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<xTITLE>Courts Should Make Mediation Good Samaritans not Frankensteins</xTITLE>

Courts Should Make Mediation Good Samaritans not Frankensteins

by John Lande
May 2021

Indisputably

John Lande

Here’s a short article you might be interested in.

Using a recent California appellate decision as a jumping off point, this short article identifies problems with mandatory mediation. It recommends that courts use good dispute system design procedures to help fulfill the goals of mediation as Good Samaritans and to reduce risks of creating Frankensteins – mediation that produces injustices.

The discussion begins by analyzing Breslin v. Breslin, a recent 2-1 decision by the California Court of Appeal.  In this probate case, some potential beneficiaries failed to attend mandated mediation.  The parties who attended the mediation reached an agreement and the appellate court upheld a decision enforcing the agreement, thus causing the non-participating parties to forfeit their rights.

The majority faulted the non-participating parties for failing to attend the initial probate hearing and object to mediation at that time.  According to the dissent, the non-participating parties filed an objection before the court approved the mediated agreement, which “disinherited” them and “redistributed their gifts to other parties contrary to the testator’s express directions.”

The Breslin majority wrote, “the mediation ordered by the probate court, like the trial in Smith, was an essential part of the probate proceedings.”

This article explains why the Court’s perspective takes dispute resolution down the wrong road, and it recommends that courts use dispute system design procedures, particularly to protect against coercion.

It builds on (and links to) important work by Lisa Blomgren Amsler, Jim Coben, Sarah Cole, Dwight Golann, Julie Macfarlane, Jan Martinez, Carrie Menkel-Meadow, Frank Sander, Stephanie Smith, Peter Thompson, Nancy Welsh, and others.

The folks who read earlier drafts don’t all agree about my arguments.

See what you think.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



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Additional articles by John Lande