Evolutionary Progress of Mediation is Upward: Toward Greater, Earlier and Mandatory Use

Fish on a Bicycle — Evolutionary Progress?

By: Donald L. Swanson

Perhaps no idea has proven more controversial within evolutionary biology than the idea that evolution manifests progress.”

–T. Shanahan (7/16/2012)

The track-on-a-graph for mediation progress is, without question or controversy, upward!

The formal and frequent use of mediation to resolve lawsuits in the U.S. dates back to experimental programs of the 1970s.

Progress of mediation, since the 1970s, has almost always been upward. Mediation is now a primary dispute resolution tool in the vast majority of all U.S. courts at all levels: local, state and Federal. And mediation has developed, in many contexts, to include (i) a mandatory function, and (ii) an early-in-the-process event.

U.S. Circuit Courts of Appeals

Back in the 1970s the U.S. Circuit Court of Appeals for the Second Circuit began experimenting with mediation as way to deal with burgeoning caseloads. Those experimental mediations occurred at the outset of an appeal and included a mandatory element, all of which proved to be effective and successful.

Other U.S. Circuit Courts began to observe the success of Second Circuit’s mediation experiments and then began adopting their own programs that required mediation at the earliest stages of an appeal process.

The result, today, is a culmination of upward evolution in the U.S. Circuit Courts of Appeals: nearly all of such courts require mediation at the earliest stages of an appeal process.

U.S. District Courts

The Alternative Dispute Resolution Act of 1998 (28 U.S.C. §§ 651-658) requires each U.S. District Court to:

–“authorize . . . the use of alternative dispute resolution processes in all civil actions”;
–“encourage and promote the use of alternative dispute resolution in its district”;
–“require that litigants in all civil cases consider the use of an alternative dispute resolution process”; and
–“provide for the confidentiality of the alternative dispute resolution processes and to prohibit disclosure of confidential dispute resolution communications”;

The vast majority of all U.S. district courts are in compliance with these requirements. And mediation has come to play an essential role in resolving many, many civil lawsuits in the U.S. district courts. This is upward evolution, indeed.

Bankruptcy Courts

Bankruptcy courts in the U.S. have been, generally, slow to catch on to mediation.
By now, however, at least 80% of all bankruptcy courts have a local rules on mediation of some sort.

An example of mediation’s upward evolution in bankruptcy is the Delaware Bankruptcy Court. Back in 2004, the Delaware Court adopts a local rule mandating mediation for all preference cases. Then, in 2013, it extends mandatory mediation to “all adversary proceedings filed in Chapter 11 case.” Also in 2013, this Court amends its local rules to add an early-mediation requirement for smaller preference cases (i.e., cases with <$75,000 at stake).

Another upward example is in New Jersey. The New Jersey Bankruptcy Court recently added a mandatory element to its local rules on mediation. It’s called “presumptive mediation,” which means that a case will go through mediation, before trial, unless an exception applies.

State and Local Courts

Mediation is, currently, a staple for resolving civil disputes in a broad range of state and local courts. The evolution of mediation in such courts has been upward for a long time.

Family law and personal injury disputes are two examples of contexts in which mediation plays a central and essential role.

Mediation is also central to addressing farm credit disputes in many farm states. Back in farm crisis days of the 1980s, legislatures in farm states adopt farm mediation laws, which establish mediation requirements before a creditor can sue to enforce its rights under a farm loan. Such early-and-mandatory provisions are proving to be highly effective.


The progress of mediation throughout the U.S. courts has been, since the 1970s, steadily upward toward greater, earlier and mandatory use. Bankruptcy courts have been late adopters in this evolutionary progress — but they are, nevertheless, making progress and catching up.

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