A Misguided Notion: Mediation is Entirely-Voluntary and Should Not Be Mandated

By: Donald L. Swanson

Mandatory mediation works.  It results in case settlements.  And it helps creates a culture for voluntary mediation.

But the idea of a mandated mediation is repugnant to some because it violates a “voluntary” ideal.  This is unfortunate.

 Evaluating Mediation

The ultimate goal of all civil litigation is this: to resolve disputes under the rule of law, without resort to fisticuffs, duels, brawls, combat or the like.  That’s it. Nothing more . . . and nothing less.

So, the first standard for evaluating mediation is: “Does it help resolve disputes?”

–If the answer is, “Yes,” then mediation should be used to help settle cases. That’s pretty simple.  And the answer is, indeed, “Yes.”

The next evaluation step is: “How can mediation be used to help settle cases more effectively?”  This is a more complicated question. But answers can be simple.

–For example, voluntary mediation systems are often under-utilized. So, mandating mediation can be helpful in increasing its use and developing a mediation culture.

The Wrong Goal

For people promoting a greater use of mediation, it’s easy to get focused on the wrong goal.  The wrong goal is this:

–to “do mediation,” instead of to “help settle cases.”

When doing mediation, instead of getting settlements, is the goal, the evaluation gets skewed.

–The focus, for example, often turns to doctrinaire views of what an ideal mediation should look like and adjusting mediation programs to meet the ideal.

–Instead, the focus should be on adjusting mediation efforts to increase and improve settlements.

–A specific example of an improper focus is: “Mediation is a voluntary process and should not be mandated.”

An Idealized Notion

The voluntary process = no mandated mediation idea is an idealized notion of what mediation should be. And it ignores the ultimate goal of getting settlements.

I’ve often wondered where this strictly-voluntary notion of mediation comes from. It did not come to us on stone tablets delivered at Mt. Sinai; nor did it come from such ancient law givers as Confucius, Solon or Hammurabi.

It is, instead, a recent idea. In fact, earliest experiments with mediation in the U.S. came in the 1970s as a form of mandatory mediations in the Second Circuit Court of Appeals. And those experiments have resulted in mandatory mediation programs existing, today, in nearly all of the U.S. Circuit Courts of Appeals.

A Misguided Notion

When evaluations of mediation turn on idealized notions of what mediation should be [i.e., strictly voluntary], instead of turning on a settlements goal, weird and unfortunate things happen.

–For example, small claims mediation programs around the U.S. operate free-of-charge where, (i) volunteer mediators are present in-court during a small claims call day, yet (ii) they are, in many instances, rarely utilized because mediation in such courts is entirely voluntary.  This is bizarre.

Studies show no significant difference in settlement rates between such voluntary mediation programs and similar programs that mandate mediation participation.

Yet . . . the small claims programs continue as voluntary-only. Or, worse yet, they get shut down entirely as inefficient and ineffective.  This is unfortunate in the extreme: it is a travesty!

But this is what happens when mediation goals turn away from promoting settlements and toward promoting an ideal of what mediation ought to be.

Next Steps

For courts where little-to-no mediation is happening, the judges ought to start mandating mediation, every now-and-then, in individual cases.

For courts where some mediation is happening irregularly but with some frequency, the judges ought to provide, by local rule, that certain types of cases will require mediation before trial, unless the court explicitly authorizes otherwise.

Such actions will serve the goal of helping settlements happen.

Conclusion

We need to get rid of the idealized notion that mediation is an entirely-voluntary process and focus, instead, on utilizing mediation (including mandatory mediation) to maximize settlements.

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