Six Illusions that Restrict Mediation

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Illusions

By: Donald L. Swanson

We all make assumptions — every day — about many things.  Our false assumptions are our illusions.

There are many illusions about mediation, most of which place restrictions on the role and effectiveness of the mediation process.  We all have them.  Fortunately, we now have solid evidence to dispel some of them — courtesy of the U.S. Circuit Courts of Appeals.

The U.S. Circuit Courts of Appeals have been conducting formal mediation programs for decades.  The earliest began in the mid-1970s.  And the Circuit Courts have been studying the impact and effectiveness of those programs for years.

Based on such studies, we now know that some of our mediation assumptions are mere illusions.

Here are six of such illusions that limit the role and effectiveness of mediation.

   1.  Mediation is a voluntary process that cannot be mandated.

Mediation programs in nearly-all of the U.S. Circuit Courts of Appeals feature mandated mediation.  Parties can request mediation in such Courts.  But mediation is going to happen in many, many cases whether the parties request it or not.  The Courts simply assign cases to mediation.

This mandatory feature has been around for a very-long time: i.e., it hails back to the earliest experimental program of the 1970s in the Second Circuit.

Studies of mediation programs in the Circuit Courts conclude, uniformly, that these programs are achieving great success.  And much of the success is attributed to the mandatory-assignment feature.

  2.  Mediation by telephone is inadequate – the mediation must occur in-person.

Conventional wisdom says that mediating parties must all be in the same room – or in the same suite of conference rooms – or at least in the same building.  Such wisdom seems to hold sway, even when the mediation consists exclusively of a mediator shuttling between conferences rooms in a caucus format, with the parties never laying eyes on each other.

A report from the Sixth Circuit Court of Appeals lays this conventional wisdom to rest:

“The Sixth Circuit’s mediation program . . . settles about 40% of appeals that participate in mediation.  . . . most of those resolutions were agreed to over the telephone.  Unlike most circuits, over 90% of the Sixth Circuit’s mediations are held by telephone – which is certainly appreciated by attorneys and parties.  Most other circuits use telephone mediations just 20-50% of the time.”

  3.  Every Federal judge and every Federal court is free to decide whether to approve of or utilize mediation.

Congress and the Courts have established mediation and other ADR processes as official policy of the U.S. Government.

In the Alternative Dispute Resolution Act of 1998, Congress directed each U.S. District Court “to encourage and promote” ADR use “in its district.”  Each Bankruptcy Court and Judge is, by statute, a “unit” and a “judicial officer” of the U.S. District Court.

By 1996, nearly all U.S. Circuit Court of Appeals had their own mediation programs—today, all of them do.  Such programs preceded Congressional action on the subject – and perhaps prompted such action by Congress.

Additionally, all Federal agencies have adopted ADR rules and procedures as a result of the Administrative Dispute Resolution Act of 1996.

Some bankruptcy courts and judges, apparently, believe they’ve fallen through the Federal-policy-cracks on mediation and are exempt from the broad-based Federal policy favoring mediation.

But they haven’t: they are subject to this Federal policy.

  4.  Cases with high-levels of complexity are ill-suited to resolution though mediation.

The last hold-out, among the U.S. Circuit Courts of Appeals, to establish a mediation program is the Federal Circuit: it finally got around to adopting a mediation program in 2005.

The Federal Circuit’s caseload includes patent cases, which tend to have high levels of complexity.  This complexity became a primary rationale for the Federal Circuit’s holdout against mediation: because of complexity (the rationale says), patent cases are “ill-suited” to mediation.

The error of such rationale is demonstrated by this finding:

“More and more IP cases are being successfully mediated at the district court level.  One federal magistrate judge . . . had mediated over 200 patent cases . . . The settlement rate approached 90% for mediations during the last 12 months of the reporting period . . . The message: IP cases are more amenable to successful mediation than previously thought.”

  5.  Settlements will occur at the same rate, whether mediation happens or not.

Here is a finding from a 1983 study by the Federal Judicial Center of the Second Circuit’s mediation program:

“The [mediation] program does result in the settlement or withdrawal of appeals that would otherwise have to be considered by three-judge panels . . . The program almost certainly results in faster disposition, not only of appeals that are settled or withdrawn . . . but also of appeals that would have been settled in any event; it probably results in faster disposition of appeals that are argued.”

   6.  Mediation in an appellate court will impair the law-making function of that court.

This assumption is, actually, a primary argument used back in the 1970s, 1980s and 1990s in opposition to the development of mediation programs in the Circuit Courts.

According to a 2002 Report:

The concern is that mediated settlements of Circuit Court cases “would deprive the courts of their ability to expand the corpus of the law.”  The concern is about their role of clarifying the law and enhancing its predictability by issuing precedential opinions: this role would be impaired by mediated settlements, the argument goes.

Actual results, however, are to the contrary.  In the Third Circuit, for example:

“It is clear in retrospect that the mediation program has had no adverse effect on the development of Circuit law. The Court writes precedential opinions in only 15% of its cases. That number has remained consistent since the inception of the Appellate Mediation Program.

Conclusion

The foregoing identifies six assumptions about mediation that restrict its use and scope and effectiveness.  Each of these six assumptions is demonstrably false . . . wrong . . . illusory.

There are many, many other limiting assumptions about mediation that are, similarly, false . . . wrong . . . illusory.  Unfortunately, the restrictive hold of such illusions is difficult to overcome.

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