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Winter 2007 Reform Renews Debate over Mandatory Mediation Richard C. Reuben

Follow this and additional works at: https://scholarship.law.missouri.edu/facpubs Part of the and Commons TORT REFORM RENEWS DEBATE OVER MANDATORY MEDIATION BY RICHARD C. REUBEN

required (either by legislative com- particularly challenging when dealing Democrats during the mid- mand or rule) to use mediation with clients, who rightly expect their termESPITE elections,THE RISE tort OFreform THE to attempt to resolve the dispute be- attorneys to represent them zealously. can be expected to continue to be an fore they will be permitted to proceed Many clients confuse zealousness with important topic at both the state and to . Without question, mandatory contentiousness, however, and a man- federal levels. This is significant for mediation has contributed mightily to datory mediation program gives their dispute resolution, because a number the institutionalization of ADR in the a reason to get their clients of the reform measures being dis- today, and a number into the room without giving the ap- cussed include mandatory mediation of arguments have been advanced to pearance of weakness and undermin- requirements for many, if not most, justify it. ing their clients' confidence in them. civil cases. i. Mandatory mediation is efficient be- 4. Mandatory mediation brings I see this possibility as both salu- cause it reduces judicial caseloads. It has the parties into the legal tary and troubling. It is salutary in that long been argued that the civil process. Negotiation has long been it acknowledges the important place are overburdened, and that many of the backbone of legal dispute resolu- ADR has come to have in our system the cases that are filed in courts are tion, but this is negotiation that often of . Just think about it: 25 years not worth judicial resolution either has been between the attorneys, with ago, few legislators had even heard of because they are essentially private clients ultimately approving or disap- mediation, or if they had, they might matters that provide little guidance to proving the results of the negotiation. have thought it was some kind of others, or because these disputes are Mandatory mediation furthers proce- California fad, nothing to be taken better addressed in other processes dural justice values by bringing parties seriously. Now often conservative that can bring more flexibility in deci- into the actual negotiation of legal dis- legislators are including mediation in sion-making than rule-bound courts. putes by permitting the clients to tell measures intended to fix what they Mandatory mediation helps courts by their stories (or hear their attorneys perceive to be wrong with the civil diverting these cases to alternative tell them), and by providing an envi- justice system. This is good. More im- forums while still preserving the right ronment for the consideration of the portantly, mediation is bringing to dis- of the parties to return to the judicial parties' interests that is at least theo- putants the capacity to have their legal forum if they are dissatisfied with the retically even-handed and dignified. problems solved in ways that produce results of mediation. All of these are significant rea- potentially better outcomes and are 2. Mandatory mediation encour- sons to support mandatory mediation. more satisfying for participants. ages lawyers to use mediation. The There are, however, a number of argu- These legislative measures are central idea of this argument can be ments against mandatory mediation, troubling, however, because they summed up by the punch line of a which I divide into two categories: often include mediation not as an op- fast-food commercial of the 1970s: the standard arguments, and my ad- tion for disputants to consider, but as "Try it, you'll like it." Indeed, there ditional concerns. a mandatory requirement or condition is some empirical research to suggest for proceeding to trial. To me this that experience with mediation is the Standard arguments approach is less desirable and has the best predictor of the willingness of i. Mandatory mediation interferes capacity to threaten the integrity and lawyers to recommend mediation to with trialaccess rights and denies due pro- utility of mediation as a truly alterna- their clients.1 In this sense, manda- cess. Courts have generally not been tive dispute resolution process. tory mediation serves an educational, receptive to these arguments, on the even remedial, purpose, and has been theory that these important rights are Arguments for mandatory mediation particularly important in the insti- only delayed, not denied.' Mandatory mediation has been tutionalization of ADR because the 2. Mandatory mediation contradicts a part of the dispute resolution land- private has historically been much the consensual nature of the process. For scape for many years. Under it, parties more reluctant than the to use many, part of the strength of the medi- who file claims with the courts are alternative, nonjudicial processes to ation process, and a crucial element of resolve legal disputes. its enforcement power, is the desire of mediation provides people to be there to begin with, to re- SRichard C. Reuben is 3. Mandatory an associate professor at shelter for lawyers with unreasonable solve their problems according to what tP the University of Missouri- clients. One of the biggest contribu- best suits their interests, needs and SColumbia School of Law, tions of the ADR movement during concerns rather than according to the and the Editor of Dispute been to help dis- dictates of law or the likelihood that a ,,Resolution Magazine. the last 30 years has He can be reached at putants get over the idea that to settle given position will prevail. Party self- [email protected]. is a sign of weakness. This notion is determination is the prime directive

DISPUTE RESOLUTION MAGAZINE WINTER 2007 13 in mediation, and in this view, forcing Here are some additional concerns. they also raise problems of their own, people to be in a dispute resolution i. Mandatory mediation undermines not the least of which is how to define process that they don't want to be in direct negotiation between the parties and good faith. It is said that in Florida, the is simply antithetical to the concept of their representatives. With mandatory informal rule is that you have to be in self-determination. mediation, parties have little incen- the room for 15 minutes to satisfy the 3. Mandatorymediation allowsforthe tive to engage in serious negotiation obligation. Is this really good faith? As exploitation of power imbalances. While prior to the mediation. This situation a result, we see things like the one- trainings routinely include instruction is unfortunate because as salutary as hour mediation. We have to on techniques to promote participa- the mediation process is as a vehicle ask ourselves, is this really mediation? tion and self-determination by low- for settling disputes, it still has to be 3. Mandatory mediation can shift power parties, critics may reasonably viewed as a second-best alternative to practice away from being a broader,inter- raise questions about their effective- the parties working things out them- est-based alternative, and toward a nar- ness.' We can say more confidently selves. That is real self-determination. rower, more evaluative and more directive that unless power imbalances are skill- Mandatory mediation undermines style of mediation. fully handled, mediation can make this kind of self-determination at two Narrower, more evaluative me- them worse, with mediators actually, levels. First, it preempts systemic diation may be what some parties in and perhaps unwittingly, reinforcing efforts to teach people the skills they fact want, and certainly has its place power imbalances. The classic exam- need to resolve disputes themselves. in the field. But it is a far cry from the ple is the mediation of divorce cases For example, many schools have effort by the movement's pioneers to involving domestic abuse or violence, enacted peer mediation programs to establish a truly alternative process- in which the higher-power spouse teach students how to serve as me- one that allows parties to use disputes sometimes can dictate the terms of the diators in disputes among their peers. to satisfy deeper interests, needs and divorce in an environment that can be These programs are all to the good, concerns. It was this goal that gave not only intimidating, but dangerous but where are the programs that will the mediation movement its force and or even life-threatening. Under this provide training in the fundamentals moral authority. It would be a shame argument, public courts should not be of and the basics of nego- to see mediation co-opted in this way. putting people in this position. tiation, training that would enable 4. Finally, mandatory mediation un- 4. Mandatory mediation improp- students to address disputes construe- dermines the democratic character of gov- erly pushes cases outside the public realm. tively themselves? ernmentaldisputeresolution. In my view, There has been much discussion Similarly, mandatory mediation when the government is involved in a about the "vanishing trial" in re- can also encourage weak lawyering dispute resolution process, that pro- cent years, a notion based on Marc because lawyers know that mediators cess ought to reaffirm and foster dem- Galanter's highly publicized recent can save them from having to press ocratic values rather than undermine research indicating that trial rates the more difficult issues themselves, them. Mandatory mediation may be are only about 1.6 percent of all filed either with opposing or, worse efficient, but especially when it oper- claims. 4 While this finding is probably yet, with their own clients (potentially ates without effective quality control, good news for those of us in dispute raising questions about the 's it can undermine the fundamental, resolution, we need to remember that commitment to the client's cause). transcendent democratic value of per- this decrease in comes at a price. 2. Mandatory mediation creates sonal autonomy and potentially other That price includes the diminished collateralproblems, such as the need for democratic values. application of norms to past good-faith participation requirements Professor Frank Sander offers conduct and the loss of to and all the problems they create. When one response to these concerns about guide future behavior, as well as the mediation is mandatory, attorneys who mandatory mediation, saying that one limitation of opportunities for citizens don't want to be there have an incen- can be compelled into mediation but to participate in the administration of tive to use the process for strategic cannot be compelled to settle in me- justice. In my view, it's important that advantage in litigation rather than for diation.' This may be true, but a failed we route away from trial only the cases true settlement. This opportunity can mediation can leave a lot of sensitive that are more appropriately resolved lead to the cynical use of mediation as information on the table that can be by other methods of dispute resolu- a fishing expedition for . It harmful to the parties in subsequent tion, not just "cases." can also lead attorneys to see media- litigation. Let us remember that part tion as a procedural formality, which, of the mediator's job is to encourage Additional concerns like fishing expeditions, inspire both hesitant parties to reveal this type of Several states have already taken cynicism and resentment toward the information. Moreover, some jurisdic- significant steps in requiring the medi- mediation process and undermine its tions have at least informal reporting ation of certain cases as a condition for legitimacy. requirements that compel the media- proceeding to trial. In my view, that Good-faith requirements are tor to tell the when parties are experience has not always been good. intended to reach this problem, but dragging their heels.

14 WINTER 2007 DISPUTE RESOLUTION MAGAZINE Such consequences do not inspire should not be just another justification meeting their objectives, and are not creat- public confidence and trust in the me- for cutting judicial budgets. Program ing incidentalproblems? Even the best diation process, or in the courts and design, implementation and evalua- of programs can fail to meet critical ob- the more generally. tion all have to be paid for, and the jectives and may produce unintended In my view, the benefits of should be prepared to do consequences. Regular and public mandatory mediation are not worth so if it going to compel people into program monitoring and evaluation these costs, especially since voluntary mediation. are essential to assure the effective- programs can be constructed with 3. Should there be categorical excep- ness and legitimacy of mandatory sufficient incentives to ensure their tions for some cases, and if so, which mediation programs. use and to achieve the efficiency, cases? The forthcoming legislative con- educational and other benefits I have 4. Shouldparties be able to opt out? sideration of mandatory mediation (as discussed. Mandatory mediation may Most mandatory mediation programs a part of the larger issue of tort reform) have been appropriate, even neces- have at least some basis under which is important, and presents an opportu- sary, as a remedial measure to get the parties may be relieved of the obliga- nity for those who care about dispute ADR ball rolling when ADR was first tion to mediate, although standards resolution to educate legislators about introduced in the 1970s and 1980s. vary widely. The concerns I have it. We should take advantage of that But the process is more mature now raised should counsel in favor of a opportunity, lest the opportunity take and capable of standing on its own more permissive standard. advantage of us. two feet, without the crutch of court 5. What standards, ifany, should compulsion. In my view, the me- there be for such participation? Nearly ENDNOTES diation community should resist the half of the states now have good faith See Nancy H. Rogers & Craig A. McEwen, mandatory mediation tide and push requirements, although there is con- 6 Employing the Law to Increase the Use of the legislative embrace of mediation siderable variety in their structure. Mediation and to Encourage Direct and Early toward an incentive-based voluntary 6. What minimum qualifications , 13 OHIo ST. J.ON Disp. RESOL. model rather than continuing with an should there be for court-sponsoredmedia- 831, 845 (1998). involuntary model. tors, and what kind of trainingshould they 2 See Richard C. Reuben, Public Justice: This of course raises the question receive? Toward a State Action Theory of Alternative of what to do if the mandatory tide 7. Should parties be given some au- Dispute Resolution, 85 CAL. L. REV. 577, 641 can't be turned. Being pragmatic, I tonomy over critical issues, such as who n.42 (1997). media- think we should continue to take ad- the mediator will be, the style the 1 The complicated, contentious and long-unre- vantage of the momentum by being tor will use, and whether will be solved debate over whether mediators should more purposive about it and thinking permitted? strive to ensure "fair" results in mediation through the design questions sooner 8. At what level should mediators is but one example of the field's inchoate response to this issue. rather than later. During the drafting and programs be accountable? For me- process we should let legislators know diators, one possibility is to establish I See Marc Galanter, The Vanishing Trial: An the cons as well as the pros of manda- a government structure, like Florida's, Examination of Trial and Related Matters in tory mediation, and encourage them to to consider ethical complaints against State and Federal Courts, 1 J.EMPIRICAL LEG. STUD. 459 (2004); Symposium, ADR and the mediators. But Florida's system is consider the following questions: Vanishing Trial, Dise. RESOL.MAG., Summer i. What is the real goal of manda- costly and is viewed by some as ulti- 2004. tory mediation? If it's merely efficiency, mately toothless.7 Is licensing more then a one-hour divorce mediation appropriate? For programs, given the 1 See Frank E.A. Sander, The Future of ADR, 2000 J. DiSP. RESOL.3, 7-8. makes sense. But is that what the important rights at stake in mediation dispute resolution community would and the dynamics of judicial self-inter- 6 For a discussion, see John Lande, Using want? Clarification of this question est in the efficiency of such programs, Methods to Promote would provide crucial guidance for traditional principles of checks and Good Faith Participation in Court-Connected Mediation Programs, 50 UCLA L. REV.69 program designers charged with im- balances counsel in favor of legislative (2002). In 2004, the ABA Section of Dispute plementing the programs enacted by or oversight of court-or- Resolution adopted a policy on good-faith the . dered mediation programs, in addition requirements that can be found on the sec- tions web site at www.abanet.org/dispute/ 2. How will mandatory mediation to internal oversight by the court. webpolicy.html#9. programsbefunded, and will the mediators 9. What remedies should be available be paid? All too often these programs for misrepresentation, coercion and other 7 See Bruce A. Blitman, Florida's Advi- rely on volunteer mediators, who work defects in the mediationprocess? Professor sory Committee Breaks New Ground, DisP. for free for the experience, prestige or Nancy Welsh has suggested a "cooling RESOL. MAG., Spring 2001, at 10. proximity to the court. This staffing off"' period.' Are there other possibili- I See Nancy A. Welsh, The Thinning Vision of model hardly inspires confidence in ties? Self-Determination in Court-Connected Media- the system, and can distort the pro- Io.How will mandatory mediation tion: The Inevitable Price of Institutionaliza- cess. The use of mandatory mediation programs be evaluated to assure they are tion?, 6 HARV. NEG. L. REV. 1 (2001).

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