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1. PREFACE AND PROPHYLAXIS
The use of Mediation as a primary means of resolving disputes, as practiced in the United States since the early 1970’s, has been thoroughly institutionalized as a part of civil litigation in many parts of the world. Even in Bhutan, closed for centuries to the outside world, mediators, attorneys, legal scholars and judges from the US have been working closely with the government of the erstwhile kingdom to train new lawyers and courts in “mediation” as that country constructs an adversarial civil justice system. Where, until recently, there were fewer lawyers than members of the royal family, the relatively new constitution mandates mediation in civil litigation.
Whether expressly or implicitly, practitioners and judicial and non-governmental organizations the world over make assertions about quality in mediation. Trainers teach best practices. International professional associations empower groups of practitioners, scholars and theoreticians to study the question of quality and to issue reports. Some mediation organizations have even developed coding instruments for use in evaluating mediators while observing the mediators in the course of the mediation of real disputes. It is to be expected now that mediators who serve in the litigated case will have completed 40 hours of training and that, during that training, they will have been “coached,” during role playing exercises on how they could have done things better.
The basic thesis of this paper is that a rigorous and intellectually honest approach to understanding “how to mediate well” must be based on empirically verifiable information and not on untested assumptions or dogmatic beliefs about “what makes good mediation.” Courts that sponsor mediation programs and those that mandate the use of mediation ought to base their assessment of the programs and mediators on empirically verifiable information on mediator behaviors and tactics. Mediation trainers ought to ground their teaching in empirically derived knowledge.
Mediation, of course, in its general sense, has been a part of human culture for eons. There are references to dispute resolution processes in which a “third party” helps people in conflict to “settle their differences” in non-adjudicatory ways in many ancient texts. Scholars and researchers have documented a wide variety of “indigenous,” non-adversarial problem solving methods in populations that live today without the trappings of life in the “developed world.” But the emergence of a profession called “mediator” and, in many jurisdictions, the enactment of rules and statutes that encourage and even mandate the use of mediation is, taking a broad view of history, brand new.
The recent history of mediation, as we now understand its basic practice, traces its roots to two streams in our culture’s approach to conflict. The headwaters of one stream spring from the socio-political changes that occurred in “the West” in the 60’s. The other flows from the creation, by law and judicial action, of previously unrecognized classes of rights, for the violation of which, remedies were to be found in the court, leading to a correlative explosion of formal litigation. This “flood of litigation” strained the resources of the judicial institutions that had been designed and built in earlier times. There arose a hue and cry to do something about the “clogged dockets” and to stem the tide of wasted precious resources which otherwise might have been harnessed to the creation of value. In the eyes of many floaters in both streams litigation cost too much, took too long and often left those involved with less than what they started with.
I have had hundreds of hours of mediation training myself. I’ve been a trainer and a coach and have suggested to trainees that they try to do things differently because “it would be better.” In my current position as administrator of an appellate mediation program I choose cases for mediation and appoint mediators to handle the cases. I usually feel like I know what I’m doing but am rarely asked why and, to be blunt, when I have been asked or if I ask myself I frequently find that I am basing my assertions on a set of assumptions, many of which have never been empirically tested.
When I was appointed to this position and realized that I would be choosing mediators (many of whom I had never even met) to work with lawyers and litigants whom I had never met I began to seriously confront the epistemological conundrum that is, I think, endemic to our profession. We believe we know what is the right thing to do as mediator in any circumstance most of the time. We believe we can explain why and we believe we can help others to learn “how to do it.” But, I am concerned that our beliefs are not shared equally across the spectrum of mediation professionals and that they are founded more on socio-political and philosophical footings than on empirically derived knowledge.
In order to ground our work more firmly in knowledge as opposed to belief, it is useful to review how we got here. There is a history to understand and the issues are susceptible of clarification. There is a need, I think, to do this work as mediation becomes ever more intrinsic to the management of disputes. This is particularly important for the judiciary and for governance. There are some pressing current concerns about Court mediation programs (especially here in California.) To speak about quality, we need to agree on what those concerns are and establish a shared understanding of what we will mean by “mediation,” “success” and “quality.”
Ultimately we need to understand the answer to two questions:
The answer to the first question may be idiosyncratic to the parties and the mediator or the convener of mediation (a court, e.g.) That is, some parties may be interested in increased understanding and better communication while others want their dispute settled or both. Some court programs and some litigators may care only that the case is settled. The answer to the second question, though, is much more difficult. It depends on the purpose mediation is to serve. If understanding is the goal then the question is “what should mediators do to help people understand each other better?” If settlement is the goal, then, we ask “what should mediators do to help people settle their disputes?” To answer these questions, we need to examine mediator behavior. What do mediators do? Do those behaviors achieve the desired results or not?
My hope is that this paper will serve several purposes. First I hope the paper will be useful as a background briefing for those interested in both mediation quality and court mediation quality assurance. Second, this is a call to those in our profession to sharpen our conversation about mediation, to raise the bar on what we take to be “true” and, as a part of this call, to be a context document for the “mini-conference” on mediation research which will be part of the ABA Section on Dispute Resolution’s annual conference in Washington, D.C. in April 2012.
I have a great concern that this paper not be misconstrued as advocating that settlement should be the primary goal of mediation. One of my main theses is, though, that studying how mediators get people to settle is a really good idea. Anyone familiar with the extant social science literature on mediation knows that people feel the process is fairer and “nicer” if attention is paid to whether it affords the parties robust opportunity to tell their stories, to increase understanding and to the achievement of other important social goods. I share those values and know that processes that are supportive of those ends make mediation participants happier and may even help to make this a better world. I suspect that, if mediators didn’t work toward those goals while, at the same time, trying to achieve settlement, there would be a lot less mediation.
Ultimately, though, if cases didn’t settle in mediation I don’t think we would have civil and family law mediation programs in courts, there would be no mediation industry and the ABA Section on Dispute Resolution would be half the size it is. So, no, I don’t believe that settlement ought to be the primary social good delivered by mediation nor do I believe that it is “more important” in many ways than that people feel the process was fair, that the outcome is fair, that it enhances the participants’ views of the courts' integrity and beneficence, etc. I do think it is worth finding out if achieving those goals also enhances the likelihood of settlement. I believe that studying settlement is a good idea because it is easier to objectively measure and I'm not sure that we really even know “how to do it.”
It is possible that more research may determine that the factors that increase settlement might not have equally positive effects on other goals. So, if we learn that behavior X makes settlement more likely, we will also need to determine what effect X has on the achievement of those other social goods. Threatening the participants with waterboarding if they don’t settl may be a good way to get cases resolved but it probably wouldn’t work to make people feel they had a chance to experience self determination.
Hopefully, we can uncover empirically proven interventions that enhance the likelihood of settlement and the other social goods simultaneously. What this means is that we need more robust research into how mediators can effectively intervene to accomplish the whole range of identified social goods that are derived from mediation.
Those in search of reliable and verifiable information upon which to evaluate the quality of court mediation programs face at least two broad epistemological tensions:
A good argument can be made that the “mediation community” operates according to a set of assumptions and beliefs about mediation that have, in some sense, risen to the status of “received wisdom.”
As a “profession” it is imperative that we figure out how best to verify that what we believe to be true and what we believe to be useful really are true and useful things. E.g., is it true that mediators succeed when the parties feel heard? Does the fact that parties report feeling heard lead them to resolution of their disputes? If a mediator or a mediation program values settlement of disputes, should the mediators try to persuade litigants to adopt any specific set of behaviors? If a court mediation program is dedicated to helping the parties understand each other better, to have a chance to “tell their story” is there any acceptable role for persuasion by the mediator at all?
3. MEDIATION AND ITS PLACE IN THE COURTS
a. The genesis of the modern mediation movement
The modern mediation movement finds its roots in the political and philosophical principles and the politics of the 1960’s. These principles were succinctly summarized by the then ubiquitous cris de couer (or, as some had it, cris de guerre) “Power to the People.” Two essential tributaries fed what eventually became the mediation river in which so many of us now swim: community mediation programs for resolution of civil disputes and divorce mediation. Both originated in the belief that disputes belonged to the disputants. Based on this belief the early adopters believed that the people most likely to be able to help would be members of the community itself.
At the same time, American courtrooms were beginning to experience serious challenges in handling their civil case loads. This was the era in which the “trial court delay reduction” movement took root. The social and political causes of the challenges to the judiciary that necessitated this new approach to civil litigation are beyond the scope of this document. It is important, however, that we keep this context in mind as we assess the role that mediation plays in the courts now and how to evaluate both court program quality and the quality of court connected mediation.
b. Family Law Mediation – the beginning of court connected mediation
Mediation first began to play a significant role in the family law area of general civil litigation. Jay Folberg wrote about the development of the family law mediation practice in the very first article of the very first issue of the Mediation Quarterly in September 1983. Although Folberg was then recounting what was “recent history,” the piece seems, now, in retrospect, to be virtually contemporaneous with the time. The following excerpt from that article is a brief overview of the genesis of mediation in the U.S. and provides a glimpse of practice, particularly family mediation practice, in the 1960s and 1970s.
“Acceptance of divorce as a common life event also seemed to grow. Domestic relations case filings soared. The dramatic increase in the divorce rate was accompanied by sweeping changes in the substantive law of divorce. The most significant of these changes was the almost universal acceptance in this country of some form of no-fault divorce. In most states, the decision to end a marriage became, in effect, a matter of private choice. Alimony based on fault and entitlement began to give way to support based on need and ability to pay. In an increasing number of states, rigid rules of property division were replaced by considerations of equity and fairness dependent on the unique circumstances of the parties. There were, however, few changes in the procedural law of divorce. Lawyers, judges, and experts continued to intervene in divorce with the same procedural shell that existed prior to the no-fault revolution.
“In the early 1970s, several attorneys [and other professionals] took the newly emerging no-fault divorce legislation to heart and began to offer no-fault legal services in dissolution cases. These attorneys proposed a non-adversarial mediation model, in which they advised both parties on issues of money and children and urged separate legal counsel to advise the clients concerning their individual interests. Other attorneys saw mediation as an opportunity to use their skills in a non-lawyer capacity, in which they refrained from giving legal advice.”
In time, attorneys, overcoming professional ethics issues of conflict of interest arising out of dual representation, began to offer their services to married couples seeking a way to divorce that would cause the least disruption and manage the conflict in the most constructive ways possible. The fact that mediation services provided by one practitioner that were designed to help the couple reach separation and custody agreement appeared to be cheaper and less emotionally destructive than litigation was in large part responsible for the growth of this form of dispute resolution.
c. Civil dispute mediation
The community mediation programs of the period enshrined the principles of party participation--empowerment, creativity, education, and self-determination. They relied on non-professional and unpaid volunteers from the community to help community members resolve conflict. The mediators served as mediators because they were neighbors and part of the community. The disputants negotiated everything, including the norms by which they would evaluate the options for resolution generated in the process.
Kimberlee K. Kovach in her article Privatization of Dispute Resolution: In the Spirit of Pound, But Mission Incomplete: Lessons Learned and a Possible Blueprint for the Future tells how, this non-professional, community centered process which functioned at most in the shadow of the law, eventually became an institutionalized component of modern litigation.
“Early discussions during the evolution of these programs centered on whether individuals would go to mediation on their own; the answer was “rarely.” The adage mentioned frequently throughout the early eighties in dispute resolution circles was, “If you build it, they will come.” But they did not. Someone or something of power had to mandate or strongly suggest the use of mediation. The legal system took the initiative and has since been a critical factor in most ADR schemes.”
Kovach explains the evolution of court mediation programs as the melding of two streams of dispute resolution thinking: the community mediation movement and the constantly accelerating demands placed on the country’s judicial systems to resolve more and more disputes. In 1976, a symposium was held which has become known as the “Pound Conference,” to address the growing challenge to the ability of the judiciary to expeditiously and economically handle the explosion of both civil and criminal litigation our country was experiencing. Professor Frank Sander (who gave a keynote address to that symposium) an early student of alternative dispute resolution processes and intrigued by the process of mediation, proposed the multi-door courthouse. One of the doors he proposed to be added to the marble entryways led directly to the mediation table.
The introduction of mediation to the adversarial civil justice system was, in retrospect, a momentous event. It changed the way litigators operate and, to the chagrin of some, it changed the notion of exactly what mediation was supposed to be and how it was supposed to be done. Perhaps even more importantly to some, it challenged the core values and principles that had been developed when mediation was introduced as a way of returning power over conflict resolution to the people who “owned” the conflict.
Kovach writes that when the mediation community was faced with the challenge of dealing with a system that was adversarial and contentious by its very nature, it “embraced these approaches and changed its processes to fit within the adversarial system.” She notes that studies of mediation programs asked different questions in the community mediation world than in court connected programs.
“Early evaluations of community mediation centers examined, among other things, party satisfaction. Other studies, such as the empirical research conducted in 1990 by the Rand Corporation, focused on the courts and efficiency concerns.”
What research has been done on “efficiency,” according to Kovach, has not adequately measured the intangible benefits of “creative solutions, the significance of self-determination, and the power of an apology... Such results should not be unexpected since mediation was sold to the courts as a method of saving time and money...”
As more and more courts began to look for ways to encourage and, in some cases, mandate the use of mediation in civil cases, the practice of mediation began to evolve into something that its early, community based and family mediation practitioners had not envisioned. At least in the community mediation model, the law was not the predominant source of normative guideposts; the parties and the mediators strove to create agreements that met their interests but were not constrained by the types of analysis and remedies that might be available to them in court. Kovach continues:
“Limiting the view of mediation to a process focused almost exclusively on the resolution of legal disputes, contributed to the transformation of the process into a quasi-legal one...
“Interestingly, it does not appear that most mediation advocates or courts acknowledged the irony--and potential conflict--created by transplanting a process which rejects the relevance of the law into the very institution which conditions access upon an effective invocation of the law. Further, this party-centered process was transplanted into an institution which tended to constrict parties' participation in its processes.... Viewed in this way, it was inevitable that the mediation process had to adapt in order to survive in its new home. In addition to reliance on precedent, the strength of the status quo is also quite powerful in a rule-based legal system. Interestingly, this is one of the factors noted thirty years ago by Sander that might obstruct the advancement of suggested innovations in courts. Because mediation was so dissimilar to court proceedings, with little to no concern for rules or precedent, many lawyers and judges were unsure of how to approach the process. As a result, many of the early valuable goals of mediation vanished because they were incompatible with traditional court ideology.
“Legalization” of a dispute replaces the more human element with considerations of relevancy, admissibility, and the proof or disproof of legal constructs.”
In other words, the analytical framework used by lawyers and courts was superimposed on the problems between mediation participants trapping the mediative dialogue. The parties’ disputes became “cases” and their bargaining at mediation became dominated, if not entirely focused on, risk assessment and evaluation of the likely outcome in courts. This necessitated a reductive approach to problem definition, to solution finding and to dialogue itself.
Mediation participants began arriving with lawyers who brought with them cases instead of disputes. The analytical framework in mediation had to shift because all of the participants had internalized the framework that is used in litigation: causes of action, elements, relevant evidence, duty, causation etc.7 Once mediation became dominated by the cognitive paradigms inherent in an adversarial, rule and rights-based process housed at the court there was an inevitable “legalization” of the process. Lawyers and judges became the primary mediators. Courts began to mandate participation. Rules were enacted, courts began to enforce the new rules about mediation and litigation ensued over procedural issues in mediation.
Kovach addresses the challenge now being faced by court ADR administrators whose philosophical roots are in the mediation movement as much as if not more than in the justice system:
“Contemporary literature has questioned, in some depth, the justice aspects of mediation... On one hand, supporters of party self-determination and empowerment advocate that justice is reached whenever and nearly however the parties decide. In other words, the parties themselves are determiners of justice. This view is consistent with the empowerment model of mediation or proponents of party self-determination. An alternative perspective contends that societal or legal norms are indispensable with justice. A need or even requirement exists to use normative standards in order to determine appropriate or even permissible resolution. These scholars contend that without norms private dispute resolution is likely to be less equitable, fair, or just.”
The cultural and political left of the late 60s and early 70s held dear the idea that two people could, through dialogue and non-violent communication, reach a resolution to a problem that they “owned.” The notion that disputants might not be permitted to resolve their own disputes on their own terms would have seemed ludicrous. That idea epitomizes the problems that the left had identified with our political and cultural institutions: undesired hegemony over the lives of citizens by the power elite whose values were inimical to the “revolution in consciousness” that was then a part of the daily lives of millions of Americans.
Not a few mediation scholars have raised some of these concerns in research on “procedural justice.” In a recent article Is That All There Is?: “The Problem” In Court-Oriented Mediation, Len Riskin and Nancy Welsh address what they describe as the “gap between the expansive potential of mediation and the constricted reality of most court-oriented mediation.”
“In civil proceedings, the “problem” defined by the pleadings must state a sufficiently recognizable legal claim...
“But mediation is an entirely different story--or at least that has been a dominant theory. Conventional wisdom among a segment of influential commentators on mediation holds that the process has several capacities that courts lack. It can empower the parties to work together in a respectful and productive manner; allow a focus on the parties' real needs and interests, in addition to their legal claims; offer a flexible process customized to fit the parties' situation, emotions, and interests; and encourage the development of a range of creative and responsive outcomes. In appropriate situations, mediation may even enable the parties to heal or restructure their relationships, both personal and professional...
“[Mediation is now routinely offered or even mandated in civil litigation in jurisdictions all over the world but] Available evidence is mixed at best, however, regarding whether these mediation sessions fulfill the expansive promise described above.”
So, today, in a wide variety of dispute resolution settings, including in courts, regulatory agencies, private organizations such as hospitals, universities and multi-national corporations, and in non-profit community mediation centers all over the world, the participants in a negotiation are likely to work with a mediator. But mediators in many of these contexts confront this tension: there is the “promise” of a non-adversarial dispute resolution methodology that encourages the development of agreements based on the parties’ own mutually satisfying standards and there is the procedural and conceptual framework in which mediation occurs that values a more “aggressive” or “adversarial” process in which rights and duties, predictions of success in the arena, and legalistic risk assessment and framing may often limit what is said and done.
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