Marin Community Mediation

Golden Gate Bridge, between San Francisco and Marin County

Golden Gate Bridge, San Francisco-Marin County

THE CONGRESS OF NEUTRALS, MARIN COUNTY

The Congress of Neutrals is a 501(c)(3) nonprofit corporation that has operated in the San Francisco East Bay since 2001, during which time its volunteer neutrals have conducted nearly 6,000 mediations in small claims, unlawful detainer, and civil harassment cases. In June 2014, The Congress of Neutrals opened a branch in Marin County to provide low-cost and no-cost mediation services to our local residents, businesses, and organizations. In July of 2012, I published a white paper – reprinted below – lamenting the fact that Marin lacked a community mediation center to provide affordable, high quality conflict resolution services in the county. I am delighted that The Congress of Neutrals stepped in to fill the void. As the Marin County Program Director, I look forward to introducing our work to county residents and businesses, and to help carry out the organization’s mandate to “serve community, promote harmony and help resolve conflict, one conversation at a time.” Our mission statement and core values can be found on our website at www.congressofneutrals.org.

MARIN COUNTY COMMUNITY MEDIATION CENTER WHITE PAPER, July 2012

Introduction

As a mediator and longtime resident of Marin County, I am troubled by the fact that we lack a community mediation center to provide free dispute resolution services, particularly private mediation, to our lower-income residents. For these purposes, I’m defining “private mediation” as an in-person session or sessions, held in a conference room or similar setting, attended by all parties to the conflict, conducted in strict confidence, and facilitated by a well-trained and experienced neutral third-party using a non-evaluative approach to resolving the dispute. I believe that conflict assistance is a core service that should be available to everyone in Marin. Currently it is not. This page is designed to stimulate a discussion about establishing such a center.

Free Dispute Resolution for the Needy

A community mediation center is generally defined as a private nonprofit or public agency that provides alternative dispute resolution services at various stages of conflict at no cost to the parties. According to the National Association for Community Mediation (www.nafcm.org), there are approximately 400 community mediation centers throughout the United States. We have several great organizations located here in Northern California, including in San Francisco, Berkeley and San Mateo. In Marin County, however, we have no community mediation center. Our residents deserve one.

My argument for a community mediation center in Marin is straightforward. Without such a center, private mediation in the county is available only to the wealthy. Yet it’s often the case that the people who can least afford high quality conflict assistance are the ones who need it most. Private mediation should be available to everyone, not just those who can afford to pay the market rates charged by professional mediators.

Access to justice and access to conflict assistance are not the same thing. It’s an accepted fact that low-income people have unmet legal needs. It’s also well-recognized that mediation is a better path to justice than litigation in most cases. If low-income people have unmet legal needs, and if mediation is a better alternative than litigation, then low-income people also have unmet mediation needs. Put another way, if the poor need and deserve free lawyers, then they also need and deserve free mediators.

Volunteer Infrastructure

The legal community supports the proposition that access to justice through the courts should belong to everyone regardless of income level. The California Bar Association and the legislature strongly encourage lawyers to engage in pro bono activities. Various nonprofit agencies help meet the needs of the underserved by offering free or low-cost legal services to those who can’t afford to hire a lawyer and they match attorneys who want to volunteer their time with low-income clients who need legal advice. Locally, through Legal Aid of Marin, attorneys have opportunities to do pro bono work in the community. In other words, we have an effective volunteer infrastructure for lawyers, including for lawyers in Marin.

If mediators are going to support the proposition that conflict assistance should be available to everyone regardless of income level, there needs to be similar volunteer infrastructure in place for dispute resolution. A community mediation center provides that infrastructure by bringing together low-income disputants with pro bono mediators for private mediation, similar to the way legal aid societies operate for attorneys and indigent litigants. Without a community mediation center in the county, we are not providing equal access to conflict resolution for the needy.

The market for pro bono mediation services in Marin is grossly inefficient precisely because there is no volunteer infrastructure. On the supply side, there are mediators who will provide their services for free, and on the demand side, there are low-income people who face conflicts and would benefit from free mediation services but either (1) aren’t familiar with mediation as a form of alternative dispute resolution or (2) have no place to go for free private mediation. A community mediation center would cure this inefficiency by educating the community about mediation and by pairing volunteer mediators with low-income disputants.

What’s Available in Marin County

Marin had the functional equivalent of a community mediation center for years, but it shut its doors in 2010 due to lost government funding. (I was not involved with that organization.) Limited free mediation is now available in the county under three government-sponsored programs: The Probation Department has a restorative justice program for crime victims and juvenile offenders; the District Attorney’s Office handles mostly telephonic mediations for people with landlord-tenant disputes, animal issues and consumer complaints; and Family Court Services conducts mandatory mediation for parents so that it can make child custody recommendations to the court. All three programs are staffed by quality people who do great work. None of these programs, however, handles private mediations. Further, all three programs are run by the government. My view is that a true community mediation center needs to be separate from the government.

The National Association for Community Mediation includes public agency programs in its definition of a community mediation center, so in a technical sense it can be said that Marin offers community mediation to its residents. But every mediator knows they are not the same thing. A government-sponsored program operated from a county office is very different than private mediation as I’ve defined it here. What we now offer in Marin is a far cry from a storefront community mediation center where people of modest means who are in the middle of a conflict can sit down in a room together and receive confidential and relatively immediate dispute resolution help from an experienced mediator providing his or her undivided attention and unhurried guidance. The fact is, many people will not feel comfortable walking into a government office and asking for private mediation assistance, even if it were available. This may be especially true for people from low-income communities, which is precisely the population that a community mediation center is meant to support.

I am encouraged that a new program of the Family and Children’s Law Center, a Marin nonprofit, has begun offering limited private mediation in family law cases.

The Other Marin County

Marin County has roughly 250,000 residents, over 80% of whom are white. Marin is also the 5th wealthiest county in the United States ranked by per capita income. If one lives in Belvedere or Ross, drives the 101 to work in San Francisco each morning and home at night, cycles on Mt. Tam on the weekend and never visits Marin City or the Canal, a “rich white county” may be all he or she experiences. Those of us who are paying attention and are involved in the community, however, know that the reality is quite different and that there are two Marins.

The Marin Community Foundation (www.marincf.org) commissioned “A Portrait of Marin: Marin County Human Development Report 2012,” which provides a detailed picture of what’s really going on. The report examined income levels in Marin neighborhoods and found a “tremendous variation” and “great disparities in earnings… by race and ethnicity.” For example, there is a fourfold difference between the average income in Tiburon, which is 87% white, and the average income in the Canal, which is 76% Latino. Earnings in the Canal are comparable to those in Mississippi and Arkansas. Further illustrating Marin’s lopsided income distribution is the report’s finding that the top one-fifth of Marin taxpayers earn 71% of the county’s income while the bottom one-fifth earns just 1.3% of the income. The report is available here: www.measureofamerica.org/marin.

In trying to make sense of why we don’t provide free private mediation services to low-income people in Marin, one theory is that we collectively don’t believe the market is there. If “everyone” in Marin is wealthy, the argument goes, then “everyone” can afford a private mediator, and we lack the demand for free conflict assistance – and accordingly don’t require a community mediation center. As “A Portrait of Marin” makes clear, however, our community has profound income inequality and there are plenty of struggling people among us. Statistics from the United Way also make this point, with roughly 23% of Marin households falling below its Self-Sufficiency Standard, a benchmark that measures income against actual cost of living by county. This equates to over 15,000 families in Marin, so there can be little doubt that we have our share of poor and underserved. Based on these figures alone, I submit that there’s plenty of demand for pro bono conflict assistance.

I’m reminded of the voice that Kevin Costner’s character heard in Field of Dreams and am quite certain that if we create a community mediation center, people will show up with their disputes. I also note that Marin’s previous and now-defunct community mediation equivalent reportedly handled hundreds of cases every year.

A One-Stop Shop

In its comprehensive report “The State of Community Mediation – 2011,” the National Association for Community Mediation describes the model community mediation center as a “veritable one-stop-shop for all things conflict-related.” The report is available here: www.nafcm.org/Resources/state. In addition to offering private mediation sessions at no cost to the needy, many community mediation centers provide services such as conflict coaching, restorative justice programs, facilitated large-scale public dialogues, coordination of court alternative dispute resolution programs, mediator training, and community education regarding the values and practices of mediation, among other things. Types of cases handled by these centers range far and wide but typically include landlord-tenant, consumer-merchant, neighbor, environmental, elder, civil rights, government-related and creditor-lender disputes. Most community mediation centers receive referrals from organizations such as nonprofits and government agencies.

Any community mediation center must respond to the conflict needs of its community. I don’t purport to have all the answers as to what a Marin County community mediation center would or should look like. Local needs and demand will drive that decision. What I do know is that it’s time our community recognized conflict assistance as a core value and then backed up the proposition by establishing a center whose mission it is to provide free private mediations to everyone who needs them.

Volunteerism Among Mediators

As mentioned above, state and local bar associations and legal aid organizations create volunteer infrastructure, making it very easy for attorneys who want to volunteer their services to meet the needs of low-income people who require those services. Typically, the bar association or agency provides the volunteer opportunity by announcing the availability of free legal services in the community, and the lawyer simply shows up on the appointed date (sometimes to a clinic, sometimes in court) and lends his or her expertise to the client. This is a highly efficient process, with the supply of free services intersecting with the demand for those services.

Because of the longstanding community service tradition among lawyers, and because many mediators are attorneys, the Bar represents an excellent model for analyzing mediator volunteerism. The State Bar of California’s Pro Bono Resolution (1989, 2002) urges lawyers to devote at least 50 hours per year to the indigent or to non-profit organizations that assist the underserved or poor. The California legislature, in Business and Profession Code Section 6073, refers to a “pro bono ethical commitment” for attorneys and states that “every lawyer… is expected to make a contribution” by providing “voluntary pro bono legal services to those who cannot afford the help of a lawyer.”

Although mediation organizations exist, membership is not a requirement to mediate professionally in the same way that membership in a state bar association is a requirement to practice law. The pro bono encouragement that a bar association does with its members is therefore missing among mediators. Moreover, there are no licensing requirements for mediators in California, so the legislature can’t promote volunteerism among mediators as it does with attorneys; there’s simply no forum for jawboning.

The issue in any case is less about convincing mediators to volunteer their time than it is about giving them the opportunity and an outlet for doing so. In my experience, people in the dispute resolution field are overwhelmingly kind and caring and eager to help others, so the mediator-equivalent of the attorney pro bono requirement would be superfluous. If we want mediators to lend their conflict expertise to the poor, what’s needed is infrastructure for them to actually perform that function. This means having a center that matches mediators with low-income disputants, as a legal aid society does with lawyers. A community mediation center plays precisely that role.

Opportunities for private mediators in Marin to offer their services pro bono to the needy are basically nonexistent because we have no community mediation center here. In a word, we lack the necessary infrastructure. My own experience illustrates the point. I volunteer substantial time in Marin, as a Court Appointed Special Advocate (CASA) through the Juvenile Dependency Court and as a pro bono attorney, and have spent countless hours coaching youth sports on Ross Valley Little League fields and on San Rafael basketball courts, as well as serving on various nonprofit boards and committees. In other words, opportunities abound for me to give back to my community – except as it relates to mediation, which is my profession. In order for me to help the needy with dispute resolution, I am actually required to travel outside of the county to a community mediation center in another city because we have no center of our own. I am not the only Marin County mediator who does this.

Volunteerism not only lifts up communities but it also raises personal spirits. We are at our best and grow stronger when we help others and ask for nothing in return. If community service is a gift; community service in one’s own community is a greater gift. A mediation center in Marin will allow local mediators to help their neighbors and improve their community.

Community Outreach

As a mediator and an attorney, I am keenly aware that many people who can benefit from mediation as a way of resolving disputes aren’t actually familiar with it. Most people are familiar with litigation as a way of dealing with a dispute. I am rarely required to explain what it means to get sued. On the other hand, alternative dispute resolution methods like mediation are still shrouded in mystery for much of the population. Like most mediators, I spend a fair amount of time explaining what mediation is (and what it is not) and how it can benefit people in conflict, and I do this not only at the outset of each mediation session but also whenever anyone will listen. I find that most mediators are ambassadors for the cause.

There is certainly greater understanding about alternative dispute resolution today than was the case 25 years ago when I entered law school. Most courts, including those in Marin County, have embraced ADR as a way to lighten dockets and relieve an overburdened judicial system. But a greater understanding of mediation isn’t tantamount to sufficient understanding, and a community mediation center plays an important role in this regard by actively engaging in public awareness and education activities regarding conflict resolution. Frequently this involves promoting conflict assistance at community events, coordinating with organizations, government agencies and schools, and working through peace officers to inform disputants that mediation is available. By advocating, initiating and serving as a resource for alternative dispute resolution, community mediation centers promote peace in neighborhoods and communities. Since we lack such a center in Marin, opportunities to create better neighborhoods and stronger communities through conflict resolution education are lost. Also lost is the opportunity to further unburden our courts by offering everyone with a dispute a viable alternative to litigation at the earliest stages of conflict.

Economics

Several things brought me to the field of mediation: The work is tremendously gratifying; I have an opportunity to help others; I get to combine my dealmaking skills and knowledge of the law; I see the fruits of my labor in real-time; and I am paid to make peace. Lower on the list, but still important, is that I fundamentally dislike inefficiency. This comes from having studied economics at Swarthmore and being imbued with the economist’s objection to waste. Litigation is inherently inefficient. It consumes an inordinate amount of resources, both public and private. Mediation, on the other hand, offers better results for a smaller investment of time and money. The return on mediation is significantly greater almost every time. This is the economic argument for mediation: It creates efficiencies within the community. More mediation in Marin means less litigation, which in turn relieves pressure on our overcrowded courts.

The National Association for Community Mediation, in the 2011 report cited above, describes the average community mediation center as having a budget of less than $200,000 to support three full-time staffers. Marin has an oversupply of private mediators. I am convinced that we can staff our community mediation center with volunteers and operate it on much less. Although the National Association for Community Mediation report states that the average community mediation center receives 49% of its annual revenue from the government, my vision is to create and run our center without any government assistance, using an all-volunteer administration and various revenue-raising endeavors.

Getting Started

How do we establish a community mediation center in the county? With a personal aversion to government funding (together with a sense that none will be forthcoming in any case) and zero experience seeking grant money (together with a sense that it won’t pour in on Day One in any case), I’m in favor of a bootstrap approach to get things rolling. The two major expenses are labor and space. The third piece relates to the disputes themselves.

How will we pay for labor? The San Francisco Bay Area, and Marin County in particular, may have more mediators per capita than any place in the world. I have no empirical data to back up this statement, but there is certainly a glut of mediators in Marin, collectively chasing too few private mediations. In the face of labor oversupply, people typically make geographic changes, find a different line of work, take a pay cut or put their feet up. Most Marin County mediators are faced with this problem of oversupply and augment their mediation income with other work, usually lawyering (which may be at odds with promoting alternative dispute resolution, although I understand that people have to make a living). One solution is to keep Marin’s mediators busy by having them volunteer a little time in our community mediation center, an idea that handsomely addresses the issue of labor costs.

How will we pay for space? The economic climate won’t allow for a brick and mortar center, so let’s start with the donation of conference room time to conduct private mediations. Marin mediators and other nonprofits in the county can help in this regard, keeping in mind that private mediations in the community context are often held in the evening and on weekends, so cannibalizing scarce office space needn’t be an issue.

Where will the cases come from? Disputants are generally connected with their community mediation center through referral partnerships. How this will work in Marin should be addressed in an early discussion about conflict assistance needs in the county. There are many potential referral sources, including nonprofits, court ADR programs, government agencies, police departments, schools, business groups and religious organizations. My sense is that self-referrals will come over time, after building public awareness through a community outreach effort.

I envision a dispute resolution storefront that beckons people in, similar to those that exist in many other U.S. counties, but it clearly won’t be built overnight, so what I’m proposing is that we think big but start out small. This entire effort can be launched on a shoestring budget through volunteer mediators and donated space, and will possibly involve partnering with other nonprofit agencies, including legal service providers, in the formative stages.

In order for a community mediation center to properly fulfill its role in the county, people will need to know it’s there and trust it with their conflicts. We ultimately need to give people a place to bring their disputes. This will take time but doing nothing about it now simply perpetuates the status quo and guarantees that we will continue to come up short in providing free conflict assistance to Marin’s needy.

Summing Up

In most places, the largest segment of the population cannot afford to hire an attorney or a private mediator. In Marin, a significant percentage of the population has plenty of money and can afford to hire attorneys and mediators. But Marin still has a significant and growing marginalized class, people who are in need of free dispute resolution services. Recognizing that we have two Marins and many vulnerable people here is the first step. The second step is to agree that conflict assistance is a core value in our county. The third step – and the one before us – is to roll up our sleeves and create a community mediation center for our neighbors. I invite you to contact me so that we can work together to help the lower-income populations of Marin reap the benefits of private mediation.