The “What” of Mediation: When Is Mediation the Right Process Choice?

In 1999, Steven Keeva, the editor of the ABA Journal and author of Transforming Practices: Finding Joy and Satisfaction in the Legal Life, had this to say about ADR:

While alternative dispute resolution has made encouraging inroads over the last twenty years, the adversarial system continues to hover above ADR like an elephant over a chipmunk. ^[1]

I now suggest to my students that, in less than a decade, the metaphor has completely changed. ADR is now the elephant hovering over the chipmunk of litigation.

For instance, a review of the ADR referral policies of the district judges in the United States District Court for the Eastern District of Missouri shows that the eight judges will refer almost all cases to mediation, especially if they present fact issues. ^[2]The judges do not make referrals when the cases involve: only questions of law; appeals from rulings of administrative agencies; habeas corpus and extraordinary writs; bankruptcy appeals; Social Security cases; and prisoner civil rights cases. ^[3] For most experienced mediators, even this list of excluded cases raises questions about why the judges have deemed these cases inappropriate for mediation. ^[4]

All of us have heard about mediation of personal injury cases or child custody matters. But a review of the headlines appearing over the past several years indicates the increasing use of mediation at earlier stages in the dispute – often pre-litigation – in an increasing variety of matters.

• White rap singer, Eminem, will use mediation to resolve the terms of his second divorce from his high-school sweetheart after a judicial settlement conference failed to bring the parties to agreement. ^[5]
• African-American plaintiffs dropped a 38-year old lawsuit seeking desegregation of Tennessee’s college and professional school educational system after hammering out an agreement in court-ordered mediation six years earlier. ^[6]
• The Securities and Exchange Commission mediated fraud claims of $800 million that it had filed against ousted chief executive of the HealthSouth Corporation. Courts had already referred the company’s investors, in related lawsuits, to mediation. ^[7]
• A very public sexual harassment suit filed against the former sheriff of Roanoke, Virginia entered mediation in early 2006 by court order. ^[8]
• Major League baseball requested a pre-suit mediation with Washington, D.C. after the city failed to approve, by a December 31, 2006 deadline, a lease for a new ball park designed for the Washington Nationals. Without the lease — the pre-cursor for the planned $535 million bond-funded stadium located in Southeast Washington — the commissioner’s office would not sell the team, formerly the Montreal Expos, to the city. ^[9]
• A federal judge ordered Barry Scheck — a prominent New York lawyer facing a $3 million malpractice suit for having missed court filing deadlines in a client’s rape and robbery case — into mediation with the former client.
• The family of deceased civil-rights icon, Rosa Parks, engaged in pre-suit mediation of allegations of undue influence with the people Ms. Parks appointed to handle her estate. ^[10]
• The Federal Aviation Commission, nearing impasse in its contract negotiations with unionized air traffic controllers, requested mediation. ^[11]
• The New Jersey Division of Youth and Family Services agreed to mediate with an advocacy group, Children’s Rights Inc., in an effort to prevent a take-over by the federal government of the state’s child welfare agency. The advocacy group alleged that the state had failed to overhaul the system as agreed. ^[12]
• World Trade Center architect and master planner, Daniel Libeskind, entered mediation in an attempt to resolve his lawsuit for $843,000 in fees that he filed against the site leaseholder, Larry Silverstein. Silverstein requested the mediation within a week of the lawsuit’s filing. ^[13]
• Mexico’s then-president Vincente Fox agreed to have his country act as a mediator between Columbia’s government and guerrillas in their forty-year conflict. ^[14]
• A judge ordered two younger teenage boys – accused of killing their father – to mediation with the prosecution after the judge ordered a new trial in a case carrying a 20-year to life sentence. ^[15]

The use of mediation to resolve conflicts seems limited only by the support of courts, the will of the parties, and the creativity of their counsel.

Disputes Suitable for Mediation

Hal Abramson, the author of Mediation Representation: Advocating in a Problem-Solving Process, suggests that certain types of disputes are especially amenable to mediation:

• When the parties have conflicting views of the facts or law;
• When a party needs to express strong emotions; ^[16]
• When a party craves the opportunity to be heard directly by the opposing party;
• When clients or their lawyers can no longer effectively communicate with each other without the assistance of a skillful mediator;
• When the parties are not skillful negotiators and need the process structure and negotiation expertise provided by a mediator; or
• When a conflict exists between a party and his or her attorney. ^[17]

Christopher Moore — a partner in CDR Associates, a mediator since 1979, and author of The Mediation Process: Practical Strategies for Resolving Conflict – would also consider these factors:

• The emotions of the parties are intense and are preventing a settlement;
• Communication between the parties is poor in either quantity or quality and they cannot change the situation on their own;
• Misperceptions or stereotypes are hindering productive exchanges;
• Repetitive negative behaviors are creating barriers to settlement;
• Disagreements over data hinder its collection and evaluation;
• Multiple issues in the dispute keep the parties from agreeing about the order and combination in which the issues should be resolved;
• The parties perceive their interests as incompatible;
• The parties have no negotiating procedure, they are using the wrong procedure, or they are not using a procedure skillfully;
• The parties have no acceptable forum for the negotiation;
• The parties are having difficulty starting the negotiations; or
• The parties have reached impasse in the unfacilitated negotiation process. ^[18]

I would add to this list cases in which the parties:

• Need to protect in a confidential process reputations, good will, trade secrets, or a good name;
• Seek to avoid the emotionally and psychologically exhausting process of litigation;
• Seek to avoid the distraction –especially in a business setting – of ongoing litigation;
• Seek to avoid the expense of litigation;
• Need a much quicker resolution of the dispute;
• Cannot accurately predict the outcome at trial;
• Desire to maintain control over the dispute resolution process design;
• Need more than an award of damages or an injunction;
• Seek some sort of compromise solution rather than a win-lose outcome;
• Desire to maintain control over the outcome;
• Seek to avoid the decisions of a biased adjudicative neutral; or
• Cannot afford the expense of skillful and higher-paid lawyers, expert witnesses, or other representatives in litigation.

Disputes Less Suitable for Mediation

Abramson suggests that the following types of disputes or circumstances make mediation less desirable:

• The party needs to establish binding precedent;
• The party needs to deter future claims by establishing a “hard-ball litigation – no settlement reputation” (aka the Wal-Mart strategy);
• The party seeks validation or vindication by a person in authority who declares that the client was blameless, but the other party was a low-down, dirty SOB; ^[19]
• The party wants or needs to go for a litigated “jackpot” damage award, no matter the statistical chance of winning that award;
• The parties are embroiled in a value-based conflict on which they see no room for compromise;
• The party will not be effectively represented in mediation, either because he or she is unrepresented or represented by inexperienced or unskillful counsel;
• One or more parties refuses to participate in good faith in the process; or
• One or more persons essential to a resolution can not be brought into the process. ^[20]

I would add to this list disputes in which:

• A party seeks retribution;
• A weaker party needs the power of the court or of law to balance an imbalance of power or resources.

The Maryland Handbook for Lawyers identifies four types of disputes in which mediation would not be successful or is not appropriate:

• When a party vicitimizes the other party;
• When alcohol or drug abuse plays a significant role in the dispute or undermines a party’s ability to effectively participate in the mediation;
• When only a court can offer a remedy to the dispute, especially in matters of first impression or those matters requiring injunctive relief;
• When relationships cannot be healed. ^[21]

I would challenge two components of this list. While the mediation community continues to debate whether victims of spousal abuse or domestic violence should ever participate in mediation, several authors suggest that with sufficient safeguards the process may offer an attractive alternative for abused spouses. ^[22] One of my former students, a victim of spousal abuse, wrote a seminar paper advocating the use of med-arb in divorce proceedings involving abused spouses. ^[23] After her experience in the West Virginia court system, in which a judge openly expressed his bias against her, she preferred a process giving her more control, especially, over the outcome.

I would also suggest that mediators successfully handle many cases in which the parties either had no pre-existing relationship (auto accident cases) or do not wish to preserve the relationship (divorcing spouses with no children).

Still other authors identify those attributes of a dispute or of the parties that will make mediation more successful. They include: a positive state of mind; good faith; adequate settlement authority; flexibility; patience; realistic expectations; preparation; a willingness to listen; an effective negotiation strategy; creativity; and honesty. ^[24]

As mediators, lawyers, and their clients gain more experience with mediation, fewer and fewer types of disputes will seem less amenable to the process. Even if mediation only succeeds in improving the parties’ communication, in identifying their underlying interests, in narrowing the issues in conflict, or in helping them more carefully evaluate their litigation option, it can move the dispute towards a quicker, more cost effective resolution.

End Notes

1 STEVEN KEEVA, TRANSFORMING PRACTICES: FINDING JOY AND SATISFACTION IN THE LEGAL LIFE 102 (1999).

2 http://www.moed.uscourts.gov/forms/ADRDistrict.pdf.

3 Id., referring to Local Rule 16-6.01(a), available at http://www.moed.uscourts.gov/ documents/loclrule.pdf.

4 No empirical research supports the statement that some disputes are “best” for mediation. In fact, data on settlement rates and party satisfaction with mediation does not vary significantly based on type of dispute mediated. At the same time, disputes are more likely to settle in mediation if the parties’ positions are already fairly close, the issues are less complex, or the issue of liability is less strongly contested. Bobbi McAdoo, Nancy Welsh & Roselle L. Wissler, Institutionalization: What do Empirical Studies Tell us About Mediation?, DISP. RESOL. MAG., Winter 2003 at 8, 9.

5 http://news.yahoo.com/s/ap/20060919/ap_en_mu/people_eminem_divorce.

6 Theo Emery, After Steps to Desegregate, Plaintiffs Drop Tennessee Suit, N.Y. TIMES, Sept. 12, 2006, at A19, available on Westlaw at 2006 WLNR 15784855.

7 HealthSouth Mediation Order, N.Y. TIMES, Sept. 20, 2005, at C2, 2005 WLNR 14786527.

8 Lindsey Nair, Judge Refers Harassment Suit to Mediation, ROANOKE TIMES & WORLD NEWS, Feb. 28, 2006, at B1, available on Westlaw at 2006 WLNR 3479328.

9 Baseball Files for Mediation, RICHMOND TIMES, Jan. 5, 2006, at D8, available on Westlaw at 2006 WLNR 2194699.

10 National Briefing Midwest: Michigan: Mediation in Parks Dispute, N.Y. TIMES, May 10, 2006, at A 20, available on Westlaw at 2006 WLNR 7992504.

11 Matthew L. Wald, F.A.A. Calls for Mediation in Talks with Controllers, N.Y. TIMES, Nov. 11, 2005, at A20, available on Westlaw at 2005 WLNR 19186814.

12 Richard L. Jones, Metro Briefing New Jersey: Trenton: Child Welfare Mediation Scheduled, N.Y. TIMES, Oct. 18, 2005, at B8, available on Westlaw at 2005 WLNR 16844077.

13 George James, Metro Briefing N.Y.: Manhattan: Mediation Ordered in Trade Center Suit, N.Y. TIMES, July 22, 2004, at B4, available on Westlaw at 2004 WLNR 5598451.

14 Antonio Betancourt, World Briefing Americas: Mexico: Mediation in Columbian Conflict, N.Y. TIMES, June 8, 2004, at A11, available on Westlaw at 2004 WLNR 4787661.

15 Mediation Begins for Boys in Slaying of Father, N.Y. TIMES, Nov. 9, 2002, at A14, available on Westlaw at 2002 WLNR 4088824.

16 Every now and then I here a comment about cases not suitable for mediation that literally makes my head whip around. This comment is often made by retired judges-turned-mediators or lawyers-turned-mediators who are not well-trained or well-versed in the expanding literature on the role emotions play in negotiation or mediation. The comment goes something like this: “High-emotion cases just don’t work in mediation. You’ve got to keep the parties from getting too emotional. Emotions just get in the way.” But see ROGER FISHER & DANIEL SHAPIRO, BEYOND REASON: USING EMOTIONS AS YOU NEGOTIATE (2005); Eileen Barker, Tips for Dealing with Emotion in Mediation, www.mediate.com/articles/ebaker2.cfm; Paula M. Young, Emotions in Mediation – Yours and Theirs: The Good News is, They Matter, St. Louis Lawyer 14A (February 4, 2003), reprinted at http://mediate.com/articles/young12.cfm.

17 HAL ABRAMSON, MEDIATION REPRESENTATION: ADVOCATING IN A PROBLEM-SOLVING PROCESS 117-18 (2004).

18 CHRISTOPHER MOORE, THE MEDIATION PROCESS: PRACTICAL STRATEGIES FOR RESOLVING CONFLICT 13-14 (2d ed. 1996).

19 My language, not Abramson’s.

20 Abramson, supra note 17, at 118-19.

21 The Md. Inst. for Continuing Prof’l Ed. of Lawyers, Inc., Ch. IV: Deciding When to Use Mediation, MEDIATION: A HANDBOOK FOR LAWYERS (1999), available on Westlaw at MEDI MD-CLE 27.

22 E.g., compare Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L. J. 1545 (1991) with Dennis Marthaler, Successful Mediation with Abusive Couples, 23 MEDIATION Q. 53 (Spring 1989). 23 Angela Lambert, Preventing Judicial Re-victimization: Introducing “Domestic Violence Dispute Resolution Specialists” into the Present ADR Systems, State Legislatures, and Family Courts . . . from a Domestic Violence Crusader’s Point of View (Fall 2006) (unpublished manuscript, on file with author).

24 See, e.g., Kenneth O. Simon, Jr., Keys to Successful Mediation, http://library.findlaw.com/ 1999/Jun/1/128176.html.

                       

Paula Young

Paula M. Young is an associate professor at the Appalachian School of Law located in Virginia teaching negotiation, certified civil mediation, arbitration, and dispute resolution system design.  She received in 2003 a LL.M. in Dispute Resolution from the top ranked program in the U.S.   She has over 1400 hours of… MORE >