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Using Dispute System Design Methods to Promote Good-Faith Participation in Court-Connected Mediation Programs John M University of Missouri School of Law Scholarship Repository Faculty Publications 2002 Using Dispute System Design Methods to Promote Good-Faith Participation in Court-Connected Mediation Programs John M. Lande University of Missouri School of Law, [email protected] Follow this and additional works at: http://scholarship.law.missouri.edu/facpubs Part of the Dispute Resolution and Arbitration Commons, Ethics and Professional Responsibility Commons, and the Litigation Commons Recommended Citation John Lande, Using Dispute System Design Methods to Promote Good-Faith Participation in Court-Connected Mediation Programs, 50 UCLA L. Rev. 69 (2002) This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. USING DISPUTE SYSTEM DESIGN METHODS TO PROMOTE GOOD-FAITH PARTICIPATION IN COURT-CONNECTED MEDIATION PROGRAMS John Lande* This Article discusses what can be done to promote productive behavior in mediation and reduce bad conduct. Although most participantsdo not abuse the mediation process, some people use mediation to drag out litigation, gain lever- age for later negotiations, and generally wear down the opposition. Rules re- quiring good-faith participation are likely to be ineffective and possibly counterproductive. This Article proposes using dispute system design principles to develop policies satisfying the interests of stakeholders in court-connected me- diation programs. After outlining important interests of key stakeholder groups, including litigants, attorneys, courts, and mediators, the Article describes spe- cific policies that could satisfy their interests. These policies include collabora- tive education about good mediation practice, pre-mediation consultations and submission of documents, a limited and specific attendance requirement, and protections against misrepresentation. If faithfully implemented, these policies will enhance the integrity of mediation programs and satisfy the interests of the stakeholder groups without the problems caused by good-faith requirements. INTRO DUCTION .............................................................. 70 I. GOOD FAITH IN MEDIATION ............................................... 77 A. The Definition of Good Faith and the Rationale for a Good-Faith Requirement ....................................... 77 B. Current Status of Good-Faith Requirements ........................... 78 C. Problems with Good-Faith Requirements .............................. 86 1. Problems Defining and Proving Good Faith ........................ 86 2. Overbreadth of Bad-Faith Concept ................................ 93 3. Inclusion of Settlement-Authority Requirement .................... 94 4. Questionable Deterrent Effect and Potential Abuse of Bad-Faith Sanctions .......................................... 98 * Associate Professor and Director, LL.M. Program in Dispute Resolution, University of Missouri-Columbia School of Law. J.D., Hastings College of Law; Ph.D., University of Wisconsin- Madison. Sincere thanks to Bob Ackerman, Mary Carnahan, Roger Carter, Michelle Cecil, Jim Coben, Jonathan Cohen, Sarah Cole, Cathy Costantino, Martha Dragich, Chris Guthrie, Bill Henning, Chris Honeyman, Ron Kelly, Kim Kovach, Lela Love, Bobbi McAdoo, Julie Macfarlane, Ellen Miller, Jackie Nolan-Haley, Kelly Olson, Sharon Press, Len Riskin, Jeff Stempel, Jean Ster- nlight, Nancy Welsh, Maureen Weston, Roselle Wissler, and Andria Zylstra for their helpful com- ments on earlier drafts. I appreciate all the suggestions even though I could not use them all. Thanks to Hong Hu, Clivia Pierre, and Pingping Zhang, Missouri LL.M. students, for research assistance. HeinOnline -- 50 UCLA L. Rev. 69 2002-2003 70 50 UCLA LAw REVIEW 69 (2002) 5. Weakened Confidentiality of Mediation Communications .......... 102 6. Encouragement of Inappropriate Mediator Conduct ................ 106 II. RECOMMENDATIONS TO ENHANCE QUALITY OF PARTICIPATION IN LOCAL MEDIATION PROGRAMS ....................................... 108 A. Use of Dispute Systems Design Principles in Developing Local M ediation Program Policies ......................................... 109 1. Appropriateness of Local Decisionmaking About Court- Connected Mediation Programs ................................. 109 2. Applying Dispute Systems Design Techniques in C ourt Settings .............................................. 112 B. Addressing Interests of Mediation Programs' Stakeholders .............. 118 1. Parties' Interests ............................................... 118 2. A ttorneys' Interests ............................................ 120 3. C ourts' Interests ............................................... 123 4. M ediators' Interests ............................................ 125 C. Policy Options to Address Stakeholders' Interests and Promote Good Faith in Mediation ............................... 126 1. Collaborative Education About Good Practice in M ediation .................................................. 127 2. Pre-Mediation Submission of Documents and C onsultations .............................................. 129 3. Requirement of Mere Attendance for a Limited and Specified Tim e ............................................ 132 4. Policy Governing Cancellation of Mediation ...................... 135 5. Protections Against M isrepresentation ............................ 137 CONCLUSION ............................................................... 139 INTRODUCTION What can be done to prevent people from behaving badly in media- 1 tion? One litigator described his approach to mediation this way: "[If. ..I act for the Big Bad Wolf against Little Red Riding Hood and I don't want this dispute resolved, I want to tie it up as long as I possibly can, and mandatory mediation is custom made. I can waste more time, I can string it along, I can make sure this thing never gets resolved because ...I know the language. I know how to make it 1. In general, mediation is a procedure in which the mediator helps disputing parties nego- tiatean agreement and in which the mediator has little or no authority to impose a decision if the parties do not reach agreement. See CHRISTOPHER W. MOORE, THE MEDIATION PROCESS: PRACTI- CAL STRATEGIES FOR RESOLVING CONFLICT 8, 41-53 (2d ed. 1996). But see generally ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994) (arguing that, rather than settlement of dis- putes, primary goals of mediation should be empowerment of individuals to manage conflict and recognition of the concerns of others involved in conflict). Mediation is based on values that parties should voluntarily make decisions in mediation ("self-determination"), mediators should impartially help all parties in a dispute, and mediators should maintain the confidentiality of com- munications in mediation. See AMERICAN ARBITRATION ASSOCIATION ET AL., MODEL STAN. DARDS OF CONDUCT FOR MEDIATORS §§l-II, V (1994), available at http://ilr.cornell.edu/alliance/ model standards of conduct for m.htm. HeinOnline -- 50 UCLA L. Rev. 70 2002-2003 Designing Court-Connected Mediation Programs 71 look like I'm heading in that direction. I make it look like I can make all the right noises in the world, like this is the most wonderful thing to be involved in when I have no intention of ever resolving this. I have the intention of making this the most expensive, longest process but is it going to feel good. It's going to feel so nice, we're going to be here and we're going to talk the talk but we're not going 2 to walk the walk." In her study of Ontario litigators, Professor Julie Macfarlane found that rather than using mediation to try to reach a settlement in good faith, some lawyers use mediation to make misleading statements, "'smoke the other side out,' gain leverage for later negotiations, drag out litigation, increase oppo- nents' costs, and generally wear down the opposition.3 Bad-faith tactics in- clude purposely wasting time and money to demoralize parties less able to afford litigation.4 Attorneys can do this while using mediation jargon and creating phony issues to appear sincerely interested in settling the case.5 These tactics certainly do not represent the approach of all or even most of 2. Julie Macfarlane, Culture Change? Commercial Litigators and the Ontario Mandatory Medi- ation Program, 2002 J. Disi. RESOL. (forthcoming 2002) (manuscript at 32) (quoting a Toronto litigator) (first alteration in original). Macfarlane interviewed the attorney in a study based on interviews of forty litigators who had participated in at least ten mediations. Some lawyers and litigants in the United States also take an adversarial approach to alternative dispute resolution (ADR). See Carrie Menkel-Meadow, PursuingSettlement in an Adversary Culture: A Tale of Innova- tion Co-opted or "The Law of ADR," 19 FLA. ST. U. L. REV. 1, 17 (1991) (expressing concern that ADR has become "just another stop in the 'litigation' game which provides an opportunity for the manipulation of rules, time, information, and ultimately, money"). 3. Macfarlane, supra note 2 (manuscript at 31-32) (quoting an Ontario litigator). The Ethical Guidelines for Settlement Negotiations of the ABA Section of Litigation would prohibit attorneys from using the settlement process in bad faith. Ethical Guidelines for Settlement Negotia-
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