Do We Ask And Expect Too Much From Mediation? (A Fourth Circuit Mediation Order)

By Donald L. Swanson

Sometimes, mediation is asked and expected to do a lot. And sometimes mediation is asked and expected to do more than it can actually perform: i.e., many puzzles and problems defy solution.

A new mediation order out of the U.S. Fourth Circuit Court of Appeals asks and hopes for a lot from mediation.

I’ll leave it to you to decide whether the order is asking and expecting too much.

The Order

The case before the Fourth Circuit is The Coalition for Equity and Excellence in Maryland Higher Education, Inc. v. State of Maryland, Case No. 17-2418.

On January 2, 2019, following oral arguments, the Fourth Circuit entered this Order:

“[I]t appears to the Court that both parties have well-presented arguments, but that neither party has a realistic appreciation of the strengths and weaknesses of their respective claims and contentions.

The Court is of the firm conviction that this case can and should be settled. Otherwise, the parties will likely condemn themselves to endless years of acrimonious, divisive and expensive litigation that will only work to the detriment of higher education in Maryland.

Wherefore, . . . the Court orders the parties to appear before the Circuit Mediator of this Circuit . . . and hereby now refers this matter to mediation . . . The Court further directs counsel to forthwith consult with their clients and obtain as much authority as feasible to settle this case. . . .

The parties are advised to proceed in all good faith to reach a mediated settlement . . . The Circuit Mediator shall report his view of the good faith progress of this mediation every 30 days.”

The case is on appeal from an Order (Doc. 642) and a 70-page Memorandum opinion (Doc. 641) by Judge Catherine C. Blake, of the United States District Court for the District of Maryland, dated November 8, 2017 (in Civil Case No. 06-2773).

What follows is from Judge Blake’s explanation of the case in her Memorandum opinion.

Historical Backdrop

The years of segregation under law at Maryland’s public institutions of higher education came to an end some decades ago, and the State has much to be proud of in its public colleges and universities.

But deficiencies remain. So, in 2006, plaintiffs sued the State of Maryland. The essence of plaintiffs’ claim is this:

• Maryland’s distinguished historically black institutions (“HBIs”) serve a vital mission in our system of public higher education; but
• Current policies and practices of program duplications, traceable to the de jure system of segregation, have segregative effects at the HBIs; and
• In such circumstances, the Supreme Court has placed the burden squarely on the State to reform such policies “to the extent practicable and consistent with sound educational practices.”

A 21-day bench trial occurred in September and October of 2012, and Plaintiffs prevailed. On October 7, 2013, Judge Blake ruled (Doc. 382, at 24):

–The State of Maryland “has failed to eliminate the traceable de jure era policy of unnecessary program duplication for Maryland’s HBIs.”

So the case moved into a remedies phase.

Mediation

After the October 7, 2013 ruling, a mediation occurred on possible remedies. It lasted for more than a year but did not result in a settlement.

–Mediation Confidentiality Issues Raised

As the unsuccessful mediation wound down and a remedies hearing approached, the State of Maryland sought a protective order to exclude mediation materials from evidence at the hearing. In particular, the State wanted to exclude plaintiffs’ expert reports and associated documents regarding proposals that list courses (and associated funding) each institution would prioritize in the context of a proposed settlement.

–Ruling on Mediation Confidentiality

The court did exclude some of such documents from evidence, because of mediation confidentiality. But the court ordered that the expert reports, themselves, could be used as evidence in the remedies hearing.

Remedies Proceedings

The parties each submitted remedies proposals, and a six-week evidentiary hearing thereon ensued.

After the hearing, the court concluded that neither side’s proposed remedies will work (see Judge Blake’s November 8, 2017 opinion—Doc. 641, at 3).

So, the court ordered appointment of a Special Master to consult with each side and propose a remedial plan that “encourages other-race students to attend the HGIs” (Id.). And the court admonished the parties to recall that:

• “this case is not about institutions but about the constitutional right of students to attend any public college or university for which they are qualified without being required to accept racial segregation at that institution”;
• crafting such a plan “is a daunting task” that requires “the good faith collaboration” of the parties; and
• collaboration is needed “to strengthen and enhance Maryland’s HBIs for the benefit of all Maryland students, present and future.”

Conclusion

Mediation in this case is a difficult task.  And a prior mediation of the same issues and between the same parties—one that lasted an entire year—has already failed.

What do you think:

• Is there any chance of mediation success?
• Is there any result, short of a complete resolution of all issues, that might be considered a mediation success?

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