Free Mediation: Part II

Following up on an earlier post, in which I discussed the frustrations of many mediators with pro bono court-annexed mediation, I want to try to figure out where we should draw the line between cases appropriate for free mediation and cases in which parties should be expected to pay for mediation services.  I suggest that the answer to that question may depend on one’s view of the role of mediation in the judicial system, and specifically on whether mediation should be treated as “public” dispute resolution process to which citizens should be given access in the same way they should be guaranteed access to the courts, or whether mediation should be treated as a “private” system that allows litigants to avoid the court system in whole or part.

Geoff Sharp, a mediator based in New Zealand, provides links to the three best articles ever written about mediation.  Interestingly, he actually lists only two, and both are more than 25 years old.  Even more interestingly, these two articles provide diametrically opposing viewpoints as to mediation’s place in the judicial system.  In the view of Frank Sander, courts should evolve into centers that provide a “flexible and diverse panoply of dispute resolution processes,” tailored to the needs of the disputants.  Courthouse personnel would screen cases and send them to arbitration, or fact-finding, or mediation, or some other process, as appropriate.   I have also advocated similar ideas of the potential for expanding the role of mediation in the court system.  On the other hand, Owen Fiss  views settlement itself as an illegitimate process, that should be tolerated but never glorified, because it provides none of the legal protections and public scrutiny that we expect from judges.  Settlement should therefore continue to operate in the shadows of the court system.

Both positions have some merit, and the tension between these two views can probably never be resolved.  My guess is that most mediators would lean more toward Sander’s view of the world of dispute resolution, a view that would dignify ADR to the same level as other mechanisms.  In fact, most mediators would argue that mediation is far superior to the expensive, cumbersome and unpredictable  methods of litigation.  We recognize the need for established rules of law, which requires codes and court decisions; we might appreciate the valuable roles of judges and juries; and we believe in the principle of access to justice, but we still think there is a better way for most people to solve most disputes.  But if we believe that peace and reconciliation are just as important “public” values as justice and law, that might lead us to the conclusion that litigants are just as entitled to free settlement services from the courts as they are entitled to the services of a “free” judge, even if their dispute is worth millions of dollars, and they could easily afford to pay the judge to decide their case.  That view may justify courts in assembling panels of attorneys or other professionals who volunteer their services on a part-time basis to help settle cases.  Better yet, it would justify the courts in putting a larger share of resources into paid court personnel who assist litigants in settling cases.

Ironically, if we view mediation as a more “illegitimate” process, seeing it as a way of circumventing the protections of the court system, that would lend more justification for treating mediation as a “private” service that litigants should be expected to pay for by the hour, just as they are expected to pay arbitrators, and just as they have to pay their own lawyers, experts and court reporters even for cases litigated in the “public” system.   Courts should be supported by taxpayers because they provide a benefit for everyone, even those who never set foot in the courthouse.  That benefit comes from the knowledge that when you sign a contract, or enter into any other legal relationship, the courts are always available to enforce those legal obligations, and that encourages people to live up to their legal obligations.  In contrast, it is less clear that mediation provides a benefit for anyone other than the participants in the mediation, although I recognize that you can make the argument that maintaining peace and good relationships between disputants benefits everyone.  If mediation is seen as more of a private than a public function, courts should consider getting out of the business of providing free panels of mediators to compete with the professionals who are charging for their services, or they should at least steer more cases to private mediation.  And litigants should not expect (except in hardship situations) to be entitled to free mediation services, any more than they should expect their attorney to work for free.


Joe Markowitz

Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both… MORE >

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