How can you make good decisions if the information you have is limited or wrong? That’s the question that drove me to the fields of research and program evaluation – good policy and effective programs are passions of mine, and there’s no way to have either without accurate, reliable information. It’s also the question that ran through my head as I read the article, “To Mediate in Court or out of Court, that is the Question” in Financier Worldwide. In the article, the author distinguishes between court and private mediation in a way that is not consistent with the wide variety of court and private mediation that exists in the United States. The article provides a good example of the misconceptions I often see in articles about mediation, misconceptions that can lead to poor decisions about the use of mediation.
As the author explains it, court mediation is free, the court picks the mediator, mediation happens in the courthouse, and “The court clerk hands the file to the mediators and they immediately begin the mediation process with the parties.
Private mediation, he says, is very different. The parties select and pay the mediator. They submit materials for the mediator to review before the mediation, which takes place in an office, and “While the process remains confidential, voluntary and non-binding, the mediator often develops an aura of authority that causes the parties to alter their positions, and leads to settlement.”
No doubt this has been the author’s experience. Some court programs do operate the way he describes. And his description of private mediation fits many situations. But the differences aren’t this black and white. As someone who’s been doing research on mediation for many years, I have come to learn that court mediation and private mediation come in a variety of colors and the two overlap in how they operate.
Given the audience the author was writing for, it’s apparent that he was discussing large civil, commercial cases in his article, so I will do the same in my outline of the many facets of court and private mediation. As you will see, neither is bounded by a specific set of characteristics.
Free or paid, court-imposed or party-selected? In some court mediation programs all the mediators are volunteers or court staff, but often the parties pay the mediators. For example, a court may develop and maintain a list of mediators from which the parties and their lawyers can select a mediator. Or the court rules allow the parties to select any mediator of their choice, subject to the judge’s approval. Conversely, although not frequent, sometimes private mediators offer free mediation services for events such as settlement weeks. And if mediation is required under contract terms, the contract may name a neutral provider who selects a mediator.
Where does mediation happen? Court and private mediations can occur in law offices, neutral corporate offices, courthouses and other public spaces.
How much preparation does a mediator conduct? In some court programs, the mediator does not receive the case information until they are about to meet the parties. In others, the parties are required to submit briefs to the mediators before mediation begins. In other programs, the decision about whether and what materials to submit is left to the mediator.
How motivated are parties? The author assumes that the parties have willingly gotten together to mediate in private mediations, saying “Private mediations generally only occur where the parties are both motivated to settle, but have been unable to do so through their own negotiations.” While this may be the case, parties may have to attempt mediation due to a dispute resolution clause in a contract. Court mediation can be voluntary or mandatory. When a court requires that parties attempt mediation, it can reduce or eliminate the lawyer’s fear of looking weak if they suggest mediation.
What models of mediation do parties use? Although some court programs call on mediators to use a facilitative model, most do not. Generally, skilled, experienced mediators employ a wide range of strategies and tactics to assist parties in reaching agreement no matter whether they are associated with a court program or are conducting private mediations.
And finally, it is not always the mediator’s “aura of authority” that causes parties to alter their positions. Sure, sometimes lawyers can leverage the gravitas of a mediator who is a retired judge to convince their clients to settle. But even if you are considering only personality and experience characteristics, there are many others that can help move toward resolution. For example, a mediator may establish rapport with the clients and help them save face when making concessions.
So, what does this mean about decision-making? The Financier Worldwide article contains a number of misconceptions regarding mediation that are common in the legal community. Parties and their attorneys need accurate information in order to make good decisions about how to approach their case and prepare for mediation. Misconceptions can have an adverse effect on their case if they form the foundation of those decisions. For example, they may see court mediation as a hurdle to get past rather than an opportunity to explore the case and possible resolution. Therefore, they may not fully prepare for mediation and not be ready to engage with the other side, giving the other side an advantage in negotiations.
Good information leads to good practice. There’s a lot of good information on mediation out there. We in the field need to keep working to counter the misconceptions that still exist.