Mandatory Mediation & Good Faith: “You can lead a horse to water, but . . . “

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By: Donald L. Swanson

Mandatory mediation is a good thing [see, e.g., my blog post titled, “Local Bankruptcy Rules Without Mandatory Mediation are Like a Toolbox Without a Vise-Grip“].

But the words “mandatory mediation” refer only to a required process.  They do not suggest any such thing as compelled settlement or compelled concession or even compelled listening.

The operative adage for mandatory mediation is this:

“You can lead a horse to water but you can’t make it drink.”

Online sources say this is the oldest-known adage in the English language.  It dates back to at least the year 1175. The phrase appears thereafter, for example, in a play published in 1602 called “Narcissus“:

“Your parents have done what they coode,
They can but bringe horse to the water brinke,
But horse may choose whether that horse will drinke.”

I say this time-honored adage is sufficient authority for what should happen in a mandatory mediation in today’s bankruptcy courts. After all, our bankruptcy jurisprudence and jurisdiction hearken back to “the stuff of the traditional actions at common law tried by the courts at Westminster in 1789” (see, e.g., Stern v. Marshall, 564 U.S. 2 (2011 )).

“Good faith” in mandatory mediation means showing up for participation in the mediation as ordered.

So, what’s the point of mandatory mediation, if it isn’t to compel parties to do something beyond merely showing up?

Here are but-a-few of such points:

1. You never know. Many-a-disputing-party has shown up at a mediation session with no expectation or hope of settling. But lo-and-behold a settlement happens anyway.

2. Bluffing happens. Some people project a belligerent front in negotiations with the hope/expectation that such a front will scare/move the other side into a favorable settlement. After all, displays of bravado-without-substance are common in the non-human animal world. So . . . such actions probably happen in human negotiations too [not that I have ever done — or even thought about doing — any such thing!]. A mandatory mediation provides opportunity for bluffing parties to move away from belligerence toward resolution.

3. Failure/success is a false mediation dichotomy. Whoever started the idea that mediation failure/success is defined by the conclusion of a mediation session should be castigated! Such a dichotomy is false. It’s wrong. It’s harmful. It’s . . . etc.

–Success/failure of a mediation session (particularly a mandated one) should be measured, instead, by the existence of progress toward a voluntary resolution.

–“The whole idea [of mediation] is to get the parties talking.” So says a speaker at a recent CLE event. The goal of a mandatory mediation should be to make progress on furthering communications between the parties: not to produce, as if by magic, an immediate settlement between parties-at-war.

Shouldn’t we treat people (in mandatory mediation contexts) with at least the same deference we afford to thirsty horses?

7 thoughts on “Mandatory Mediation & Good Faith: “You can lead a horse to water, but . . . “

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  1. My view is that mandatory mediation means that attendance is mandatory. Settlement is purely a voluntary act, so coerced participation doesn’t cause bad outcomes. I suppose a less sophisticated party, compelled to attend mediation, might get the wrong idea. But well-informed counsel should be able to solve that problem.

    A benefit of mandatory mediation is that sometimes, when you lead a horse to water, it does drink.

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    1. Thanks, Robert, for the horse-to-water reminder for mandatory mediation!

      On the same subject, and using the same horse-to-water metaphor, is this article:

      Mandatory Mediation & Good Faith: “You can lead a horse to water, but . . . “

      Any agreements or disagreements on this?

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  2. As a judge, I did not order mandatory mediation. My colleague and I were opposed to the idea and did not accept the rule proposed by our local rules committee that would have permitted mandatory mediation. Our view at the time was that mediation must be voluntary from start to finish. However, we did tell the parties when we thought mediation was appropriate and offered the free services of judicial our colleagues. On reflection, a strong recommendation and the offer of free service may have carried the weight of the court like a brick through a window. My position now, which to be fair may be motivated in part by how I now earn my leaving as a fee-for-service mediator, is that mandatory mediation has its place. Getting people to show up is more than half the battle; and, as we all know, lawyers sometimes like the idea because it gets them off the hook. They recognize that blaming mediation on the judge is a helpful way of getting their clients to the table. What happens next is up to the parties and counsel and the skill set of the mediator. Horses wearing blinders may not see the water.

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