How To Mandate A Voluntary Mediation System That Thrives: A Minnesota Example

By Donald L. Swanson

Back in 1994, Minnesota state courts adopt a “mandatory consideration” rule for alternative dispute resolution (“ADR”) possibilities. The rule works, back then, like this:

• Attorneys are required to, (i) consider using ADR in every civil case, (ii) discuss ADR with their client(s) and opposing counsel, and (iii) advise the court of their conclusions on the use of ADR.
• The parties and their attorneys have complete discretion on whether and how to use ADR, but if they decide against using it, judges may nonetheless order the parties into non-binding ADR.
• Judges often order ADR under this rule, even when not requested by the parties, which becomes “a key factor motivating attorneys to select mediation.”

2003 Survey of Judges

A 2003 survey of all 287 Minnesota state district court judges about this ADR rule is described and analyzed by Bobbi McAdoo and Nancy A. Welsh, in “Look Before You Leap and Keep on Looking: Lessons from the Institutionalization of Court-connected Mediation,” Nevada Law Journal, Vol. 5, Iss. 2, Article 6 (Winter 2004/2005).

The 2003 survey, though dated, is still instructive.

[Notes: (i) Information and quotations herein are from this McAdoo and Welsh publication; and (ii) the meaning of the term “alternative dispute resolution” in the Minnesota rule is virtually synonymous with “mediation.”]

–Thriving Developments

The survey reveals a thriving mediation program:

• “attorneys began to select and participate in mediation routinely,” and its use became ‘institutionalized’”;
• “the Minnesota courts’ ADR program is mostly lawyer-driven and virtually runs itself”; and
• mediation in Minnesota state courts can, theoretically, continue indefinitely with “no additional court resources to manage, monitor or evaluate its operation or results.”

–Thriving Results

The survey finds that judges are happy with results achieved under this ADR rule. For example, the survey says “judges perceive” that the ADR rule is achieving the following objectives:

• Mediated outcomes are “consistent with the rule of law” and “durable”;
• Parties “have the opportunity” to “express their views” and to have their views “heard” and “considered by someone involved in decision-making”; and
• ADR is effective in “getting cases settled,” in “reducing the number of trials,” and in contributing to “earlier settlements” or “earlier trial dates” for cases that don’t settle.

–But Nothing is Perfect

The publication reports on “limitations” perceived by some judges.  These include:

• Some parties want and need “their day in a real court”;
• Some parties “may be denied merits-based adjudication” when they “are entitled to it, have requested it and would prefer it”;
• Mediators are “largely unregulated,” and “few courts operate rigorous monitoring systems, or any systems at all” — so “the potential for coercion is very real”; and
• Efficiency may be an illusion because, “cases settle anyway” and “mediation actually may increase some parties’ costs.”

[Editorial Comment:  Such expressions of concern are dated (since the survey is from 2003) and, in today’s environment, seem antiquated and outworn.]

What can we learn from this?

1.  No system of justice is perfect. Every process has its limitation, whether real or perceived. And limitations always need to be considered in the implementation and execution of any mediation system.
2. The role, values and attitudes of the judge in any given case are crucial to implementation and execution of any mediation system.
3. Any bankruptcy judge who struggles, now or hereafter, with heavy caseloads might take heed of and embrace the Minnesota ADR rule and experience described above.

Conclusion

The Minnesota ADR rule discussed above is simple and easily executed.  And it can produce a voluntary mediation system that thrives!

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