Court-Referred Mediation: Whose Game Is It?

We witnessed recently a heated interaction between members of the dispute resolution community. The argument was made possible because the parties held significantly different philosophical frameworks of dispute resolution and they found it impossible to accommodate each other’s positions. The paradigms in conflict appear to be the legalists’ view on the one hand, and the mediationists’ view on the other. The legalists’ view focuses on an adversarial or substantive approach to dispute resolution while the mediationists’ view focuses on a collaborative or facilitative approach.

William Ide III, American Bar Association President, gave insight in the history of these conflicts. Ide observed that, “in Anglo-Saxon history, there was a tremendous tension between the efforts of the king to impose feudal court systems and the desire of communities to settle their own disputes.” He went on to describe the Colonial American decision to outlaw lawyers because the colonialists wanted to create a society in which disputing parties could resolve their own disputes. In Fisher and Ury’s Getting to Yes, this conflict is defined as existing between positional bargaining (legalists) versus principled negotiation (mediationists).

However, we do not believe that the real conflict is between the mediationists and the legalists. Indeed, both exist in our society, both have demonstrated validity as processes for achieving justice and as dispute resolution processes. The real conflict is the interdependence created between the mediationists and the legalists as a result of court-annexed ADR programs.

At the most superficial level the conflict can be described as a dispute over whether process or substantive expertise is most important to dispute resolution. From the legalists’ perspective principled negotiation and mediation are a part, or a potential choice among many, in the much larger and comprehensive umbrella of the Law. From the mediationists’ perspective positional bargaining and traditional litigation are a part, or a potential choice among many, in the much larger and comprehensive umbrella of Conflict Resolution.

While the tension between these two philosophical positions has existed for centuries, there has been little conflict because the opposing paradigms were able to either accommodate each other or ignore each other’s existence. However, with the current integration of these approaches represented by court-referred mediation and the mainstreaming of principled negotiation processes in the legal system, it is no longer possible to ignore the philosophical differences or to accommodate those differences.

The conflict between these competing views of dispute resolution is beginning to generate undesirable and unproductive consequences. For example, immediately following the Supreme Court of Virginia’s creation of a court-referred mediator certification program, challenges to the adequacy of certification standards and to mediator competencies appeared. Concerns about control, licensing, supervision, evaluation are all relevant in the discussion about principled negotiation. Officials of the American Bar Association have expressed concern that cases are flowing away from the courts into alternative processes and, according to ABA staff attorney, Frederick Woods, “a mediator can be anyone who hangs a shingle: lawyer or nonlawyer, experienced or not. And that’s beginning to set off alarms.”

On the other hand, those representing principled negotiation and mediation are challenging the status quo litigation system. The fact that community justice programs, community mediation centers, and court-based alternative dispute resolution programs are being established and embraced by society may be threatening to an assumption of the primacy of traditional litigation.

It seems obvious that continuing the debate about the relative primacy of litigation or mediation, over concerns of control, are fruitless. We believe that it is time for the two approaches to begin a process of integrating their concerns and their positions. It is now time for the integration of substantive and facilitative expertise, to abandon the notion of alternative dispute resolution and embrace the concept of complementary in dispute resolution. American Arbitration Association President Robert Coulson recently expressed his concern that various alternatives to traditional litigation may be needlessly segregated. He appeared to be encouraging a more integrated understanding of dispute resolution processes and the sharing of expertise including both substance and process.

The Society of Professionals in Dispute Resolution (SPIDR) has expressed the fear that disputants may not get “real justice” in a dispute resolution environment that is not integrated. When processes are segregated the potential exists for one being available to the rich and the other to the poor, one available to the privileged and the other to the disadvantaged, one affording fair and equitable justice, the other offering a sham.

All parties interested in creating and sustaining an environment characterized by principled and just dispute resolution must find opportunities to continue the exploration of an integration of substantive and procedural concerns. We believe that discussion needs to begin between members of the traditional legal community and persons advocating complimentary and alternative views of dispute resolution. Legalists and mediationists must recognize that a conflict does exist. Both legalists and mediationists must identify and focus on common interests and abandon status quo commitments to position. Failure will surely result in circumventing the mutual goal of equal access for all citizens to multiple resolution procedures. With a new willingness to pursue the integration of approaches, expertise, and perspective, all dispute resolution professionals and providers, legalists and mediationists alike, will be empowered to craft a system of justice achieving the promise of principled dispute resolution.

                        author

Rex M. Fuller

Communications studies professor Rex Fuller looks forward to sailing on the Chesapeake Bay, teaching part time and spending time with his grandchildren during his retirement. Fuller has contributed to many developing programs at JMU and recognizes "the impact of his mentors on his success as a JMU faculty member." Fuller… MORE >

                        author

William D. Kimsey

William D. Kimsey is employed at the Center for Mediation in Harrisonburg, VA. MORE >

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