Let's Get Honest! Absolutely Uncommon Analysis of Family & Conciliation Courts' Operations, Practices, & History

(only makes sense from context of last post, and is simply explanatory note on my part, here).

In the middle of last published post, I began talking about what is a “Founder and Executive Director” of (fill in the blank with corporation name)  and the concept of Corporation / obtaining Nonprofit status for readers like, myself, who simply may not be thinking very much about this while struggling, for example, in life — or in the courts.  Even though every single day of our lives we do business with SOMEONE or SOMETHING by virtue of living her.

Lawyers and others think about this and know it innately — or should anyhow — because to practice they first have to pass the bar and usually then set up a business (or become an associate, partner, or contract attorney) and hence do business under a firm name, or LLP.  They then also often for back-end accessory corporations, and JOIN associations, which are themselves (business-wise) usually nonprofits.  The AFCC is a nonprofit.  The APA is a nonprofit.  etc.

Because of time constraints just now, I wanted to post the different designations of CDRC & CDR — which I just found out has lost its corporate status as of, now (California Secretary of State).  However the database doesn’t say WHEN.  But I note that as of 2003, it was doing business and this is an explanatory inset from the 2003 conference I linked to on the last post.

That’s the context.  Just deal with it, OK?

ABOUT THE CONFERENCE HOSTS

Every November since 1994, CDRC has hosted a fall conference to provide a venue for neutrals, program administrators, and policy-makers to discuss key ADR topics, such as confidentiality, disclosure of conflicts of interest, compensation of neutrals, fairness of mandatory processes, and standards and ethics. CDRI began to help plan and support the conference in 1998, which has since been expanded to a full day. Now with CDRI’s move to the University of San Francisco, the conference is being expanded again, to more than double the number of sessions devoted to arbitration, mediation, and the use of ADR by corporations and public agencies. This has been made possible by two USF organizations, the Leo T. McCarthy Center for Public Service and the Common Good and the USF Law Review. Here are brief descriptions about each of these organizations.

CDRC

The California Dispute Resolution Council (CDRC) was organized in 1994 to provide a unified voice for those in the conflict resolution field in policymaking settings throughout the state.Through the expertise of its diverse membership and a registered lobbyist, CDRC provides informed opinions on proposed legislation and develops principles and standards that shape dispute resolution policy in the state.

CDRI (@ 2003)

The California Dispute Resolution Institute (CDRI) is a nonprofit organization** dedicated to understanding and improving alternative or appropriate dispute resolution (ADR) processes through research, educational programs, and information dissemination for the benefit of policymakers, administrators, providers, and consumers of ADR services. CDRI was founded in 1996 and joined the Leo T. McCarthy Center for Public Service and the Common Good at the University of San Francisco in April of 2003 as a distinct program within the Center.

USF Law Review

The School of Law publishes the University of San Francisco Law Review, which has an extensive circulation among attorneys and libraries throughout the nation. Student members conduct independent research, prepare notes and comments for publication, and edit both the work of their fellow students and articles and book reviews submitted by faculty members, other scholars and attorneys. Members are elected by the student Board of Editors on the basis of academic achievement and a writing competition conducted by the Review.

McCarthy Center, University of San Francisco

The Leo T. McCarthy Center for Public Service and the Common Good (McCarthy Center) was founded at USF in September of 2002. The McCarthy Center’s mission is to inspire and prepare USF students and citizens to pursue lives and careers of ethical public service through education, service and research in public policy-making and programs for the common good.

***to be checked out ASAP.  WAIT A MINUTE– it was formed in 1996 — and dissolved in 2008?  What about tax returns?  None required, no real income — what’s the deal (no membership fees???)….

I just quickly checked the ein# — and nothing shows under the OAG site or “990finder” which usually does. Til further notice, information solicited — did this group every sell services, trainings, conferences — and was any public billed for membership fees?  Or did they exist as a non-income earning (above $25K etc.) or otherwise completely exempt nonprofit

Or did we just not notice.  Feedback welcome.  Do some lookups, OK?  thanks. Til further notice, a definite red flag.  Also, FYI, this habit is Not unknown among the same circles in California!

The Hewlett Foundation gave this group $300K in the year 2000 — where is its tax return?

http://www.hewlett.org/grants/1300   weBSITE from that donation is “Error not found.” but now shows the logo with the fine print ‘California Dispute Resolution COUNCIL”  Check it out.

IT APPEARS THAT THE COUNCIL (NOT THE INSTITUTE) WAS A PREFERRED ORGAN OF LOBBYING ETC.  HERE’S ONLY PART OF A VERY LONG WEBPAGE DESCRIBING THIS.  I’M CURIOUS IF ANY (AT ALL) MENTION OF THE FAMILY LAW ARENA & CUSTODY WAS BROUGHT UP.  NOTICE THE HISTORY.  AGAIN, IT’S A VERY LONG PAGE — AND A VERY BROAD TOPIC, TOO:

HISTORY of the
CALIFORNIA DISPUTE RESOLUTION COUNCIL  (BELOW HERE IS CUT & PASTE FROM THE LINK).

(A more detailed history is available from the CDRC.)

Introduction

In November, 1992, thirty-five ADR pioneers from all over California attended a retreat to brainstorm and address future needs in the emerging field. This group included Bob Barrett, Randy Lowry (director of the Institute for Dispute Resolution at Pepperdine University), Ron Kelly, Ramon Raugust, and the late Don Weckstein of the University of San Diego.  These and others represented court-connected and other established ADR programs in a variety of arenas, including family, environmental, public policy, commercial, and civil.

Brainstorming resulted in listing more than forty needs in the dispute resolution field, including the area of legislation.  On the one hand, there was an identified need for a “cohesive voice for legislation, research about proposals, updating developments as they move through the legislation process, and education of legislators and staffs about the implications of different formulations of laws.” On the other hand, the group saw the need to keep practitioners informed regarding legislation that had the potential to impact their practices and programs.

1992-1993: Early Visions

After the retreat, the number of interested participants expanded.  Organizations such as the American Arbitration Association, the California Judicial Council, the State Bar Association’s staff on Consumer Affairs, the three local chapters of the Society of Professionals in Dispute Resolution, the Southern California Mediation Association, the Northern California Mediation Association, county bar associations, and a number of community-based mediation programs joined the effort.

During a series of meetings that followed, the notion emerged that some of the needs would require a statewide organization with a focused purpose and mission if there were to be effective legislative advocacy for ADR. Legislative monitoring would require a day-to-day presence in Sacramento. In addition an organization was necessary to act quickly and draw ideas and views from a broad cross-section of the dispute resolution field in the state.

Key principles emerged:

• The new organization would be inclusive, reaching out to all providers of dispute resolution services in all parts of the state;

• The organization would concern itself with arbitration as well as mediation and other forms of ADR; and,

• It would promote the interests of consumers as well as providers of dispute resolution services.

As the group had begun to track bills, there were many with important implications for ADR practice in the state. Several bills required close attention, focusing on mandatory mediation (SB 401) and proposing to set standards for these programs, encouraging mediation directed at reducing racial and ethnic tensions, and increasing funding for community mediation programs.

1994: Organizing, Electing Leaders, and Seeking Members

At the first meeting of the new CDRC on March 20, 1994, in Sacramento, the group elected board members and officers and began planning how to implement a membership program. Bob Barrett was elected as the first president. In response to Ron Kelly’s suggestion, the group also adopted five brief “Consensus Points” to guide its lobbying:

1.   Definition. The mediation process should be clearly defined in substantially the form that follows: ”Mediation” means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.”

2.   Funding. Mediation should be available to all parties in all types of cases, regardless of the parties’ ability to pay.

3.   Education. The courts, public agencies, and dispute resolution providers should share responsibility for furnishing information to the public, the bar, judges, court and government personnel, and others concerning dispute resolution processes, the availability of programs, the differences among various processes, the possibility of savings in cost and time, and the consequences of participation in such processes.

4.   Declarations and Findings. No mediator should be required to submit, and no court should consider, any declaration or finding of any kind by a mediator regarding a case, beyond a required statement of agreement or non-agreement, unless all parties in the mediation expressly agree in writing.

5.   Qualifications for Dispute Resolution Providers. Qualification criteria should be based on training, experience, and performance, not on the attainment of any particular academic degree or professional license.

CDRC began to track 12 bills, dealing with both mediation and arbitration. The board decided to support two, one encouraging the use of mediation in land use cases, which passed and was signed by the governor, and the other to enlarge funding for community mediation programs, which was passed, but vetoed by the governor.

At a strategic planning retreat in San Diego on September 11-12, 1994, the CDRC board set as a goal that CDRC should become the primary contact for legislators on dispute resolution topics. The board hoped that CDRC would be routinely consulted by legislative staff and others around the state on policy topics.  The board clarified procedures and policies, and resolved that only the president or the president’s designee could speak for the organization.

In November, the board clarified the procedures for studying and rapidly coming to positions on bills, either by vote of the full board or the executive committee. The year ended with about 200 active members and plans for implementing the vision for an effective advocacy organization.

1995: Establishing Procedures and Hiring a Lobbyist

Lauren Burton, then Executive Director of the Los Angeles County Bar Association Dispute Resolution Services, began her term as president on January 1, 1995. The first order of business was the hiring of a lobbyist for the organization. Fortunately, an excellent candidate was available, Donne Brownsey, who was just beginning a new lobbying firm and looking for “anchor” clients. She was an experienced legislative staffer who had excellent relationships with members on both sides of the aisle. It was also important that she had taken mediation training, which helped assure that she knew and shared the values underlying the practice of mediation and arbitration. She was an outstanding choice, and the relationship continues with a contract that is renewed annually by mutual agreement.

With a headline announcing: “Bill Tsunami Hits ADR Shores,” CDRC’s March 1995 Newsletterreported there were 74 measures that mentioned the words “mediation” or “arbitration”.

Among the bills were arbitration measures extending judicial immunity for arbitrators and defining the scope of appeal for arbitration awards. In addition, Dennis Sharp, a vice president of the American Arbitration Association and Jim Madison, a well-known arbitrator, developed language for a bill that CDRC could sponsor to “clean up” the arbitrator disclosure legislation that had been passed the year before.

Also included among the flood of bills were proposals to establish a mandatory mediation program for selected counties and to create a voluntary credentialing program. That proposal raised many concerns among some in the dispute resolution field.

The CDRC “Consensus Points” were expanded by the Committee on Qualifications and Standards, chaired by Don Weckstein, into a comprehensive listing of CDRC Principles on topics expected to come up sooner or later in the legislature. These principles poised CDRC to react rapidly when new legislative proposals came to its attention, and firmly established CDRC as a “principle driven” organization.

It was important to CDRC that its approach to the proposed credentialing legislation would be seen as deliberative and principled. A special committee, chaired by Bob Barrett, held meetings around the state and prepared detailed recommendations for the CDRC board regarding the measure.

CDRC also, for the first time weighed in on a case, Engalla v. Permanente Medical Group, Inc. (1995) 43 Cal.Rptr.2d 621. CDRC requested review by the California Supreme Court of the appellate decision that had approved a one-sided, but mandatory and binding arbitration system in the health care field. The Supreme Court granted review and reversed the decision in Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951.

1996: Enhancing CDRC’s Reputation and Building Capacity

Ken Bryant, a commercial mediator and arbitrator from San Jose, took over as president in 1996. Membership had grown to nearly 500, and the budget had risen to $46,000, most of which was used to retain Donne Brownsey.

The most pressing legislative challenges included the review of more than 85 bills mentioning mediation or arbitration and the development of positions on the three bills introduced by Senator Russell in 1995 and held over as “two-year” bills.

The three bills proposed a voluntary mediator certification program, suggested a requirement that attorneys advise clients about ADR in all civil litigations, and required judges to hold early status conferences in all civil cases to consider mediation. Senator Russell wanted to promote greater use of dispute resolution, but many concerns had been identified with specific provisions of the bills. CDRC carefully studied each proposal and sought extensive input from its members, especially on the certification bill. Positions were prepared in order to describe the implications of the bills at legislative hearings. In the end, none of the three bills passed.

CDRC, however, was successful in sponsoring its first bill seeking to increase funding for mediation programs under the Dispute Resolution Programs Act. Lauren Burton drafted the bill’s language, working closely with Los Angeles County’s legislative staff, and it was introduced by Assemblyman Antonio Villaraigosa of Los Angeles. With extensive efforts by Donne Brownsey and DRPA-supported organizations throughout the state, the bill passed and was signed by the Governor.

Inspired by Dennis Sharp, president-elect, CDRC also began its first annual statewide dialogue programs, held during March in four locations: Sacramento, Los Angeles, Anaheim, and San Diego. More than 300 dispute resolution practitioners participated, with lively facilitated discussions on such issues as mediator certification, court-referred mediation, arbitrator immunity, arbitration vacatur grounds, DRPA funding, lawyer obligations to clients concerning advising about ADR, and arbitrator disclosure requirements.

1997: Expanding Membership and Developing Infrastructure

Dennis Sharp became president in 1997 and devoted much attention to building the membership of CDRC and improving CDRC’s administrative capacity. Membership grew to 600 individual members and 150 organizational members. The budget increased again, to $60,000 and special contributions were also received to supplement membership dues revenues.

A key benefit of membership was the publication of CDRC’s first Directory, which also included a copy of the CDRC Principles and a list of committee rosters and CDRC accomplishments.

CDRC became very involved in two key legislative projects. The first involved the efforts of the California Law Revision Commission to modify and clarify the law applying to mediator confidentiality in the state. Ron Kelly, on behalf of CDRC, closely followed the development of this comprehensive new statute, which successfully codified strong protections for confidentiality of the mediation process, explicitly protecting mediators from compelled disclosure of mediation communications, the substance of mediation participation, or efforts to set up a mediation in later civil litigation. CDRC played an active role in commenting on the specific legislative language that evolved. The second key proposal concerned arbitrator disclosures and CDRC successfully sponsored arbitrator disclosure cleanup legislation.

Finally, in the wake of the defeat of mediator certification in 1996, CDRC began an effort to develop a comprehensive set of standards that could govern mediation practice and that would be a model for courts, counties, and mediation programs to adopt. It was believed that the “model standards” approach would be preferable to legislation that would be difficult to enact and even more difficult to amend or modify as needed in later years. Lee Jay Berman, a Los Angeles mediator, chaired a special committee to prepare a draft set of standards. The committee’s drafts were widely circulated within the state and improved through such consultation, and attracted a substantial list of endorsers.

1998: Lobbying Effectively and Looking Beyond Legislation

In 1998 Norm Brand, an arbitrator and mediator from San Francisco, began his term as president. A prominent legislative concern was whether disclosure requirements for mediators should be similar to those enacted earlier for arbitrators. CDRC representatives met several times during the fall of 1998 with the staff of the Assembly Judiciary Committee to discuss this complicated area. Due in part to the success of CDRC in articulating the difficulty of crafting appropriate language, no legislation emerged from the Committee.

The most important development during the year was the California Supreme Court’s decision inBirbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, holding that representation of a party in arbitration constituted the practice of law. CDRC advocated the standard of the international arbitration statute, permitting representation of a party in arbitration by anyone that party chooses. Despite those efforts, Birbrower remains the California rule.

CDRC also produced a widely endorsed draft of Standards of Practice for California Mediators, which were circulated for use by courts, counties, and mediation programs. They have since been adopted by two programs, have served as a model for several more programs, and are under consideration for adoption in many more locations throughout the state.

1999: Increasing Administrative Support

Liz O’Brien, executive director of the San Diego Mediation Center, became president of CDRC in 1999. One of the key issues during the year was the emergence of a series of proposed drafts of a Uniform Mediation Act being produced by committees of the American Bar Association and the National Conference of Commissioners on Uniform State Laws. The early drafts of that proposal included language that, if enacted in California, would weaken the protections for mediation confidentiality. John Seitman, an arbitrator and mediator from San Diego and formerly president of the state bar, chaired a committee that studied the draft proposal and prepared formal comments on it. Several CDRC representatives also met with the ABA/NCCUSL drafting committees in December in Monterey. In addition, CDRC sponsored well-attended dialogue sessions in May to focus on the Uniform Mediation Act draft.

On October 15, 1999, CDRC held its annual conference in the San Francisco area featuring discussions about where mediation and arbitration were going, dispute resolution research needs, and the Judicial Council’s Task Force report on ADR and its implications for the courts, litigants, and the public. The conference also highlighted legislative developments, and sought membership input on priorities for attention in the upcoming year.