Mediation: Did We Get It Wrong?

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33 Willamette Law Review 649 (Summer, 1997)
(c) 1997 Willamette Law Review; Barbara A. Phillips

Table of Contents

I. Introduction

A. The Rise of Mediation

B. The Changing World of Litigation

C. Some Conceptual Tools:

1. Justice
2. Power
3. Balance

II. The Construction Industry’s Experience with Mediation

III. The Challenge for Courts

A. Foster Mediation

B. Docket Management Tools to Create a System of
Appropriate [1] Dispute Resolution
That Fosters Quality Outcomes

IV. The Future of Lawyers

V. Conclusion

Appendix A–Table 1

Introduction

Mediation is unique among dispute resolution alternatives. Other approaches, such as early neutral
evaluation (ENE) and non-binding arbitration, as well as summary jury trials, mini-trials, and court-
settlement conferences, emphasize predicting the outcome of later adjudicatory proceedings. Mediation,
however, focuses on addressing the full range of issues the parties bring to the table. [2]

Mediation’s strengths, viewed through the paradigm that sees adversarial process as the norm and
everything else as the alternative, look like weaknesses. For example, from the perspective of the war
paradigm, a broad focus and dependence on the consent and trust of the parties–hallmarks of
mediation’s strength–look weak. Understanding mediation requires use of the paradigm of problem-
solving which holds that mutual gain is desirable and possible through mutual effort, even in the face of
apparently insurmountable difficulties. Fortunately, there is no need to choose between these two
approaches, the combative and the problem-solving. There is a place for each, although the tide of
public acceptance is running strongly in the direction of problem-solving for reasons we will examine in
this Article. The mediation forum enables litigants, their lawyers, and their experts to build enough trust
to pierce the adversarial facade and confront the reality of their situation. It is, by definition, facilitative.

The purpose of this Article is to show what is working and what is not–to sound the call to courts and
lawyers to develop a balanced, user-friendly, effective system of dispute management and
resolution. Courts are in desperate need of more effective and appropriate means of shepherding to
their final resolution the 95% of cases that will not be tried. Lawyers need more humane and effective
tools for helping clients. What will help most is a recognition of mediation as the principal resource for
dealing with the majority of civil disputes that will settle, and to accept it on its own terms, rather than
trying to remake it in the judicial model. After that, courts need only integrate case management tools
with a vision of Appropriate Dispute Resolution. The question is whether courts and lawyers will remain
at the center of civil dispute resolution. This author proposes that they may, although instead of
occupying this space exclusively, lawyers will share the stage with people from other disciplines. And if
they do share the stage, in the end, both the public and the legal profession will be well served.

A. The Rise of Mediation

Mediation is not the cause but a product of significant changes in society. It is the beneficiary of a trend
toward problem-solving and away from confrontation. There is widespread evidence that litigants prefer
processes in which they have an opportunity for significant participation, particularly a chance to tell their

stories. [3] The mediation process satisfies this need better than any other format of Appropriate

Dispute Resolution. It also has both process and procedural integrity in the hands of professional
practitioners. Yet, in general, the old habits of lawyers and professional litigants have yielded slowly. A
brief overview of mediation’s evolution in general civil litigation provides an appropriate starting point for

analysis.

Insurance companies pay a significant percentage of settlements in the United States. Insurance
carriers became interested in mediation in about 1984, and leading companies such as The Travelers
and Aetna began assigning cases to mediation, eventually reaching approximately 10% of matters in
litigation, including court-mandated mediations. Claims professionals, particularly those with major
litigation responsibility, became relatively enthusiastic about mediation, despite the significant problems
often posed by claims administration policies and procedures. [4] However, their lawyers’ responses
to
mediation were mixed. Today insurance carriers’ use of mediation tends to come only at the end of
extensive discovery. And today only about 10% of litigated claims are mediated, except where
participation is court-mandated.

It was a different story in the construction industry. [5] In construction, insurance broadly
covers
defense costs, but indemnity coverage is narrowly proscribed. [6] Construction insurance is
largely in
the hands of specialty insurance companies, rather than general liability companies. [7] Uniquely,
the
construction industry made ADR its own. [8] According to a 1994 construction industry survey
of
2,300 ADR users, 84% of the ADR experiences involved mediation; while one-third was court-
initiated, two-thirds of these mediations were the result of agreement between the parties. [9]

By contrast, an exhaustive study of ENE, pioneered by the U.S. District Court in San Francisco, found that
despite an 80% satisfaction rate among lawyers using ENE in assigned cases, not one lawyer had
chosen ENE voluntarily. [10] Although the timing and information available through the ENE
process
was helpful, the evaluators probably lacked mediation skills to help the parties identify the benefit of
mutual input. Too often, counsel simply drifted back into litigation. Simple evaluation without a
mediator’s skillful push toward resolution is not enough. Perhaps recognizing this, San
Francisco’s ENE process seems to be taking on more and more characteristics of mediation. [11]
And
its program is picking up steam as lawyers are required to participate in the use of ADR, while they are
simultaneously given more choices. [12]

Various state courts are using mediation programs, with notable success. For example, Illinois’
Seventeenth Judicial Circuit Court has had a mediation program in place for nearly four years. With
more than 500 cases mediated, statistics show that agreements were reached in 68% of these cases, up
from 44% in the program’s first ten months. [13] In 1995, pursuant to California’s
mandatory mediation program for cases under $50,000, nearly 1,000 cases were submitted to mediation in the
Los Angeles and San Diego Superior Courts. [14] Full agreement was reached by all or
some parties in 32% of Los Angeles cases and 41% of San Diego cases. More than 90% of respondents to a court
survey about results stated that they would use the same ADR procedure again. [15] So
great is the change brought about by mediation that observers struggle for words to describe it. ADR pioneer Frank

Sander speaks of mediation as “the sleeping giant [of dispute resolution]” [16]and

notes the differences between it and trial and arbitration. [17]
Thomas Stipanowich tells us that “a quiet revolution is occurring in America and throughout the industrialized
world.
It has to do with the way people perceive the controversies that affect them, and their involvement in the search

for solutions.” [18] When people want more involvement in their search for solutions to

controversies that affect them, and those controversies are perceived as problems to be solved rather than as victories

to be won, the whole social underpinning of civil litigation begins to give way. This may help account for the
relative decline
in civil trials.

B. The Changing World of Litigation

The intense debate about mediation and other Appropriate Dispute Resolution forms comes at a time
when immense changes are taking place in the relationship between courts and the public. ADR is not
the main force driving these changes, but is merely a stream contributing to the broad river of change in
how conflict is managed in our culture. For example, over the past decade some courts have used rules
such as Fast Track to discourage civil lawsuit filings. [19] In California during the 1980s,
this
contributed to a decline in the number of civil lawsuit filings, despite a 25% increase in population. [20]

The number of civil trials increased about 4% between 1985 and 1995; [21] however, there were

significant declines in trials in certain areas: contested divorce proceedings were down 42% from
13,000 to 7,500; as a group, nonmotor vehicle personal injury, property damage, and wrongful death
trials were down 78% from 4,900 to 1,100; motor vehicle personal injury trials were up 31%, but
compared to the number of filings of this type, the increase from 654 to 854 seems trivial. [22]
Federal
civil trials have also declined from 11% in 1961 to 4% in 1991. [23]

Mediation is, in one sense, old as well as new. Our tendency to resolve disputes privately is part of our
country’s heritage, [24] and is a central aspect of our Anglo-American legal system. From the
most
remote antecedents of our legal system, there is evidence of procedures that gave disputants some
control over their destiny. [25] In Anglo-Saxon England, from the seventh to the mid-eleventh
centuries,
the third-party decision makers often persuaded the losing party to come to terms with the winning
party, promoting their reconciliation. [26] This occurred after “winner-take-all judgments”
were
announced to the parties, but before these judgments were finalized by oath-swearing. Reparation
amounts for personal injury were made expressly subject to negotiation. [27]

C. Some Conceptual Tools: Justice, Power, and Balance

Some judges and those concerned with judicial ADR programs, facing pressure from various quarters
to reform the handling of cases, have asked whether invoking mediation might impede access to the
courts and weaken the effectiveness of applicable law. [28] This is a fair question. To answer
it, we
must look at our society’s concepts of justice, power, and balance.

1. Justice

Civil court resolutions by themselves do not provide a satisfactory example of justice. Justice does not
mean getting the same result on the same facts in all or even most instances; and despite the assumed
certainty, there is more flexibility in the application of law than generally appears. [29]
Nor is popular
culture very helpful–espousing a view of justice that leaves compassion and mercy out of the
equation. Justice without compassion is the kind of justice one demands for the other party–one who is
not us. [30] Yet, in the great traditions of Western civilization, justice without mercy and
compassion is
no justice at all. Justice is symbolized by a blindfolded woman holding a scale and a sword. It is no
accident that Justice is a woman. Symbolically, the archetypal feminine speaks of whole-seeing [31]
and
reason with wisdom. [32] The scale represents the balancing of inner and outer powers, male
and
female powers, and the interests of the individual and society. The sword Justice carries at rest
represents the sword of discrimination and discernment, not the sword of vengeance. [33] Retributive

justice, which exacts payment for crime solely through incarceration or death, is impoverished because it
is based on tit for tat: Do bad things to us (society), and we’ll do bad things to you. We give what we
get, creating a destructive downward spiral.

Current efforts to reform the criminal justice system to account for victim and community impacts are an
attempt to correct our retributive system’s failure to reduce recidivism. [34] Mediation is
beginning
to play a significant role in the development of restorative justice. [35] Restorative justice
offers
adequately motivated criminals a chance to earn the right to be a part of society again by taking steps to
become responsible for themselves and to ameliorate the damage done by their actions. It recognizes
that we get what we give, and we have a choice about this. If we give mercy and compassion, we
receive it in return. If we give brutality, we receive it in return. There is no place for otherness. All
people are us, in the fullest sense of the word. The community is us and must be helped to heal when
misdeeds have riven it. The victim is us and must be helped to transcend that role, if the whole web of
impacts from crime are to be redressed.

What does justice mean in the context of mediation? [36] The law is only one factor parties
consider in
evaluating settlement options. [37] If mediation is about self-determination, and if the affected
parties
reach an accommodation that works for them (absent a lack of capacity or other taint), why
would a court question it? [38] Perhaps we are looking for justice in the wrong place. [39]
We do not
speak of justice in referring to what people do to or for themselves. Justice has meaning only in a more
public context–when people are “done unto” or acted upon, particularly when the one acted upon is
required to submit. Protection of the mediation process is far more relevant than the justice of the
mediated agreement in the eyes of a third party.

As relevant to institutionally fostered mediation, justice means that mediation to which the parties are
committed must not only be seen as fair and just, but must be so in fact. But this is no invitation for
courts to control the process or the providers, for fairness and justice lie in the eyes of the users. As
they are given options and choices about the appropriate dispute resolution process and the provider,
justice in this sense will happen automatically.

2. Power

Power is the ability to get results. There are two contending definitions of power vying for prominence in
our society. Supporters of either view do not believe that the other side of the debate refers to power at
all. Power Over wins people’s hands and uses its resources to maintain control over what people do.
Power With wins people’s hearts and uses its resources to carry out a common purpose. The principal
tools of Power Over are fear and authority. The principal tools of Power With are reasoning,
dialogue, leadership, and enthusiasm. [40] Power Over is limited, compared to Power With. Yet
Power With requires a more broadly defined self-interest, and many people still believe those who seek Power With
are either weak or not grounded in reality.

Courts, too, are caught in the debate over what power means, for it is their lifeblood. Courts are
constrained as long as all they can do is award money damages, order, and enjoin. For all of the social
ills courts successfully have addressed, it seems they may be approaching the limit. In a society whose
citizens are raising complex problems affecting relationships far beyond those before the court, the limited remedies
available to courts are grossly inadequate. [41] Monetary and injunctive relief fall far short
of the broad range of remedies available when the discussion broadens into a problem-solving process and the parties
fashion their own solutions. [42] The answer is not broader legal remedies, but instead more
appropriate processes for addressing problems that will bring
out the best in lawyers and disputants. It is no secret that the adversary system often brings out the
worst in advocates and parties. And, in fact, it can be argued that the system is designed to bring out the
worst. [43]

It takes negotiators and mediators to bring Power With into the equation. And there is considerable
evidence that these roles are assuming primacy both at home and abroad. Soft power [44] is
in–from
international affairs, to rearing children, to training horses, to farming and ranching. On a global
scale, the United States’ “soft power” is replacing force, the “traditional currency of clout.”
Soft power
uses the art of getting others to want what you want, rather than forcing them to do what they do not
want to do. The days of “come home with your shield or on it” are over. This century, for all of its
wars,
may have demonstrated once and for all the futility of war and conquest. At the same time, it points to
the wealth that is possible with an open society and a nation of generous people. Soft power rests on a
broad sense of self-interest–visible in the remarkable post-WWII Marshall Plan and America’s
comparatively wide-open society that is unique in recorded history. America’s economic and cultural
hegemony in the world contrasts starkly with the tiny, withered fruits of would-be conquerors.
In the twenty-first century, mediation and other collaborative processes such as partnering [45]
will
become the tools of choice in conflict management. Lawyers will either be on board or be swept aside.
[46] The way in which courts and the legal profession respond to mediation and other collaborative

conflict management processes will determine the degree to which they participate in what is more a
birthing process than a titanic struggle. [47]

3. Balance

At a conference on construction industry dispute resolution, a European engineer observed, “our
civilization is like a bird with one wing, flying round and round in circles. The other wing is the Feminine.
Without it, we cannot go anywhere.” [48] What he perceived in Europe is also evident in
the United
States: the end of “the way it has always been done” mentality. [49] His comment
called to mind a
story Joseph Campbell described as the central myth of western civilization. In the quest for the Holy
Grail, brave knights battled dragons and all manner of evil, finding no rest in their search for the Grail.
But the Grail–a vessel filled with life-giving blood–is none other than the “sacred feminine.” The
Grail
myth tells us that what we have been searching for throughout the history of western civilization is
balance. [50] The feminine is part of all human beings; and when we fail to respect its qualities,
such as
its indirect, intuitive, nurturing and relational attributes, we deny part of ourselves, whatever our gender.
Until we embrace this fundamental part of our nature, we are hopelessly and destructively out of
balance.

The truths about the nature of the problem-solving universe are reflected in the following rules of
life, expressed at a recent conference on holistic management in agriculture: “Everything is related to
everything else. Water always runs downhill. Nature always laughs last.” [51] These attitudes
are
essential to a problem-solving approach; they are essentially inconsistent with confrontation. Adopting
them, the legal community moves away from a zero-sum, adversarial system into a fertile, diverse
universe like nature’s own. The world of courts and lawyers becomes at once generative and highly
relevant to a society of people far more willing than they may have appeared in the historical past to
take responsibility for constructive resolution of conflict.
Problem-solving, unlike the adversarial approach, is naturally balanced. [52] When self-interest
is
defined more broadly, the adoption of cooperative attitudes and collaborative processes will follow. The
construction industry’s experience with mediation demonstrates that this is consistent with human nature.
[53]

II. The Construction Industry’s Experience with Mediation

Construction litigation provides a unique opportunity to learn how lawyers’ and judges’ concerns about
mediation play out in the real world. Construction lawyers are among the most experienced mediation
users in the United States today. [54] Mediation came to the construction industry in 1985,
long before
courts or lawyers had much interest in mediation programs, fast-track programs, or laws
encouraging mediation, such as the Civil Justice Reform Act. [55] The development of construction

mediation provides insight into the benefits mediation offers civil litigation because construction
mediation developed when few, if any, of those programs were in place.

The acceptance of mediation in construction litigation was due to a variety of factors, particularly the
desperate situation created by very high interest rates in the early 1980s. [56] This affected
contractors,
subcontractors, architects, engineers, and their insurers and lawyers, and threw owners into a frenzy of
claims and lawsuits. Design Professionals Insurance Company (DPIC), an insurer of architects and
engineers, spearheaded the move to mediation. In March 1985, Bernard P. Engels, then Vice-President
of Claims, and Elliott Gleason, then Assistant Vice-President of Claims, visited American Intermediation
Service (AIS), a small mediation firm in San Francisco founded by this author in 1982. The meeting
involved a discussion of the mediation process and its benefits. At the conclusion of the meeting, Engels
said, “I don’t believe a word you’ve said, but we’re going to do it anyway. We’ve got to do something.”

[57]
Gleason identified the cases for mediation. AIS’s assignment was to persuade the parties to agree to
mediate and then to conduct the mediations. Gleason remembers his instructions well:
“I asked the claims staff to pick cases that were at impasse for various reasons: perhaps our
insured had no liability but needed a forum to convince other parties of this; perhaps the case
was extremely complex technically; perhaps there was a party or lawyer with an attitude
involved in the case. Whatever the reason, the situation wasn’t going anywhere. We wanted to
put mediation to the test. I told them to pick some tough ones. The only way we could find out
what mediation could do was to try it. ”

“Within six months, we knew we were on to something. The results of the test were amazing.
Part of the reality of the 1970’s and 1980’s was that roughly one of three bid construction
projects ended up in litigation. Construction litigation is uniquely complex, with interwoven
issues of fact and law. Principals become actively involved in the litigation activity–something
that takes them away from their business. Experts are commonly used and are expensive.
Construction principals had every reason to prefer to spend their time pursuing their business
rather than pursuing the business of litigation. Counsel, by and large, were sympathetic. There
was, after all, a tremendous amount of construction litigation. [58]

Part of the strength of DPIC’s experimental use of mediation was that it avoided the pitfall of trying to
pick the “right” cases to mediate. Within eighteen months, both construction lawyers and their clients

began to choose mediation to help handle disputes in their industry. Following this initial experience,
these principals and their lawyers were convinced of the benefits of collaborative dispute resolution
methods, and DPIC implemented a comprehensive claims management program using mediation. Over
the next several years, they went even further, developing collaborative dispute prevention mechanisms
such as dispute review boards and partnering. [59] These mechanisms have gone far toward
reducing conflicts and, thus the need for litigation and mediation. The transformative power of mediation
showed participants that there is a better way to resolve disputes, and that creative solutions are still
possible when matters seem to be at an impasse.

The success and staying power of mediation was demonstrated by DPIC’s results from the first four and
one-half years of its program: 78% of referred claims were accepted into mediation by all parties; of
these, 76% were settled. [60] This is strong evidence of the power of a voluntary process when

mediation professionals extend the invitations to mediate. [61]

The continuing vitality of
mediation in the
construction industry is demonstrated further by the 1994 Construction Industry Survey on Dispute
Avoidance and Resolution (Survey). [62]
The Survey gives the benefit of mediation participants’ views, collected from the responses of more than
2,300 contractors, design professionals, and attorneys. [63] The Survey found that 64% of the
459
responding attorneys had participated in at least one mediation. [64] About 60% of these mediations

occurred within the two preceding years. [65] Nearly 25% had five or more mediation experiences,
and
14% had mediated at least ten times. [66] Ninety-five percent claimed to be at least “somewhat
familiar” with mediation, compared to only 62% in a 1990 survey. [67] Dollar amounts in
dispute weresignificant, averaging over $4 million, with a median of $1 million. [68]

The attorneys
responding to the 1994 Survey were highly experienced, with 80% having practiced law
for more than ten years and 33% having over two decades of experience. [69] They also were
highly experienced in construction law, with approximately 75%
claiming that at least 40% of their practice was construction-related. [70] There also is evidence
that these lawyers were willing to put their clients’ interests above their own: 60% said they would
recommend partnering, a process of dispute avoidance in which few lawyers ever become involved.
[71]

Partnering is derived in part from recent Japanese/American experience that develops mutual

commitment to common goals in an atmosphere of trust and cooperation, [72] seeking to prevent
and
mitigate problems before they become unmanageable.

The Survey found that mediation resulted in resolution of some or all of the issues in 67% of cases, [73]
while full settlement was reached in 59.1% of matters mediated. [74] Interestingly, in DPIC’s
experience
during the period of June 1985 to January 1990, 75.8% of the claims mediated were resolved. [75]

Although DPIC submitted matters for mediation that were not yet in litigation, there is one other
noteworthy difference between the two sets of results. In the Survey, fewer than 10% of the mediators
were professional mediators. [76] However, DPIC used professional mediators from the beginning.

[77]
In the Survey, the majority of mediators were attorneys. [78] While attorneys often start out
as
evaluators, which is much closer to the experience of traditional law practice, [79] they can
develop
significant mediation process skills if they have aptitude for mediation and develop essential
mediator skills. [80] One of the puzzling results of the 1994 Survey was the significant agreement
among
attorneys that mediators should be authorized to express their views on the issues. [81] Generally,

evaluating is not part of quality mediation. [82] Not until the next survey will it be possible
to probe this
issue with more incisive questions. This issue is important to the mediation profession because it is
inextricably connected to the defining principle of party control. There are many ways to express views
of possible outcomes, some controlling, some not. [83] The test is self-determination by the
parties.
Interviews conducted with lawyers in Seattle, Portland, San Francisco, and Los Angeles support the
findings of the Survey and provide additional insight. A Portland, Oregon, construction lawyer notes the
vast decline in construction litigation: “The percentage of routine construction projects going to litigation
is more like one in twenty today. With major construction projects, it’s more like one in eight to ten,
nothing like the one in three of a decade ago.” [84]

In Seattle, another construction
lawyer
assesses the critical role of the mediator and the changes in how mediation has been used over time:
In last seven to eight years, there has been a great increase in the use of mediation. At first,
mediation was novel. It was warmly received and very successful. About four to five years ago,
partnering and dispute review boards came along. The whole atmosphere in construction
became more dispute- prevention oriented. It seemed there was a lot less conflict. A lot more is
happening in terms of prevention, rather than conflict resolution. The vast majority still settle, but
people don’t believe as much as they used to, perhaps because being effective as a mediator is
so very, very hard. What the mediator brings to the process is critical to success. [85]
Today’s reality is that in construction “most sophisticated business people do not litigate.” [86]

All these lawyers agree that major public works may be more prone to litigation because of
potential political problems, but find that even these usually are resolved, often in mediation.
[87] Construction law work regarding shopping centers, condominiums, and residential
developments is a different matter.
In the view of one San Francisco construction attorney, much of this business is controlled by general
liability carriers and today these are often defended by casualty defense lawyers rather than construction
lawyers. They rarely get to mediation and tend to be referred to retired judges and wallow along in
endless conferences. Often we just don’t participate. That at least saves fees. [88]
Another San Francisco construction lawyer has a creative strategy for getting a mediation plan
approved by opposing counsel and adopted by the court. The retired judges don’t insist on compliance with their
orders and requests and let
counsel and clients opt out of conferences. Those who go perhaps go to just be with the flow.
But even general liability carriers get annoyed by being called to settlement conference number
eight.

My strategy is to go to the presiding judge upon the first contact under Fast Track to persuade
plaintiffs’ counsel to proceed with a mediation plan, setting forth a time table of activities,
culminating in mediation three months, six months or nine months later. These plans only get
through if we represent owners or general contractors, because design professionals are usually
brought in after the special master process is underway. The problem is that most plaintiffs’
attorneys are uncomfortable without what they believe is the hammer of the special master. We
then agree that if there are disputes under the mediation plan, the disputing parties may go to the
special master at those parties’ expense. [89]
Insurers report that the number of claims against architects and engineers has been reduced dramatically
over the past two years. [90] This also indicates a change in the field.

CH2M Hill General
Counsel
Wyatt McCallie states why:
First, litigation is a poor way to make money; second, the construction companies feel it is
hurting their relations with clients to be constantly suing people. There is a lot more partnering.
The engineers and the contractors have figured out that it’s in no one’s best interest to be surly to
one another. There is more understanding, more savvy, more common commitment to bringing
in the project on budget and on time. Engineers also are trying to be more realistic about the
demands placed on contractors. I believe that the change is largely permanent. It won’t go
away. [91]

Many lessons can be drawn from the experience of the construction industry. For example, the Survey
found that lawyers “overwhelmingly rejected yesterday’s popular wisdom that proposing mediation was
a sign of weakness, or that revelation of confidences or trial strategy was a serious drawback to its use.”

[92] The previous 1991 construction industry survey also found no perceived prerequisite for

discovery prior to mediation. [93] However, respondents appreciated the advantage that focused

discovery and informal exchanges of information can provide. “While more respondents found mediation
appropriate right before trial (81.7%), a strong majority (60.1%) of those responding favored mediation
even in the absence of discovery.
A number of respondents envision a middle ground in which discovery is limited to that basic quantum
of information needed to permit informed settlement.” [94] By simply using a declaration
under penalty
of perjury, parties can negotiate for the same level of authenticity in a voluntary exchange of information
as they can secure through discovery. [95] In this way, premediation and mediation exchanges
establish
trust, rather than erode it.

The Survey also found that “to some extent, therefore, increasing the number of parties . . . does not
appear to reduce the odds of settlement[,]” [96] reflecting, perhaps, a realistic assessment
of the
alternatives to settling. Except where large sums of money are involved, most respondents disfavored
making mediation mandatory, perhaps because, in construction work, mediation may readily be
provided for by contract; in addition, ad hoc mediation is widely accepted. [97]
The experience of the construction industry provides more significant lessons, particularly for the courts.

There is evidence that judicial manipulation of cases with discovery cutoffs, referrals to special masters,
and crushingly early trial dates only disrupt effective resolution. [98] Contrast this with
less intrusive
judicial treatment: if one or more counsel are recalcitrant, a judge can hold matters in abeyance until
mediation has occurred and ask for a report about the parties’ progress. A nudge from the judge
is a time-honored tradition and is more productive than rigid case management orders. [99]

According to the construction industry experience, motivation is the key to success with the nonlinear
process of mediation. Indeed, the Survey indicated a statistically significant correlation between success
in mediation and parties developing their own rules and procedures for the mediation process. [100]

The process of litigants developing procedures demonstrates that they can agree. This ability builds
trust, the currency of mediation. The construction industry experience shows that experienced lawyers
and sophisticated clients can use a balanced approach to resolving conflicts. With experience, they can
apply the practical tools of mediation in other business settings, thus reducing the need for both litigation
and mediation.

III. The Challenge for Courts

The move to ADR is taking place in the context of accelerating change because of decades of “. . .
popular dissatisfaction with the administration of justice.” [101] As the law becomes
more
voluminous, complex, and uncertain, transaction costs increase. [102] It is a paradox that
settlement
becomes more attractive with the greater complexity of adjudicated justice.
[103] Criminal cases are claiming an increasing percentage of judicial time. [104]
Court funding is in
decline, and this trend is likely to continue. Demanding rules [105] and gate-closing decisions
are driving
civil disputants away from the courts. [106] They are walking away because of “the way
people
perceive the controversies that affect them, and their [desire for] involvement in the search for solutions.

[107] The percentage of civil cases going to trial is in a long and consistent decline. [108] And where
the courts are strongly fostering mediation, its use is becoming common. [109] Many judges,

scholars, and researchers now agree, at least in part, with Frank Sander’s early vision that the
courthouse must be more than simply a place for litigation; [110] that courts should redefine
their role,
transforming it from a narrow focus on adjudication to a broader focus on assisting parties in various
ways to resolve their differences. [111] Legislation in some jurisdictions now enables courts
to refer civil
disputes to mediation and other ADR processes, and courts have been pushed hard to do just that.
[112] In reality, courts already are involved in the appropriate dispute resolution business.
[113]

As Marc Galanter and Mia Cahill in the article: “Most Cases Settle: Judicial Promotion and Regulation
of Settlements,” wrote:
. . . it is common knowledge that most remedy seeking in the vicinity of courts is going to
eventuate in settlement. We share an inescapable awareness that courts do more than
adjudicate. They preside over a cluster of dispute processes of negotiation, mediation, and
arbitration, some within the precincts of the courts and some at a distance. [114]
. . .

Rather than two separate tracks–adjudication on the one hand and negotiation and settlement
on the other–there is a single process of pursuing remedies in the presence of courts. For
mnemonic purposes, we attach to it the fanciful neologism “litigotiation.” [115]

The appropriate question for courts in the vast majority of cases is “when, how, and under what
circumstances should cases be settled?”
[116] Litigotiation is not the most effective method to resolve disputes. As commonly practiced,
it
involves a lot of costly efforts that promote a satisfactory negotiated resolution only tangentially, if at all.

One major reason for this is court rules that are designed to hurry cases along to trial, a trial that only a
tiny pecentage of disputants ever will face. This approach is like looking through the wrong end of the
telescope.
Fortunately, there is a remarkable model that shows that a court system partnering with a law school
and the ADR community can create a healthy, high- quality ADR–and particularly mediation–resource.
With no calendar crisis, the Florida Supreme Court, in conjunction with the Florida State University
College of Law, founded the Florida Dispute Resolution Center in 1986 to “provide assistance to the
courts in developing ADR programs [and] to conduct education and research on ADR in general.” In
her 1996 Report, Director Sharon Press states modestly that since then “the uses of mediation have
grown as the Legislature and the judiciary have created one of the most comprehensive court-
connected mediation programs in the country.” [117] There now are 8,060 individuals who
have
completed Florida Supreme Court certified mediation training programs. The court has certified 1,636
county mediators, 1,478 family mediators, and 1,758 circuit mediators. [118] There are approximately

100,000 court-connected
mediations in Florida annually, more than 20,000 of which are channeled through the circuit
courts. [119] These figures donot include the substantial number of mediations in which courts
are not
involved. [120]

Many courts are still focusing inappropriately on managing the vast majority of cases as if they were
going to trial. [121] The crux of the matter is the wise handling of the cases that are going
to be resolved
without trial. [122] Management of these cases needs to be appropriate to their journey to
settlement or
other resolution. There is still strong need for judicial oversight–not of the terms of settlement except in
cases where the public interest demands it–but of the processes required of parties as their dispute
wends its way to resolution. In this task, giving litigants choices allows the market, instead of courts, to
test the authenticity and credibility of these processes. For cases that are going to settle, rules such
as California’s Fast Track look a little like staging a roundup when all that is needed is a little grain and a

whistle. These rules may be so disconcerting to litigants that they seek settlement as a means of escape.
[123]

But is that justifiable?
The challenge is to turn the situation around so that court oversight occurs only in appropriate situations,
and to avoid occasional appearances of impropriety. Parts A and B, which follow, discuss two steps
that are necessary to achieve these goals.

A. Foster Mediation

Whatever courts do with respect to extra-judicial dispute resolution resources impacts heavily on the
growth of the field. [124] That is why discretion is so important. Mediation, because it is
a process and
not a procedure, is sufficiently foreign to the experience of the courts and lawyers not skilled in its use
that humility is in order. Controlling parties’ access to outside mediation resources, for example, can taint
references and dampen the vitality and creativity in this emerging field.

Setting standards for mediators in
the absence of extensive experience with them is like Russian roulette–only through chance can
something good happen.
For lawyers and judges particularly, mediation must be experienced in order to be understood. Broad
experience gives intimate
knowledge of the process. Without it, one can only know about mediation. [125] If one only

knows about mediation, reliance on mediation research is not wise.

Most research has been conducted
in narrow and unique fields, such as organized labor and management mediation, [126] community
and
small claims mediation, [127] and divorce mediation. [128] These defy
translation to general civil
litigation. Even within these fields, the contradictions are numerous and profound. [129]

Moreover,
many prior studies exclude too many variables that are significant contributing factors to outcomes,
making the conclusions seem speculative at best. [130]
The challenge to courts is to foster mediation by managing the court’s own panels, by allowing
recourse to the private sector and loosely monitoring the results of its utilization, and by keeping up an
open dialogue on the subject with counsel and, at times, litigants and providers. By keeping in mind the
goal of providing disputants with resources to secure quality outcomes to their disputes, courts can get
the best results possible. [131]

Litigation has its place, and mediation is no substitute
for it. Improved
calendar management through mediation is often an incidental side- effect, but it is not the purpose of
referring matters to mediation. [132] The purpose is to facilitate quality resolution at reasonable
cost.

There is value in getting to know mediation on its own terms, rather than trying to reshape it in the image
of its jurisprudential relatives–arbitration and judicial settlement conferencing.
Consider the way mediation, compared with litigation, relates to issues. Mediation narrows the
issues to those most relevant to the parties’ ability to resolve the dispute; it then expands the focus to
include other concerns so that underlying interests can be satisfied. Mediation’s strength is its focus on
addressing the full range of issues the parties bring to the table. [133] It requires a balanced
approach,
in which the logical and rational aspects are blended with intuitive knowledge, contextual considerations,
and the ability to deal with the emotional side of the conflict. On the other hand, litigation expands the
legal issues, many of which are peripheral, for lawyers generally are penalized for failing to raise an
issue, not for raising too many issues. Moreover, litigation is concerned only with legal and factual
issues, not broader issues that affect and influence the parties. Litigation narrows the focus within those
issues to the legal implications and supporting evidence.

The Problem-Definition Continuum developed by Leonard L. Riskin is a useful model for understanding
the balanced approach of mediation. This model incorporates traditional litigation interests with the
parties’ business, personal, professional, relational, and community interests. [134]

Another
important
consideration is the mediator qualifications. While no one questions a court’s right to set qualifications
for its own mediator panels, many question the wisdom of doing so without reliance upon the mediation
community. The mediation community is looking for consensus around a combined objective and
subjective standard with both more subtlety and more accuracy than a straight objective standard.
Courts are not qualified to set these standards. Efforts in the past have led to heavy reliance on paper
credentials in other fields such as law, medicine, mental health, and accounting. [135]

That
is a
fairly desperate step and speaks volumes about the poor understanding judges and legislators have of
what mediation is all about. Because the mediation profession itself is still very much unresolved on the
issue of qualifications, courts may be well-advised to hold a loose rein and deal with problems through a
grievance procedure. Here, again, there is a Florida model. [136]

The kinds of complaints Florida has received show common concerns that are unique to mediation,
namely “failure of the mediator either to allow the parties to exercise self-determination, to act impartially

or to refrain from providing professional advice.” [137] That plus the very small number
of complaints–
20 out of 100,000 references per year–suggests that little will be lost if party-selected mediators are
not made subject to court-imposed standards. [138] The risks of standardization to the vitality
and
effectiveness of the mediation process outweigh the benefits of having standards, but there is much
controversy on this point. [139]

The skills required to mediate expertly are definitely identifiable. Mediation requires patience, stamina,
and a wide variety of strategies and skills. [140] These skills include the ability to ask
pertinent questions
and to be silent when appropriate, a good sense of timing, empathy with people, an open mind,
and a commitment to neutrality. [141] The tremendous demands on mediators are one reason for
the
lack of volunteer mediators for matters pending in courts of general jurisdiction. As one member of the
federal court’s volunteer panel in Portland, Oregon, observed, “I couldn’t do it if it were more than one

or two cases a year. It just takes too much effort and the cases can go long into the night.” [142]

Courts
of general jurisdiction that continue to require parties to use unpaid volunteer mediators weaken their
programs. While an occasional pro bono mediation may be considered an honor, frequent referrals are
an imposition. In our society, the failure to receive compensation, even nominal compensation, [143]
is a
badge of insignificance. Consequently, few cases are referred to volunteer mediators. Court reliance on
volunteer mediators inhibits the development of a pool of qualified mediators who will make a
professional commitment to the work. [144]
Florida’s volunteer mediation program addresses this problem by giving parties their choice of
mediators. They must hire a private mediator when they do not use the volunteer list. [145]

This
gives volunteer mediators with professional aspirations a market for the skills and experience they
acquired while volunteering and thus strengthens the volunteer program while building the mediation
resource. Florida never has been averse to compensating mediators. [146] Florida is somewhat
unique
in having a large retired population, unlike many other areas; and there apparently has been no
diminution in interest in serving weekly on volunteer mediation panels. [147] Florida’s thriving
fee-for-
service, private-sector model of mediation exemplifies successful development of the mediation
resource. [148]

Contrast the experience in Florida with that of Wisconsin and Oregon. In Wisconsin, mediating was
identified early by public-interest groups as a service that attorneys should perform pro bono. But
Wisconsin’s caseload has been much smaller than Florida’s, even taking into account population
differences. A leader in the Wisconsin mediation community observed that a shortage of those willing to
put in the substantial time and effort required is only part of the problem. [149]

The U.S.
District Court
for the District of Oregon also uses volunteer attorney-mediators, and the program has been so inactive
that the District does not even keep statistics on referrals. [150] Both of these programs
were
early entrants in the ADR field, when pro bono was the customary approach. The practice of using
unpaid panels is changing, however: “In a significant shift from past practice, most courts do require
parties to pay a fee to the neutral . . . . Today, of the forty-one courts offering attorney-based
mediation, only nine provide that service pro bono (and one . . . provides mediation through a staff
mediator).” [151]

The ways in which mediators function is another important consideration. Professor James Alfini
describes three approaches–trashing, bashing, and hashing–which offer considerable feel for the
process. [152] Professor Leonard Riskin identifies four types of mediators: evaluative-narrow,

evaluative-broad, facilitative-narrow, and facilitative-broad. [153] However, within the mediation

community, there is substantial feeling that evaluation is not really mediation.[154]

Moreover,
formal
ethical standards seem to be moving toward discouraging evaluations in order to protect the
parties’ right to self-determination. [155] It is widely viewed as improper for a mediator
to give legal
advice. [156] Nevertheless, there still is much room for mediators to express perceptions
in ways that
do not constrain the parties. It is important that they do so in situations where the parties are
unrepresented and the problem of vulnerability to influence is compounded significantly. [157]

An
example of the different ways mediators work is their use of pressure. Mediators use varied techniques
to pressure parties.
However, the issue is not the use of pressure, but its direction. Lawyers are sometimes strong advocates
for aggressive mediating that will pressure the parties toward settlement. [158] Although
many lawyers
believe this is the most powerful approach, many highly skilled mediators think otherwise. [159]

If the
mediator pressures parties toward an outcome that the mediator has decided is best (contrary to ethical
mandates governing mediation), [160] the parties’ control of their dispute is threatened.
Yet the
mediator is there, often, because the parties are at impasse. This is where mediator tenacity pays off.
Yet tenacity itself can be a form of pressure. [161]

One critical area of concern is the way in which mediators deploy their expertise. It may be difficult for a
mediator, perceiving that she has superior knowledge, to effectively place the decision-making process
in the parties’ hands. Indeed, one key contribution of effective mediation is the mediator’s ability to help
position the parties so they can tap into their own wisdom. This ability requires not only human relations
skills, but a high level of mediator maturity as shown in his or her emotional, mental, and spiritual
development. [162]

In the early days of construction mediation, many mediators received their training from non-lawyer
mediation professionals. [163] They learned that it was the parties’ dispute and ultimately
the
parties’ responsibility to resolve it. As professional information givers and advisors, lawyers encounter
built-in hurdles in shifting to a more facilitative role. Another question the courts face is “who is allowed

to mediate?” Most court program mediators are lawyers. [164] Some are intentionally untrained.
[165]

Others are trained, but not always by professional mediators. The Florida experience is instructive in this
regard. In Florida, training is the key; mediators need not be lawyers or former judges, except on circuit
court panels. [166] Shutting non-lawyers out of mediation work will only drive litigants away
from the
courts and from lawyers.

Judges and lawyers should seek to understand, perhaps by observing in districts other than their own,
how non-lawyer-mediators enrich the process for everyone. (The term “non-lawyer” is common in legal
circles and denotes a lack of status. It is used here in part to illustrate how we in the legal profession
think about these things.) From its inception in 1988, the Florida program provided that mediators could
not be certified to serve on circuit court [167] panels unless they were licensed to practice
law in
Florida or were former judges from any jurisdiction. [168]

However, the impact of that restriction
was
reduced significantly in 1990, when disputing parties were given the opportunity to select their own
mediators without restriction on mediator qualifications. [169] Today, parties select their

mediators in 90% of the cases referred to mediation. [170] This freedom of choice keeps the
program
independent and has allowed mediation to retain characteristics it would lose if only lawyers were
permitted to mediate. [171]

One weakness of court mediation programs has been their tendency to value substantive legal expertise
about the dispute more highly than mediation expertise. However, experienced usersof mediation in
construction disputes rank the importance of legal expertise in the mediator behind impartiality, ability to
manage proceedings, ability to listen, discretion and trustworthiness, ability to understand complex
issues, patience, creativity and the ability to explore alternatives, persuasiveness, and design or
construction experience. Of fourteen characteristics, legal expertise in the subject matter rated third from
last in importance.

[172] Where there are court ADR rosters, questions arise: Can litigants be confident in the
courts’ ADR
processes? Do current ethics rules offer real guidance to lawyer-mediators on conflicts of interest,
confidentiality, and rendering legal advice? Do we need local or national standards for training, ethics,
competence, and liability? [173] The more courts control the mediation process, the more pressing

these questions become. Giving the parties choices about which mediators to use and what kind of
process they want is pivotal. The courts do not need to control these aspects, except for their own
mediator panels.

B. Integrate Docket Management Tools to Create a System of Appropriate Dispute Resolution

That Fosters Quality Outcomes Justice Olsson of the Supreme Court of South Australia suggests the
following framework for mandated mediation:
[I]t must carefully be designed so that it does not take, as its predominant aim, merely the
interest of the court in facilitating the effective and efficient administration of its business. On the
contrary, it must reflect the proper desire of litigants for an accessible, fair process of dispute
resolution, which will produce a quality outcome at an affordable cost. [174]

Courts can accomplish more by allowing things to happen rather than by causing them to happen. If that
sounds weak, it is because we are using the wrong paradigm–the Power Over paradigm rather than the
Power With paradigm. A rules review is a good place to start, determining whether the rule being
invoked is appropriate to the case and serves the purpose of fostering development of a healthy,
diverse, ethical, and professional resource for disputants.
The use of special masters illustrates the clash between traditional case management and the search for
appropriate dispute resolution. California’s broad use of special masters for discovery and settlement
shows that when courts favor outside resources, their use prospers. Today, discovery mastering is all
but mandatory in some types of California cases–for example, construction.
[175]

Lawyers knowledgeable in mediation, claims professionals in the construction field,
and some
courts find the California situation burdensome because they feel that it is far less efficient than
mediation. The California courts are aware that judges on the bench may appear to be feathering their
nests for the time when they, too, retire to private ADR practice. In McMillan v. Superior Court,
plaintiff’s counsel sought successfully to vacate an order
requiring the law firm to pay a share of the referee’s $42,000 in fees. [176] The trial court’s
ruling was
made despite the client’s objection to the referee, and a failure by the trial court to find that the fees
were reasonable and necessary or that the party had the ability to pay. In dictum, Judge Miriam Vogel
observed:
In the three years since Solorzano was decided, our colleagues’ plea for vigilance has been
generally ignored. Indeed, we have seen an increased number of references to an exponentially
growing number of available retired judges, and a dramatic increase in hourly rates and total
billings, leaving those of us who remain in the public system to address the problems inherent in
the creation of a second, separate judicial system.
. . .

To say that the judicial system is suffering from the competition among and the conduct by some
private judges and mediators is to state the obvious. [177] McMillan was a wrongful termination

case, which typically would settle in early mediation. Experienced counsel throughout the West
routinely take these matters to mediation with little discovery–at times even with no suit filed–
with a settlement rate above 80%. [178] One lawyer who usually defends these cases
sometimes uses affidavits from each side in lieu of a deposition to better assess the case and
establish an evidentiary baseline before the probable disclosures in mediation, which might
shape later testimony. [179]

McMillan is instructive in showing that too much court control in requiring specific ADR procedures and
providers can be perceived as self-interest on the part of the judge. In this way, it complicates the
courts’ job of developing ADR by necessitating the creation of procedures that prevent even the
appearance of self-interest. The problems posed in McMillan can be addressed relatively easily. First,
parties can be given a chance to choose something other than special mastering. The parties are better
equipped to make this decision than the courts are because they have more information than the
judge does. If parties truly are seeking assistance in settlement, the evidence suggests that they will
choose mediation. If parties are seeking assistance in resolving a discovery dispute, they may choose a
special master.

Second, the parties can be allowed to choose their own special master. Special masters develop a
reputation among their clientele that may be unknown to a judge. And, as pointed out earlier, allowing
the parties to make these choices actually can improve their odds of reaching a resolution. [180]

Moreover, giving the parties this option lays to rest any suspicion of self-interest on the part of the
judge. The judge in a free-choice environment is stimul