Mediation as “Entirely-Voluntary”: An Unexamined Value That’s Not Worth Keeping

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Examining Life

By Donald L. Swanson

The unexamined life is not worth living.

–Plato

And an unexamined value is not worth keeping.  Here’s an unexamined value in mediation that’s held by many people:

–“Mediation is an entirely-voluntary process and should not be mandated.”

This value is expressed in many ways, such as:

–“I will not order parties to mediate” – Federal Judge
–“Mandated mediation is a box-ticking exercise” – Mediator
–Mandated mediation is “contradictory to the discipline” – Mediator

I’ve often wondered where this value comes from: Is it a matter of natural law? Does it come from results of empirical studies? Does someone’s experience show that mediation mandates are harmful to the mediation process? Or is there some other basis for it?

So . . . I’ve been asking anyone and everyone who will listen where they believe this value comes from. And I get no substantive answer beyond restating the entirely-voluntary value and calling it an ethic or essential part of mediation.

A Proposition

The entirely-voluntary idea in mediation is, I believe, an unexamined value. And it’s a value that’s not worth keeping: it needs to be jettisoned for the good of mediation processes everywhere.

Three Practical Reasons

Here are three practical reasons why, upon examination, the entirely-voluntary value is an impediment to the effective use of mediation.

–Successful Programs

First, many mandatory mediation programs are highly successful: settlements occur in a high percentage of cases, the practicing bar in many jurisdictions embraces mandated mediation, and complaints of coercion rarely, if ever, are heard.

Here’s an example of successful programs. Nearly all U.S. Circuit Courts of Appeals have programs that assign cases to mandatory mediation. Such programs began in the Second Circuit, back in the 1970s, as an experiment to help manage burgeoning caseloads. Over time, the experiments began to bear fruit. And the result, four decades later, is that mandated mediation is an essential part of practice in nearly all U.S. Circuit Courts of Appeals.  Such programs, moreover, are successful in achieving settlements and are highly regarded for effectiveness.

So . . . how can it be said that mandated mediation is “contradictory to the discipline” or merely a “box-ticking exercise”? It can’t. Such statements are both unexamined and contrary to the reality of long experience.

–Under-Utilization

Second, the reality is that entirely-voluntary mediation programs tend to be under-utilized.  Such reality is the consistent finding of empirical studies.

And it is borne out by experience. There are, for example, voluntary mediation programs in small claims courts where mediators stand-by in the courtroom when cases are being called—to mediate disputes at no charge to the parties. And, despite encouragement from judges to utilize such services, parties don’t. These programs are, then, deemed ineffective—and often terminated.

–Why not, in such cases, simply order some of the disputing parties to engage in mediation before having a trial—and see what happens? The answer is this: the judges view mediation as an entirely-voluntary process and won’t do such a thing! This is a shame.

–Ordering Parties is Not New

Third, in what other lawsuit context are lawmakers or judges reticent to order people around. Heck, aside from filing a complaint or initiating certain actions, there is nothing in a lawsuit that’s entirely voluntary. Statutes and local rules and judges compel parties in a lawsuit, all the time, to:

–file responsive pleadings
–appear at hearings
–respond to written discovery under oath
–submit to deposition under oath
–appear as a witness
–participate in a pretrial conference
–prepare a joint pretrial statement
–appear at trial
–etc.

So . . . where do judges get off being bashful about ordering parties into mediation?

Conclusion

The “entirely-voluntary” mediation idea is an unexamined value that is detrimental to mediation processes and is an unnecessary impediment to the effective use of mediation.

** If you find this article of value, please feel free to share. If you’d like to discuss, let me know.

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