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In 1999, Steven Keeva, the editor of the ABA Journal and author of Transforming Practices: Finding Joy and Satisfaction in the Legal Life, had this to say about ADR:
While alternative dispute resolution has made encouraging inroads over the last twenty years, the adversarial system continues to hover above ADR like an elephant over a chipmunk. 
I now suggest to my students that, in less than a decade, the metaphor has completely changed. ADR is now the elephant hovering over the chipmunk of litigation.
For instance, a review of the ADR referral policies of the district judges in the United States District Court for the Eastern District of Missouri shows that the eight judges will refer almost all cases to mediation, especially if they present fact issues. The judges do not make referrals when the cases involve: only questions of law; appeals from rulings of administrative agencies; habeas corpus and extraordinary writs; bankruptcy appeals; Social Security cases; and prisoner civil rights cases.  For most experienced mediators, even this list of excluded cases raises questions about why the judges have deemed these cases inappropriate for mediation. 
All of us have heard about mediation of personal injury cases or child custody matters. But a review of the headlines appearing over the past several years indicates the increasing use of mediation at earlier stages in the dispute – often pre-litigation – in an increasing variety of matters.
The use of mediation to resolve conflicts seems limited only by the support of courts, the will of the parties, and the creativity of their counsel.
Disputes Suitable for Mediation
Hal Abramson, the author of Mediation Representation: Advocating in a Problem-Solving Process, suggests that certain types of disputes are especially amenable to mediation:
Christopher Moore -- a partner in CDR Associates, a mediator since 1979, and author of The Mediation Process: Practical Strategies for Resolving Conflict – would also consider these factors:
I would add to this list cases in which the parties:
Disputes Less Suitable for Mediation
Abramson suggests that the following types of disputes or circumstances make mediation less desirable:
I would add to this list disputes in which:
The Maryland Handbook for Lawyers identifies four types of disputes in which mediation would not be successful or is not appropriate:
I would challenge two components of this list. While the mediation community continues to debate whether victims of spousal abuse or domestic violence should ever participate in mediation, several authors suggest that with sufficient safeguards the process may offer an attractive alternative for abused spouses.  One of my former students, a victim of spousal abuse, wrote a seminar paper advocating the use of med-arb in divorce proceedings involving abused spouses.  After her experience in the West Virginia court system, in which a judge openly expressed his bias against her, she preferred a process giving her more control, especially, over the outcome.
I would also suggest that mediators successfully handle many cases in which the parties either had no pre-existing relationship (auto accident cases) or do not wish to preserve the relationship (divorcing spouses with no children).
Still other authors identify those attributes of a dispute or of the parties that will make mediation more successful. They include: a positive state of mind; good faith; adequate settlement authority; flexibility; patience; realistic expectations; preparation; a willingness to listen; an effective negotiation strategy; creativity; and honesty. 
As mediators, lawyers, and their clients gain more experience with mediation, fewer and fewer types of disputes will seem less amenable to the process. Even if mediation only succeeds in improving the parties’ communication, in identifying their underlying interests, in narrowing the issues in conflict, or in helping them more carefully evaluate their litigation option, it can move the dispute towards a quicker, more cost effective resolution.
1 STEVEN KEEVA, TRANSFORMING PRACTICES: FINDING JOY AND SATISFACTION IN THE LEGAL LIFE 102 (1999).
3 Id., referring to Local Rule 16-6.01(a), available at http://www.moed.uscourts.gov/ documents/loclrule.pdf.
4 No empirical research supports the statement that some disputes are “best” for mediation. In fact, data on settlement rates and party satisfaction with mediation does not vary significantly based on type of dispute mediated. At the same time, disputes are more likely to settle in mediation if the parties’ positions are already fairly close, the issues are less complex, or the issue of liability is less strongly contested. Bobbi McAdoo, Nancy Welsh & Roselle L. Wissler, Institutionalization: What do Empirical Studies Tell us About Mediation?, DISP. RESOL. MAG., Winter 2003 at 8, 9.
6 Theo Emery, After Steps to Desegregate, Plaintiffs Drop Tennessee Suit, N.Y. TIMES, Sept. 12, 2006, at A19, available on Westlaw at 2006 WLNR 15784855.
7 HealthSouth Mediation Order, N.Y. TIMES, Sept. 20, 2005, at C2, 2005 WLNR 14786527.
8 Lindsey Nair, Judge Refers Harassment Suit to Mediation, ROANOKE TIMES & WORLD NEWS, Feb. 28, 2006, at B1, available on Westlaw at 2006 WLNR 3479328.
9 Baseball Files for Mediation, RICHMOND TIMES, Jan. 5, 2006, at D8, available on Westlaw at 2006 WLNR 2194699.
10 National Briefing Midwest: Michigan: Mediation in Parks Dispute, N.Y. TIMES, May 10, 2006, at A 20, available on Westlaw at 2006 WLNR 7992504.
11 Matthew L. Wald, F.A.A. Calls for Mediation in Talks with Controllers, N.Y. TIMES, Nov. 11, 2005, at A20, available on Westlaw at 2005 WLNR 19186814.
12 Richard L. Jones, Metro Briefing New Jersey: Trenton: Child Welfare Mediation Scheduled, N.Y. TIMES, Oct. 18, 2005, at B8, available on Westlaw at 2005 WLNR 16844077.
13 George James, Metro Briefing N.Y.: Manhattan: Mediation Ordered in Trade Center Suit, N.Y. TIMES, July 22, 2004, at B4, available on Westlaw at 2004 WLNR 5598451.
14 Antonio Betancourt, World Briefing Americas: Mexico: Mediation in Columbian Conflict, N.Y. TIMES, June 8, 2004, at A11, available on Westlaw at 2004 WLNR 4787661.
15 Mediation Begins for Boys in Slaying of Father, N.Y. TIMES, Nov. 9, 2002, at A14, available on Westlaw at 2002 WLNR 4088824.
16 Every now and then I here a comment about cases not suitable for mediation that literally makes my head whip around. This comment is often made by retired judges-turned-mediators or lawyers-turned-mediators who are not well-trained or well-versed in the expanding literature on the role emotions play in negotiation or mediation. The comment goes something like this: “High-emotion cases just don’t work in mediation. You’ve got to keep the parties from getting too emotional. Emotions just get in the way.” But see ROGER FISHER & DANIEL SHAPIRO, BEYOND REASON: USING EMOTIONS AS YOU NEGOTIATE (2005); Eileen Barker, Tips for Dealing with Emotion in Mediation, www.mediate.com/articles/ebaker2.cfm; Paula M. Young, Emotions in Mediation – Yours and Theirs: The Good News is, They Matter, St. Louis Lawyer 14A (February 4, 2003), reprinted at http://www.mediate.com/articles/young12.cfm.
17 HAL ABRAMSON, MEDIATION REPRESENTATION: ADVOCATING IN A PROBLEM-SOLVING PROCESS 117-18 (2004).
18 CHRISTOPHER MOORE, THE MEDIATION PROCESS: PRACTICAL STRATEGIES FOR RESOLVING CONFLICT 13-14 (2d ed. 1996).
19 My language, not Abramson’s.
20 Abramson, supra note 17, at 118-19.
21 The Md. Inst. for Continuing Prof’l Ed. of Lawyers, Inc., Ch. IV: Deciding When to Use Mediation, MEDIATION: A HANDBOOK FOR LAWYERS (1999), available on Westlaw at MEDI MD-CLE 27.
22 E.g., compare Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L. J. 1545 (1991) with Dennis Marthaler, Successful Mediation with Abusive Couples, 23 MEDIATION Q. 53 (Spring 1989). 23 Angela Lambert, Preventing Judicial Re-victimization: Introducing “Domestic Violence Dispute Resolution Specialists” into the Present ADR Systems, State Legislatures, and Family Courts . . . from a Domestic Violence Crusader’s Point of View (Fall 2006) (unpublished manuscript, on file with author).
24 See, e.g., Kenneth O. Simon, Jr., Keys to Successful Mediation, http://library.findlaw.com/ 1999/Jun/1/128176.html.
Paula M. Young is an associate professor at the Appalachian School of Law located in Virginia teaching negotiation, certified civil mediation, arbitration, and dispute resolution system design. She received in 2003 a LL.M. in Dispute Resolution from the top ranked program in the U.S. She has over 1400 hours of alternative dispute resolution training. Missouri and Virginia have recognized her as a mediator qualified to handle court-referred cases.
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