By: Donald L Swanson
In many courts, these days, mediation reigns supreme. This is so-much-so that,
- court reporters complain about mediation cutting into their business;
- judges complain about cases settling in mediation and no one trying cases any more; and
- attorneys in casual conversations commonly talk about preparations for and successes in mediation, not trial.
Such realities do not exist in other courts. And get this:
- in many “court-connected” mediation programs, the process is administered by the court, which appoints mediators and subsidizes mediator fees; yet
- mediation is often underutilized in courts with such programs.
An Ultra-Doctrinaire and Idealized View
How can a court-connected mediation program possibly be underutilized? I propose this answer:
It happens when judges refuse to mandate mediation because of an ultra-doctrinaire and idealized view of mediation as an “entirely voluntary” process.
A Small Claims Illustration
Here’s an illustration of under-utilization from a study by Prof. Donna Shestowsky [Fn. 1]. The study’s report [Fn. 2] describes research findings in the small claims context on how to get litigants to choose mediation.
—Here are the findings
Litigants are “more likely” to mediate if “an authority figure” explains “a number of legitimate, easy-to-understand incentives for doing so.”
- It’s not enough for a judge to say, for example, “I think you should go to mediation,” or “Do you want to try mediation?”
- Instead, here’s what’s required from a judge for a small-claims party to seriously consider mediation: the judge needs to “literally or figuratively,”
“step down off the bench,”
“talk with litigants in a casual way,”
“use plain language to explain the incentives that mediation has over trial,” and
“ask if litigants have any questions.”
Such an effort does not mean the parties will then actually choose mediation. The effort merely gets a serious mediation consideration from the parties.
—A Better Idea: Mandate Mediation
Here’s better idea: the judges should mandate mediation—they should require parties to mediate before their case can go to trial.
After all, if the court is already incurring administrative costs for its court-connected mediation program, why not make sure the program is actually utilized?
The answer is what I’ve suggested above: judges refuse to mandate mediation because of a “voluntary” mediation ideal—they see a mediation mandate as improper, unwise and unethical.
But the “entirely voluntary” ideal is doctrinaire folly. Here’s why:
- Highly-successful court-connected mediation programs have been mandating mediation for decades in nearly all of the thirteen U.S. Circuit Courts of Appeals; and
- Despite such successes in highest-level courts, many judges still insist that mandated mediation is improper, unwise and unethical? Now, that’s a problem!
An Experiment Solution
Some small claims overseers complain that their court-connected mediation programs are underutilized and ineffective and should be shut down!
For small claims judges facing such complaints and pressure, here’s an experiment solution:
- start ordering a handful of cases, every now and then, into mediation;
- let the mediators explain how mediation works and it happen; and
- then, see what results.
If, after giving such an experiment an adequate and unbiased try, judges are still not convinced, then stick with the under-utilized program — or terminate it.
Regular Court Contexts
The problem of underutilized, court-connected mediation programs is not limited to small claims contexts. Research suggests, for example, that many lawyers “do not discuss ADR with their clients.” Prof. Shestowsky’s study confirms this:
- “we found that represented litigants were not significantly better at identifying court ADR options than their unrepresented counterparts.”
Prof. Shestowsky studied a “variety of civil actions,” such as “property, personal injury, contracts, and medical malpractice cases,” with the “mean and median amounts in controversy” at $2,053,051 and $35,000, respectively.
Her study asked litigants, at the conclusion of their cases, to “list each procedure they or their lawyer contemplated for their case.” Here are the responses:
1. most frequent response = “negotiation”;
2. second-most frequent response = “trial” (70.23% of these respondents were plaintiffs);
3. “less than one third” said they “contemplated mediation”;
4. the “least contemplated” was “judicial settlement conference”; and
5. The most commonly reported “other” procedures that were “contemplated” were “filing countersuits” and “Bankruptcy.”
So . . . “less than one third” of litigants considered using mediation? That’s a poor number. But it’s even worse because of this fact:
- The survey was of litigants whose cases made them eligible for the court’s mediation programs.
How can 66+% of litigants in such courts fail to even consider using mediation?! The answer is, I submit, the same as in small claims courts:
- judges have an ultra-doctrinaire and idealized view of the “voluntary” character of mediation and refuse to mandate mediation.
The solution for such courts is the same as in small claims courts: start experimenting with mandating mediation, every now and then, and see how it works out over time.
The problem of under-utilization of Court-connected mediation programs is real. And it arises from an ultra-doctrinaire view of a mediation ideal as an “entirely voluntary” process.
To address this problem, judges could start experimenting with mandating mediation and see how it goes.
Footnote 1: Donna Shestowsky is Professor of Law and Martin Luther King Jr. Scholar, University of California, Davis, School of Law. J.D., Stanford Law School; Ph.D. (Psychology), Stanford University; M.S. (Psychology), Yale University; B.S., Yale University.
Footnote 2: Prof. Shestowsky’s report is, “When Ignorance is Not Bliss: An Empirical Study of Litigants’ Awareness of Court-Sponsored Alternative Dispute Resolution Programs,” 22 Harvard Negotiation Law Review 189 (2017)
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