Bringing Psychologists to the Courts To Help Settle Cases in Marin County, California
By Carolyn L. Rosenblatt, RN, BSN, Attorney, Mediator
Marin may be the first county anywhere to use mental health professionals, working with lawyers, to help our judges get cases settled when a trial is looming. In California, when a case is set by the court for trial, it is mandatory that it go through a settlement conference, administered by the court, and supervised by a judge. Historically, the court enlisted members of the bar, with at least 5 years of experience, to help with the settlement conferences. These “bench-bar” settlement panels, as they are often called, usually consist of two volunteer lawyers, who work with the parties involved in the litigation and the judge, to try to reach a settlement at a special conference dedicated to this end.
In family law matters, Marin County has used volunteer psychologists to work with lawyers and the court on highly contested custody disputes for some time. Given the very high success rate of this method, our courts have now expanded the team approach using mental health professionals (MHP’s) and lawyers to work on other kinds of cases. The object is to keep disputes from having to be tried in court. The parties can and do reach agreements within about two weeks before the trial date at settlement conferences.
Expansion of the success of family law court in these custody disputes was spearheaded by Marin County’s innovative Judge Verna Adams. She gathered some interested lawyers together and the idea of expansion took shape through meetings and discussions. Next, lawyers who knew experienced psychologists and other mental health professionals invited a group of them to talk over the idea first with three of Marin’s judges.
The reception among the MHP’s was very positive. The next step was a brief “primer” in an orientation to the course of general civil litigation and trials, presented to the group of MHP’s by a lawyer. Interested MHP’s then attended a 4 hour training in the courthouse, conducted by Judge Lynn Duryee, who heads a new Marin County Courts settlement department. Lawyers who wanted to work with MHP’s were part of the training group. Participants were briefed on how settlement conferences are conducted, and their limitations and benefits. Role playing of typical settlement conference scenarios was followed by discussion among lawyers, Judge Duryee, and the MHP’s. “Graduates” of the training are ready to go. The program began in March, 2010. Early reports are that it’s going fine.
Marin County’s professional mediators, who attempt to get disputes resolved long before the settlement conferences, are often a part of the Alternative Dispute Resolution (ADR) Section of the Marin County Bar Association. Mediators also serve on the settlement panels. Generally, mediators are experienced attorneys who know the litigation process well, and who have moved away from a primary focus on litigation to the role of peacemaker. Whenever possible, the courts urge the parties to choose mediation at earlier stages in the process of litigation, in the interest of saving both time and money. Some cases can’t be settled early on, for a variety of reasons. However, the county’s mediators are enthusiastically seeking to increase the presence of mediation through a more structured process in Marin, as it is in surrounding counties, through court administered mediation programs.
Court-sponsored mediation programs may have attorney-mediators volunteer their time for two to four hours with the parties to a lawsuit in efforts to get it settled. After that, if the case is not resolved, the mediators are paid for their time by the parties to the lawsuit to continue with mediation for as long as the parties are willing to work at it. The success rate for mediation in general is about 80-85%, with somewhat less success for certain categories of disputes.
We see a possible role for psychologists as co-mediators with attorneys who are willing and able to work with them, to facilitate the process of mediation. If it works for settlement conferences conducted at the end of a dispute, just before trial, why not put lawyers and psychologists together at mediations in selected matters much earlier in the process?
At AgingParents.com, which offers dispute resolution services for elders and their families, among other services, we are finding that the co-mediation model works quite well. I as the lawyer-mediator probably reflect what a lot of other lawyer-mediators are finding: we love the skill set of a psychologist or other MHP as an adjunct to our skills in mediating cases. Most frequently heard praise of MHP qualities by lawyer-mediators: what great listeners you are!
Other very helpful skills psychologists offer are those of seeing the emotional undercurrent in a dispute, being non-judgmental, and knowing how to respond to upset litigants in a way that defuses, rather than escalates their emotional states. There are many other talents psychologists can offer to help get conflicts resolved. So far, working with lawyers and judges on a volunteer basis is groundbreaking, progressive, and has a far-reaching positive effect on the litigation process when a case is about to go to trial. We would be very happy to see it expanded even more and much earlier in our Marin cases.
Carolyn Rosenblatt is the co-founder of AgingParents.com, together with her husband, psychologist, Dr. Mikol Davis. She can be reached at