“Studies show that parties who have entered mediation reluctantly still benefited from the process even though their participation was not voluntary.”
D. Quek, Mandatory Mediation: An Oxymoron? Examining the Feasibility of Implementing a Court-Mandated Mediation Program, Cardozo Journal of Conflict Resolution, Vol 11:479, at 483 (Spring 2010).
Dorcas Quek is arguing in the above-linked paper that mandatory mediation can be an effective resource to implement a mediation culture where one does not currently exist. In doing so, she makes a couple distinctions.
First Distinction: “Categorical” and “Discretionary” Referrals
The first distinction Ms. Quek makes is between a “categorical” referral to mediation and a “discretionary” referral to mediation.
–A “categorical referral” exists when a statute or court rule automatically refers certain types of disputes to mediation. Although “simple to administer,” Ms. Quek describes categorical referrals disparagingly as “synonymous with arbitrariness.” She submits that categorical referrals “very readily” lead to coercion, unless they are accompanied by “opt-out” provisions.
–A “discretionary referral” exists when a judge, by direct order in a specific case, mandates that the parties mediate their disputes. Discretionary referrals are meant to be a “customized and fairer” form than categorical referrals: but this depends upon the skill and good judgment of the referring judge. Abuses of discretion might take the form of referring all cases (or referring none) to mediation.
Ms. Quek’s paper focuses a great deal upon addressing this first distinction: i.e., upon whether (and to what extent) the parties feel coerced.
Second Distinction: Coercion “into” Mediation and Coercion “Within” Mediation
A second distinction Ms. Quek makes is between coercion “into” mediation and coercion “within” mediation. There are, she says, “diverse opinions on whether coercion into mediation may realistically be distinguished from coercion within mediation.” She explains:
“Critics of mandatory mediation are of the opinion that there cannot possibly be a neat demarcation or even a semantic difference between coercion into and within mediation.”
Others disagree because a party may be required “to attempt the process of mediation,” but that is different from, and “not tantamount” to, “forcing him to settle in the mediation”: mandatory mediation requires only that parties “try” to reach an agreement.
To evaluate coercive effects, Ms. Quek looks at empirical studies on differences in settlement rates between mandatory and voluntary mediation efforts. She finds studies on this issue to be “equivocal” and “less than conclusive”: (i) some studies show “no major difference between the rates of settlement in mandatory mediation and voluntary mediations,” but (ii) other studies find “lower rates of settlements” in mandatory mediations.
Ms. Quek’s paper reaches a number of conclusions. Here are three of them:
–“The available research indubitably establishes the utility and benefits of mediation,” and “the general benefits of mediation are not in doubt.”
–“In many jurisdictions, the rates of voluntary usage of mediation have been low,” and “the full benefits of mediation are not reaped when parties are left to participate in it voluntarily.”
–The “most compelling reason for introducing mandatory mediation” is to “increase awareness and the usage of mediation services.”
A “Compelling Reason” for Mandating Mediation
A large majority of U.S. bankruptcy districts now have local rules on mediation: more than 70%. But mediation is used infrequently, if at all, in many of them.
Here’s why: a non-mediation culture exists in those courts. Attorneys have been settling cases in those courts for decades without using mediation, so they don’t know how to use mediation or the benefits of mediation.
Two Contrasting Examples
Bankruptcy Court in Chicago – Revoked Local Rules.
A glaring example of non-use is the Northern District of Illinois Bankruptcy Court (in Chicago). For years, this Court had local mediation rules. But in recent years this District “revoked” those mediation rules and now encourages strictly-voluntary use of mediation: but practitioners who use mediation in that Court must now do so without any local rules to follow.
One reason provided by the Court for its revocation is this:
“These Local Rules should be deleted as unnecessary. The rules established a mediation program that, in actual practice, parties have not employed.”
According to Ms. Quek, the judges in bankruptcy courts like this should be mandating mediation to promote and ensure its utilization, not revoking local mediation rules.
Bankruptcy Court in Nebraska – Discretionary Referrals
A contrasting example is in the Bankruptcy Court for the District of Nebraska. Back in 2011, this Court adopted local mediation rules. And then the Chief Judge began, on occasion and in the exercise of discretion, requiring parties to mediate. This resulted, over time, in a recognition and acceptance of mediation by practitioners as a useful resource. In reality, this Judge became a primary advocate for mediation by occasionally mandating its use.
Experience shows that Ms. Quek is correct: a goal of increasing the use of mediation is a “compelling reason” for mandating the use of mediation, either categorically or by exercise of judicial discretion – or by both.
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