“Discourage litigation. Persuade your neighbors to compromise whenever they can. Point out to them how the nominal winner is often a real loser-in fees, expenses and waste of time.” -Abraham Lincoln, July 1, 1850.
In the spectrum of the recognized alternative dispute resolutions devices, mediation is perhaps the most flexible device allowing party control of outcomes through a structured process. Traditionally, mediation is recognized as a facilitative device appropriate for resolving disputes between parties wishing to preserve an existing relationship . The mediation process itself attempts to facilitate communication between parties through a structured, confidential process conducted by a neutral third party (mediator) wherein parties can clarify the disputed issues, identify underlying interests and explore possible resolutions. Since the parties ultimately craft the solution and terms (self-determination), mediation provides a more flexible process where by the parties can reach mutual satisfaction from creative remedies that may not be available through traditional litigation, or that would not have the ability to preserve the existing relationship. Perhaps the most notable distinction between mediation and litigated resolution is that mediation attempts to structure and preserve the resolution around the relationships between the parties, something that litigated resolution lacks in any consideration.
The adoption of mediation as the preferred alternative dispute resolution in today’s legal system can be attributed to the Roscoe Pound Conference of 1976 where various legal scholars, judges and administrators met to discuss the current participant dissatisfaction with the legal system including concerns with overburdened court dockets and costs to litigate. Chief Justice Warren Burger presented the keynote speech at the conference and expressed the need for alternative means to attend to various types of disputes. In his speech, Chief Justice Burger advocated the need for an institutionalization of alternative dispute methods within the legal framework to address the needs of participants in dispute. The outcome of the conference discussions resulted in a call for a ‘multi-door’ courthouse concept whereby parties in dispute would have a choice in the method of dispute resolution best suited to achieve the needs of the parties.
Since the 1976 Roscoe Pound Conference, court annexed alternative dispute programs have been organized in every state with the goal to reduce strains on court dockets, to expedite resolution of disputes, and to reduce traditional costs associated with litigation leading to the courtroom. Mediation is the preferred dispute device as it meets not only the needs of the legal system to help reduce court dockets, and the needs of participants to reduce litigation costs, but allows the parties to maintain a greater control in the outcome of the dispute – achieving in the majority of instances an agreement with terms that are acceptable to both parties.
Mediation’s Success Threatened by Opposing Interest of Courts and Parties in the Mediation Process
While overall satisfaction of the courts, providers and participants appears to have been positive, critics charge that mediation’s traditional and primary objectives and goals have been challenged by mandatory participation legislation that ignores preservation of party self-determination in favor of court interests in reducing their dockets. They charge that overzealous courts believe forced participation can result in the same party satisfaction that voluntary participation achieves, and that mediation is an appropriate requirement before accessing traditional litigation in the court. With an average reporting eighty percent settlement rate, one could see why courts are readily eager to mandate disputing parties to at least attempt mediation. What the courts fail to consider is that the high rate of satisfaction is directly linked to the parties’ control over participation and resolution. Continued high settlement rates after implementation of mandatory mediation programs however, may be biased by parties who feel coerced, or intimidated into a settlement. In her Harvard Law Review note, ‘The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization?’, Nancy A. Welsh asserts that self-determination is a fundamental principle of mediation that made mediation such a boom in the 1970’s and 1980’s and that mediation has now been disrupted with the courts’ own self interest in having civil cases settled. This shift from voluntary party participation to court imposed participation in mediation results in fewer options for participants and more control of the outcome put in the hands of mediators, attorneys and courts. One of the advantages to traditional mediation was a lack of any mandatory participation requirements that empowered the parties to have control of the outcome. The encouragement of voluntary participation based on self-determination of the parties was thought to foster a less hostile environment whereby the parties were empowered to reach mutually agreed upon solutions free from outside influences or defined participation rules. However, with a mandatory approach the fear is that parties may be less likely to settle without a feeling of coercion or pressure to reach an agreement as the only option, thus compromising the power of self-determination that is so critical to the mediation process for the involved parties.
The number of cases that are emerging from issues stemming from the institutionalization of mediation is growing. States have adopted in various forms the Uniform Mediation Act and federal courts have adopted the Alternative Dispute Resolution Act . As the state and federal courts adopt alternative dispute resolution acts that include mediation, more issues come to bear that conflict with the goals between traditional party empowerment mediation and court ordered mandatory mediation. The traditional notion that mediated settlements would be more likely to be followed if both parties had input and voluntary agreement to the settlement was challenged early on after adoption of mandatory mediation laws. With the imposition on parties to participate in mediation on the premise that mandatory mediation would conform to the parties’ needs as well as meet the needs of the courts interests to reduce dockets came a series of cases challenging the implications of harm to parties form a mandatory participation.
Inevitably most of today’s litigated disputes over mediated settlements revolve around challenges to confidentiality of mediation sessions, bad faith participation (through forced participation) and court enforceability of mediated agreements.