negotiating with litigation in mind, approach negotiations as an opportunity for a win-win solution.  Contracts that are fair and negotiated cooperatively are less likely to require intervention by the Courts in the first place- saving your client both time and money in the end.

Do you have employment claims that need to be handled?  Click on the article by James Wu and Michelle Regalia McGrath who have focused on the resources available for resolving employment claims- both on the state and federal level.

In house counsel and trial attorneys alike should read Linda DeBene’s article on the use of Special Masters to advance your case when the Court delays are not in your best interest.  She offers practical advice on the use of Temporary Judges and Referees and tips on how to use them most efficiently and effectively.  If you would like to hear more after reading her article, make sure to sign up for the MCLE Spectacular presentation entitled “Back to the Boxing Ring of Backlogged Dockets:  Alternatives available to survive  judicial budgetary constraints/unfilled judicial positions  and the growth of ESI, E-discovery and E-discovery Sanctions” which is being co-sponsored by the Business Law and ADR Sections.  While both the article and the MCLE Spectacular presentation are designed to provide you with alternatives to the delay in process that may become inevitable, the MCLE Spectacular presentation will provide far more detail from an exceptional panel that will include not only our own Linda DeBene and Roger Brothers, but also Judge Goode, Jonathan Redgrave of the Academy of Court Appointed Masters, and Lisa Turbis in-house counsel at Autodesk.  Given the looming budget cuts, it is a program that everyone working with the Courts should really consider attending.

David Miller has taken a look at all of the options that our Courts- even in a time of budget crisis- offer us to aid in the resolution of our claims and the development of a creative litigation plan designed to achieve that resolution.  From the traditional option of mediation to settlement conferences, neutral evaluation and arbitration, the Contra Costa Superior Courts have made ADR a priority.  One of these programs is the Settlement Mentor Program.  Judge Craddick talks about this program, its benefits to both the Court and the participants and gives a glimpse into how the program works.  This is yet another program offered in partnership between our Court and volunteers.

Particularly in a time of budget crises, the Court could not make these offerings without countless hours of volunteer time offered by our Bar Association members and all of the other attorneys who practice in our Court- and for that we thank you all.  The partnership between our Court and our volunteers is special and benefits everyone- the Court, the litigants and the volunteers. 

Should you find yourself taking part in mediation or arbitration, whether via the Court panel or private mediation/arbitration, we have suggestions on how to make the most of your opportunity.  Malcolm Sher offers suggestions and perspectives on the importance of preparing properly for mediation, while Joshua Genser offers his perspectives on Appraisals and Arbitration.

The current budget crisis is wreaking havoc on our judicial system and it is poised to do even more damage depending on the outcome of this fall’s elections.  Judge Becton has given us a glance at what may come.  It is our hope that with this issue, we have given you ideas and strategies on how to be the best counselor for your client and how to achieve their goals without having to resort to full blown litigation.

One final note.  Under normal circumstances, we would have even more information for you in our annual Bench/Bar issue which usually comes out in September.  We know that this is one of the most popular issues that we do all year and that you are all looking forward to it.  However, due to the uncertainty in the budget, we have decided to delay that issue until November so that we can give you the most up to date, concrete information available.

Nicole Mills is a mediator specializing in business disputes and elder mediation.  She is the current Chair of the ADR Section and is also the Co-Editor of the Contra Costa Lawyer.  She can be reached at nicolemillsesq@yahoo.com.