When you are fully immersed in mediation every day, it’s easy to underestimate how strongly some people feel about it – take for example Harvard Law School’s Peter Murray and his acerbic piece, The Privatization of Civil Justice that was published in the summer edition of the American Judicature Society’s Judicature magazine.
No free full text link but as best I can, and mindful of tripping that copyright wire, I want to give you the flavour of it;
First, Professor Murray traverses the usual vanishing trial complaint, after which he outlines his view of the consequences of less public litigation and quickly focuses in on arbitrators and mediators who rely on repeat players for their work.
He then builds a conspiracy theory that ‘arbitrators and mediators can handle and decide cases more or less in their own economic interests without fear that their activities and decisions will be subject to effective judicial oversight’.
With headings such as ‘Delegation of Public Power’ and ‘The Dark Side’ Prof. Murray opines that mediators are under the same pressure as arbitrators ‘to produce results that are acceptable to the repeat players. Mediators know that large repeat players such as insurance companies will not refer cases to mediators who fail to produce acceptable settlements… The problem with private ADR services is that they are private. Private actors will always act in maximise their well-being under whatever system they function’.
To highlight Murray’s view that there is ‘a kind of insidious corruption’ undermining the integrity of our field, I quite unfairly pick out the money quotes from his piece;
‘Resolutions embodied in agreements based on economic exhaustion, inability reasonably to predict or reach a judicial outcome, or risk aversion are not economically efficient and do not foster confidence in the norms or processes of law’
‘Organizations of ADR professionals such as JAMS or Endispute in the United States offer panoplies of dispute resolution services to meet the needs of their customers. The field is crowded and the competition among mediators to obtain cases remains keen. The problem with this competitive private industry in dispute resolution services is that the pressure on the professionals to garner more cases inevitably leads to a kind of insidious corruption that undermines the integrity of private dispute resolution as an alternative to public justice. The fact that the employment of every ADR professional depends on a private party’s choice to hire that professional or sponsoring organization logically means that every ADR professional is under direct economic pressure to do whatever he or she can to encourage parties to exercise their freedom of choice in his or her favor…
Mediators know that large repeat players such as insurance companies will not refer cases to mediators who fail to produce acceptable settlements. By the same token, mediators who are able to convince individual claimants to reach agreements favorable to the repeat players can expect repeat business…
Private actors will always act to maximize their well-being under whatever system they function. The private ADR system under which decision makers are paid on a case-by-case basis inevitably tends to reward those who satisfy the repeat players to the detriment of objective merits…
The only parties who can monitor the performance of dispute resolution professionals, be they arbitrators or mediators, are those who are regularly involved in dispute resolution proceedings. It is the repeat players who are able to “keep score.”
The susceptibility of private entrepreneurial dispute resolvers to influence by hope for future business is one of the primary justifications for systems of justice designed to insulate public decision makers from such influence…
…the form in which private justice is currently dispensed facilitates the kind of subtle corruption just mentioned and impedes review and discovery…
Arbitrators and mediators can handle and decide cases more or less in their own economic interests without fear that their activities and decisions will be subject to effective judicial oversight.
ADR gives private, profit-making enterprises a certain amount of public power that can be misused in their private interests, and then clothes their activities in secrecy and dispenses with oversight to maximize the practical possibility that such misuse might occur.
I mean, yes there is a vanishing trial discussion to be had to go along with the rise and rise of court alternatives but is the main debate really the neutrality, or worse the corrupting influence, of mediators?
It sounds to me Mr Murray that you have baggage – care to share?