Divorce Mediation. Mandatory Mediation. Good Faith Medation. Alternative Dispute Resolution. Arbitration. These are all terms and programs that contemporary judicial systems are using to attempt to reduce overfilled court dockets, costly trials and the time it takes for parties to resolve their disputes.
Are these programs really helping to reduce conflict and court dockets, or are they harming parties by restricting access to traditional court litigation? Understanding how the courts use these programs, how these programs function, and the potential problems caused by these programs is key in evaluating their effectiveness or applicability for persons seeking conflict resolution - particularly in high-conflict divorces or custody disputes.
Alternative Dispute Resolution, ADR, has opened the door for parties in conflict to resolve their differences through non-traditional judicial forums. Over the past three decades, ADR has brought to light processes, or alternatives to litigation. These alternatives purport to enable parties to resolve their differences without the high cost associated with litigation while at the same time reducing court caseload dockets. The alternatives include a spectrum of potential processes that range from arbitration, which is mostly a traditional court-like procedure and process to resolve conflicts, to facilitative mediation, which is mostly a facilitative and cooperative process. Unlike arbitration where parties are subject to an arbitrator’s ruling on the conflict, mediation is an alternative dispute process that allows parties to resolve their conflict through voluntary participation in an interest-based process with a mediator acting in a non-judgmental role to facilitate the mediation process (Hamilton and Keck 3-11).
Recently, mediation has been brought to the spotlight and watchful eye of many state legal systems for its ability to resolve party disputes in divorce proceedings. Many states already have existing statutes that give their courts the latitude to order parties in conflict to mediation when deemed appropriate, and many of those have now turned to enacting additional legislation to order, or mandate, parties to mediation through ‘good-faith’ participation before the conflict is allowed before the court. Cases involving debt, foreclosure, domestic relations (divorce and child custody), victim offender and appellate issues have been the target of these new mandatory mediation laws (Heald 12-6).
The apparent benefits of mediation that enable party control, reduce court dockets, and reduce legal fees seem clear. However, the costs to those who do not reach a settlement, or who feel that their access to a traditional judicial process has been taken away through mandatory participation requirements, still need to be explored and evaluated. Additionally, mandatory mediation as opposed to traditional voluntary mediation raises additional ethical concerns including good faith participation, privacy and confidentiality, and enforceability of any attained agreements, and presents perhaps the ultimate question – do the benefits of mandatory mediation outweigh the costs?
I. Good-Faith Participation
Anthony M. Lanzone, who has contributed to many ADR panels, defines the mediation process as “a non-binding, confidential dispute resolution process before one or more third party neutrals. Individuals and entities generally participate in mediation on a voluntary basis in order to resolve their dispute through non-binding negotiations with the assistance of a third party neutral.” (391). Voluntary party participation and self-determination are key requirements of the “Model Standard of Conduct for Mediators”, enabling parties to have control of without the feeling of a coerced participation or forced obligation to reach an agreement (Hamilton and Keck 52-55). Opposing sides take positions as to the impact of replacing the traditional voluntary participation with a mandatory participation under the guise of a ‘good-faith’ participation requirement where parties are required to actively participate in mediation before fully litigating their case before a court.
‘Good faith’ mediation proponents support a defined end goal to increase the efficiency of the overall legal dispute process through forced participation in a mediation session. Opponents argue that forced participation in mediation not only conflicts with the quality processes of traditional mediation, but can actually result in a ‘bad faith’ participation (Boettger 19), or a negative impact on the parties where one or both parties actually participate half-heartedly just to get the process to the next procedural stage – litigation.
Dr. Ulrich Boettger in his journal article “Efficiency Versus Party Empowerment – Against A Good-Faith Requirement in Mandatory Mediation”, argues that good-faith requirements have helped the efficiency of courts by reducing their dockets (7), but the increase in court efficiency does not necessarily mean that a good-faith mediation has actually satisfied the participants desires, nor necessarily achieves the traditional goals of traditional mediation (10). He found that good-faith mandatory participation has decreased self-determination by allowing the judicial system to decide on the party’s participation in mediation and further argues that the end goal to increase court efficacy and party-empowerment through mandatory mediation has not succeeded, but rather turned many parties to treat mandatory mediation as just an extension of traditional procedural litigation, delaying access to litigation, and further entrenching the parties in their conflict posturing in opposition of the intended goals of good-faith mediation (11-14).
Proponents of good-faith mediation would offer a different perspective on the effectiveness of good-faith participation. Although they agree that there are some shortcomings, such as bad-faith participation (where one or both parties have no intention to honor a mediated agreement, or use the information for further legal leverage), they argue that good-faith participation does not interfere with the parties’ rights to seek further litigation, is in the parties’ best interest as an aid to avoid unnecessary and costly trials, and is no different from mandating parties to mandated arbitration (Mandatory Mediation, HLJ 1094). They further argue that bad-faith participation can be mitigated through passing legislation that 1) requires lawyers to participate as willing participants with their clients in mediation, 2) ensures the fairness of the process that prevents coercion and upholds the quality of process, and finally 3) ensures that good-faith requirements will not delay access to a further court litigation in the even that the mediation fails. (1095)
While proponents argue that the courts have the power to order participants to mediation just as they can to force parties to arbitration, they also propose that further rules must be applied to protect the process of mediation that foster party-empowerment in the resolution of their conflict. Opponents argue that by directly neglecting the voluntary nature of mediation, the quality of the process and party-empowerment attributed to voluntary participation have already been compromised, resulting in the reduced likelihood that a non-coerced agreement will be attained and placing at risk confidentiality and privacy issues (Kirmayer and Wessel 2).
Good-faith requirements for mediation are fairly new to most judicial systems, and it will take more research to determine whether the requirements to attend mediation will be seen as an obstructive process that restricts access to litigation and undermines standards of orthodox voluntary mediation, or seen as a valuable extension to the dispute process through which parties can resolve their differences before resorting to a more costly and lengthier litigious process.
II. Client Privacy and Confidentiality
Of great concern to opponents of mandatory mediation is the application of privacy and confidentiality rules to the parties involved in mediation, including the mediator (Boettger 26-29). Parties who participate in mediation are often lead to believe that the mediation process involves a confidential and private meeting that is meant to encourage and foster an atmosphere where parties can resolve their conflict without fear of the content of the meeting being shared with any other party. As mediation becomes more institutionalized under state and federal control, new rules are required to better define the rules of confidentiality to help avoid potential conflicts arising between participants, mediators and the courts.
Both the participating parties and the mediator can be subject to “the vagueness of the confidentiality provision of the public policy of the given jurisdiction…” (Lanzone 395). For example, parties, as well as the mediator, may be subject to provisions of law that may trump a signed confidentiality agreement that all participants had previously agreed to in mediation, exposing any perceived privacy to court rules. This can have severe ramifications, placing parties at risk for having fully participated in a good-faith mediation under the auspice of complete confidentiality and privacy. In order to mitigate this risk and attempt to preserve confidentiality in mediation meetings, the Uniform Mediation Act was drafted as an attempt to set policy on a uniform mediation standard that includes specific sections to address and preserve confidentiality in mediation sessions, protecting both the conflicting parties and the mediator (Uniform Mediation Act Sections 4-6).
Although many states have adopted the UMA in hopes to protect the integrity of the mediation process by setting agreed upon confidentiality rules, opponents still question the enforceability of the confidentiality clauses when one party uses information obtained in mediation to further the current conflict through litigation, instigate new litigation, or place the mediator in a forced position to compromise confidentiality through court orders to disclose information gained in mediation (Boettger 36).
III. Enforceability of Agreements
Can courts enforce a ‘non-binding’ agreement attained in mediation? Traditional mediation results in a non-binding agreement reached from mutual participation in the designing of the agreement. Through mutual participation and self-determination it is anticipated that both parties will adhere to the stipulations of a settlement without the need for a ‘binding’ agreement.
Now that mediation faces institutionalization through new statutes and laws, opponents to mandatory mediation question the enforceability of mediation agreements when one or both parties fail to comply with the agreement settlement. Failure to comply with an agreement can arise from any number of possibilities, including bad-faith participation, new found information that would have influenced a parties’ agreement, and imbalances in power when one party uses mediation as a way to coerce information or to cause increased delay or financial cost to the opposing party.
How to, or whether to, enforce agreements raise concerns for the process and expectations of traditional vs. institutionalized mediation, and pose obstacles on how to ensure the future enforcement of reached agreements. Proponents of mandatory mediation focus on inclusions for providing binding enforcement in drafted agreements, and are inevitably contrary to the traditional non-binding mediation processes. Michael Carbone in his article “Enforcing Agreements Made at Mediation” proposes that a “Memorandum of Settlement” be the basis of a binding-agreement that is further expanded upon by attorneys in a more formal settlement agreement submitted to the court. This formal agreement then becomes a binding legal document that can then be enforced under existing contract statues and laws (http://mediate.com/articles/carbone5.cfm ). Carbone advocates that mediators clarify in their initial meetings with parties that any written agreement (i.e. Memorandum of Settlement) “be admissible as evidence in any action or legal proceeding to enforce its terms.”
Carbone’s simplistic approach potentially compromises participants’ and mediator’s concerns for privacy and confidentiality in the process. One could easily assume that by initially declaring that any agreement be admissible as evidence would cause participants to reluctantly participate for fear of revealing something that could be used against them in further litigation.
While good faith participation, confidentiality concerns, and the ability to enforce mediation agreements are all areas of concern facing mandatory mediation, each one of these concerns must be evaluated collectively as they apply to the overall objectives and concerns of both participants and the court system. Court systems are eager to introduce mandatory mediation as a means to meet their needs to reduce case loads and adversarial litigation; and participants who understand the empowerment of mediation to self-determine their own agreements are equally as eager to embrace mediation as an alternative to costly and potentially harmful litigation. These benefits are touted and proclaimed often without a thorough evaluation of the costs associated with delayed litigation, general confusion from non-uniform guidelines, and legal implications of power imbalances played out.
Mandatory mediation in itself cannot completely reflect the standards and requirements that have made voluntary mediation so successful for willing participants, but can afford parties in conflict an opportunity to achieve a joint resolution to a conflict in a similar, but more regulated process. Nationwide acceptance and implementation of the Uniform Mediation Act and mediator guidelines can help resolve areas of privacy, confidentiality, and enforceability of agreements and aid in further defining guidelines and the roles of participants, mediators and court systems in mandatory mediation.
Boettger, Ulrich. “Efficiency Versus Party Empowerment -- Against A Good-Faith Requirement In Mandatory Mediation.” Review of Litigation, Winter 2004, Vol. 23 Issue 1.
Carbone, Michael. “Enforcing Agreements Made in Mediation.” www.mediate.com. December 2001. Mediate.com. October 17, 2005. http://mediate.com/articles/carbone5.cfm.
Hamilton, Diane, and Marcella L. Keck. Basic Mediation Training. Community Dialog Project.University of Utah. Family and Consumer Studies. FCS 5962/5964. 2005.
Heald, Chad. “Mandatory Mediation.” Mediating Conflicts involving Children and Families AGuide for Courts. The Ohio State University Michael E. Moritz School of Law., 2004: Chapter 12.
Kirmayer, Kathryn and Jane Wessel. “An offer one can’t refuse: mediate.” The National Law Journal October 18, 2004.
Lanzone, Anthony. “Ethics and the Attorney as Mediator or Third Party Neutral.” FICCQuarterly Summer 2001: 391-401.
“Mandatory Mediation and Summary Jury Trial: Guidelines for Ensuring Fair and Effective Processes.” ADR Methods. Harvard Law Review March 1990, Volume 103 Issue 5: 1086-1104.
Uniform Mediation Act. 2003.