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Courts work to reduce case backlog with settlement judges

Alternative dispute resolution strategies have long been praised as a way to save the court time and money, while giving people more control over the outcome of their case.

Now, with the California court system having suffered significant budgetary cutbacks, mediation and arbitration are more important than ever.

San Diego Superior Court utilizes a variety of settlement options, including settlement judges, to help ease the backlog of cases piling up on its judicial calendars.

A majority of settlement judges are attorneys who volunteer as mediators to help disputing parties resolve their case before it goes to trial.

Settlement judges differ from typical mediators in that they have more power of persuasion, said La Jolla attorney Thomas A. Henry Jr., who began volunteering as a settlement judge this year.

He likens them to "a mediator with muscle."

"We can lean on one side to give up something if it means settling a case, especially if we see weaknesses in their position," Henry said.

Settlement judges also have access to a sitting judge during the course of settlement talks. The settlement judge can go to a judge's chambers, explain each litigant's position and ask whose case is better.

"The judge can be pretty frank about how the case is going to go," Henry said.

This allows the settlement judge to explain to the disputing parties how a trial might turn out and who the judge feels has the best case.

"That can be persuasive on the parties," Henry said. "A lot of times clients get so intent and emotional about their case that the lawyers may have a little difficulty controlling (them).

"The lawyer can say to a client, 'You know I'm not so sure we're going to get that in as evidence,' but sometimes the client is very insistent."

When a third party echoes the lawyer's sentiments, it can help the client sees his counsel's position.

San Diego Superior Court does not make a settlement conference mandatory for all civil cases. But it is required for those disputes involving family law or probate.

Since San Diego Superior Court was forced to close its probate court in Vista, all those cases were moved to the central division downtown, creating a heavy burden.

In civil court, there are several settlement programs, depending on the case type and the assessment of the case by the parties and the judge, said Supervising Civil Court Judge Jeffrey Barton.

"We have a successful voluntary mediation program for civil cases," he wrote via email.

The court also has a full-time settlement conference judge downtown, Thomas Nugent. Cases are most commonly referred to him at the request of the parties.

Many independent calendar judges do settlement conferences upon request.

"I applaud the family law courts for doing mandatory settlement conferences," said San Diego attorney Meredith Lewis, a partner with Lewis, Warren & Setzer who practices family law mediation. "It's absolutely a good program.

"I'm a big proponent of mediation. It helps streamline the court system, alleviates the backlog and helps clients save money. It also allows family law attorneys to do pro bono work."

Susan Finlay, a retired Superior Court judge who now is a mediator for the National Conflict Resolution Center, said once a complaint is filed, the discovery phase can reveal information about a case that wasn't known beforehand.

“At that point, they have a chance to assess the value of their case and a settlement conference is very beneficial,” she said. “Then they know if it's really a strong (case).”

In addition to saving time and money, settlement conferences can give the parties some certainty. It allows them to have more control over the outcome of their dispute.

“My experience is most lawyers don't want to go to trial because there are so many variables," Finlay said. “You don’t know where jurors are coming from, and you don't know who your trial judge is going to be. Will the judge or jury believe your witnesses?

“So if you can arrive at a fair settlement for both sides, you'd be happy to do it.”

Trials also can be very stressful, Finlay said, and alternative dispute methods can help people avoid unwanted anxiety.

Budget cuts have caused San Diego Superior Court to cut hours and shutter courtrooms, extending an already long wait for a trial date.

“The system could not handle all the cases that are filed (without mediation),” Finlay said.

She said local attorneys know the problem the courts are facing and have been "wonderful" in volunteering their time to help reduce the backlog.

"Lawyers and the bar (association) have stepped up," Finlay said.

"They know there are not enough resources, and that the cases have stacked up."

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