Is a Fee Increase on the Way for Court-Referred Mediators?
BY DOUGLAS FURLONG, ESQ. AND CAMPBELL KILLEFER, ESQ.
HOW MANY INDIVIDUALS WHO ARE involved in Maryland’s judicial system have received no increase in billing rates over the past 20 years? Judges and court personnel in the circuit courts have benefited from salary increases. Private attorneys who practice in the circuit courts have increased their hourly fees and income over the past 20 years. Essentially, all individuals and corporate representatives involved as parties in civil litigation have also received increases in income.
The surprising answer is that only court-referred mediators in civil, non-domestic cases have received no hourly fee increase in 20 years. Those mediators are still limited to the $200/hour rate set in 2005. There is now a movement underway to increase the fees under Title 17 that circuit courts may permit mediators to charge for their services.
Background
The MSBA Alternative Dispute Resolution (ADR) Section Council (the ADR section council) established a committee to study the amount of mediator fees that should be authorized for non-domestic civil case mediations ordered by Maryland circuit courts pursuant
to Md. Rules 17-101, et seq. and 17-201, et seq. (the fee case program). The committee members were Douglas Furlong, Esq., Neil Bixler, Esq., Alan Gross, Esq., and Campbell Killefer, Esq. (the committee), who collectively have over 85 years' experience mediating a variety of civil cases in Maryland.
The committee’s charge was to review the history and current status of the fees permitted for fee case program cases, determine whether an increase in the permitted fees is, in the committee’s judgment, warranted, and, if warranted, make a recommendation regarding such fees. After months of collecting data and analyzing potential alternatives, the committee prepared an eight-page report and recommendations, which were approved by the ADR section council.
need not be attorneys, but the vast majority are attorneys admitted to practice in Maryland.
Between 1997 and 2005, roster mediators were permitted to charge $150 per hour for the first two hours of mediation, with the fees split evenly between the parties. It is common for mediations to last beyond the first two hours, and, before 2005, roster mediators were also permitted to revert to a higher hourly rate after the first two hours of mediation, provided the parties consented. They could also charge for time spent pre-mediation reviewing the mediation materials submitted by the parties.
In 2005, the rules regarding fees for roster mediators were amended. The permitted hourly rate was raised to $200/hour. However, roster mediators
Court-referred mediators in civil, non-domestic cases have received no hourly fee increase in 20 years. Those mediators are still limited to the $200/hour rate set in 2005. There is now a movement underway to increase the fees under Title 17 that circuit courts may permit mediators to charge for their services.
Findings
The committee’s findings were based upon data provided by the Maryland Mediation And Conflict Resolution Office (MACRO), including its alternative dispute resolution data summary for fiscal year 2023, the Maryland judiciary’s government relations and public affairs office, the U.S. Bureau of Labor Statistics Inflation Calculator, Md. Rule 17, a search of similar programs in other states, meetings with attorneyusers, mediator-practitioners, and fee case program circuit court directors who regularly participate in fee case program cases, and the collective understanding of the members of the committee, whose experience dates from the inception of the fee case program in 1997. The committee made the following findings:
The fee case program began in 1997–98 when several Maryland Circuit Courts (most notably Baltimore City and Baltimore County Circuit Courts) began referring civil non-domestic cases to pre-approved roster mediators for a required maximum of two hours of fee-based mediation. Because parties could opt out of mediation by filing a routinely granted opt-out motion, the program was, and remains, voluntary.
Roster mediators have always been required to complete a 40-hour basic mediation training program, plus a certain number of continuous education training hours per year. Roster mediators
were no longer permitted to charge for time spent prior to the mediation reviewing the parties’ submissions. Also, roster mediators were prohibited from reverting to their standard hourly rate after the first two hours of meditation, even with the parties’ consent.
The time a mediator spends reviewing materials submitted by the parties can be substantial. Litigants will sometimes submit voluminous materials (e.g., medical records and reports; legal memoranda; disputed contracts, photographs, etc.), which the litigants fully expect the mediator to review before the mediation session, often not realizing that under the fee case program rules, the mediator cannot charge for that time. It is not uncommon for roster mediators to have one to three hours of uncompensated time spent interacting with counsel and reviewing mediation materials before the mediation session itself.
Experienced mediators in Maryland regularly charge $400–$600+ per hour for private mediations, split evenly between the parties. The charges generally include all time spent on the matter, including review time. This disparity in compensation when compared to the fee case program has contributed to a dearth of highly experienced mediators on the circuit court’s fee case program rosters.
The U.S. Department of Labor’s Inflation Calculator computes the current value of $200, when compared to 2005 dollars, to be $326.76. That represents a 63% increase in 20 years. It is the experience of the members of the committee, based on personal knowledge and discussions with numerous attorneys representing litigants in the fee case program, that virtually no attorney is charging their clients the same hourly rate as in 2005. Indeed, the hourly rate charged by most attorneys participating in the fee case program is in excess of $350/hour and often well in excess of $600/hour. Ironically, although a skilled mediator is essential to a successful mediation process, they are the least compensated participant in the process.
The committee considered whether raising the permitted mediator fees in fee case program cases would raise access-tojustice concerns and determined it would not. Under the current rules, which the committee does not recommend changing, no litigant is required to participate in a fee case program mediation. All litigants have the option of opting out. However, even more significantly, the vast majority of program participants are represented by counsel, with plaintiffs often represented on a contingent-fee basis and defendants often represented by counsel provided by their insurer. Thus, the litigants are already represented by counsel when a referral to mediation is made, and participation in mediation will not change that important fact. The mediation fee, which the parties split, is treated by counsel simply as a litigation expense incurred to effectuate a more cost-effective resolution than litigation and trial. The committee concluded that fostering a robust, effective fee case program, with experienced mediators incentivized to participate, actually increases access to justice by allowing litigants to resolve their disputes more costeffectively than continuing to pursue litigation.
It is essential to the ongoing utility and effectiveness of the fee case program that it continually recruits new, talented mediators while keeping experienced mediators on court rosters to handle the most complex, difficult cases. Fee stagnation, since 2005, for roster mediators has caused many of the most experienced and effective mediators to drop off court rosters, while also making it more difficult to recruit new talent. This, in turn, has damaged the reputations of the various fee case programs administered by the circuit courts, with many litigants opting out because they do not believe the mediation will be productive. The committee concluded that it is essential to the ongoing health and productivity of the fee case program that mediator fees be structured to attract and retain skilled mediators who receive compensation to prepare properly for and conduct effective court-referred mediations.
Parties and their counsel take court-referred mediations more seriously when they know the mediator is prepared and will conduct the mediation to the same level of professionalism as if the parties hired them directly. Increasing the professionalism of everyone involved in court-directed mediations, the mediators, counsel, and their clients, will likely increase the number of successful settlements, which will add considerably to the efficiency of the judicial process for all participants while freeing up the courts’ trial calendars for cases that truly need to be tried.
Recommendations
The committee recommended the following: that (1) the hourly rate approved by circuit court administrative judges for fee case program cases be amended to increase up to $350 per hour; (2) court-assigned mediators continue not to be compensated for their preparation time; and (3) all other aspects of the rules for compensating fee case program mediators remain unchanged.
On April 15, 2025, the MSBA Alternative Dispute Resolution Section Council adopted the committee’s findings and recommendations. It authorized the committee to take all appropriate steps to initiate discussions within the Maryland Judiciary to consider, adopt, and implement them. The committee met with Chief Justice Matthew Fader of the Supreme Court of Maryland and several active and retired judges of the Baltimore City Circuit Court regarding recommendations on a possible hourly fee increase. That process will continue. Stay tuned!
Douglas J. Furlong a 30+ year litigator, 25+ year mediator, and ADR Neutral, is the Principal of Furlong ADR, LLC. Furlong provides 3rd Party Neutral services to attorneys and their clients who desire a practical, efficient means of resolving their cases without the time, trouble, and expense of trial. Mr. Furlong handles all types of civil, non-domestic disputes and has mediated hundreds of cases to settlement while earning a reputation as a “go to” mediator for complex, seemingly intractable cases. He is a Member of the National Academy of Distinguished Neutrals.
Campbell Killefer is an experienced lawyer, mediator, and arbitrator. He offers the perspective of over 40 years of successful civil litigation, mediation and arbitration experience in private law practice and government service. He was a partner in two American Lawyer Top 100 law firms, including serving as the Chairman of an 80-lawyer litigation department. He later was appointed as Deputy Chief of the Civil Litigation Division of the Maryland Attorney General’s Office and has a unique government and private industry perspective.
