Like David River, I have really enjoyed this spirited exchange regarding the proper role of mediation and mediators in the dispute resolution process. Gini, I thank you again for your vision and courage in creating this website.
Although mediators might not see eye-to-eye on every nuance of Alternative Dispute Resolution (ADR), it is no stretch to declare at this point that most neutrals (regardless of pedigree) want to help adverse parties resolve their differences before a full blown trial or evidentiary hearing on the merits. As I am sure many long-time servers will recall, the opening questions for this Law and Mediation discussion centered around: (1) what mediators are best equipped to facilitate mediation; (2) the type of training, formal or informal, necessary to be an effective neutral; and (3) how mediators who are not also attorneys might avoid some of the pitfalls traditionally associated with ADR (i.e., unauthorized practice of law) when being of service to adverse parties.
As most readers know by now, I firmly believe that the Law (and the proper recognition of its role in all forms of dispute resolution) is critical to fully answering these questions. We are well past the days of Locke, Voltaire and Jefferson when we could speak philosophically about yielding to the Law’s will. We all know by now that we must follow the Law, or suffer the consequences if we fail to do so. At the same time, in crafting my various responses over these weeks, I have tried to be mindful of the delicate tightrope that all mediators must walk in trying to maintain the peace long enough to help adverse parties find and hold common ground. At the end of the day, however, if the peace is to be lasting, the participants must have the assurance of Finality, regardless of whether they find a resolution via mediation or the courts.
This truism of Finality, like the age old chicken and the egg theory, really starts and ends with how the parties appeared for mediation in the first instance. I am not aware that anyone has ever threatened to mediate an opponent “all the way to the Supreme Court”. So, it is fairly certain that in most, but not all instances, mediation is an “after-thought” that arises either because one party has already initiated a legal proceeding against the other, and mediation was either mandated by some other body (e.g., the Court Order or Statute) or the advocates for the parties suggested that the matter be discussed with a mediator before litigating half-cocked.
The fact that mediation is an “after-thought” does not denigrate its importance or utility. This is just an every day fact of life. The parties know it, if they have ever heard of mediation in the first place; veteran mediators know it (even if they are hesitant to acknowledge the fact publicly); and the Courts, with overcrowded dockets and dwindling resources, certainly know it, thus explaining the push for mandatory mediation around the country. If the converse were true, I suspect Hollywood would have created some prime-time drama or reality show by now that centers around mediation. It has not happened to my knowledge, and likely never will because that is just not where we are as a society. We want finality in life and in art, and life certainly seems to imitate art in the dispute resolution world, be it in the boardroom, courtroom or on television.
Consequently, the questions we have grappled with over these weeks start and end, in my view, with what did the complaining party really hope to gain by filing a legal action against the alleged wrongdoer in the first place. Regardless of any mixed-motives, an overriding reason likely is that the complainant believes that he or she has been slighted and wants to end the wrongdoing. Although mediation might help in this regard, it does not, and in fact, cannot guarantee the finality that comes from a court order. Mediation is all about resolution; and the introduction of what might be, in the context of judicial proceedings, excess facts and/or emotion can only complicate the system and imperil well-intentioned mediators who are not attorneys in the process. This is true even in cases where mediated settlements are breached, which happens quite frequently. In these situations, the only recourse left to the parties is to go back to court for a ruling.
Interestingly, even some appellate courts have instituted mandatory mediation programs in the United States. In these instances, the mediator almost always is a lawyer who works for the court, and the discussions with the parties (or their representatives) focus more on the strengths and weaknesses of the parties’ legal positions than the emotions that carried the dispute into the courtroom. Here again, the question is whether the parties can find common ground before the court of appeals enters a final order. There is nothing binding about this process. Mediation, even at this stage in the case, simply reflects a judicial temperament to balance the appellate court’s scarce resources with the parties’ need for finality. When the parties believe they have something to lose (or the question on appeal is acknowledged to be a close call), late stage ADR can work. However, if the appellant (i.e., the party filing the appeal) has already lost at the trial court level, there is little hope that additional “talk” on appeal is going to resolve the problem absent full briefing and, if permitted, oral argument before the court of appeals.
In closing, I must reiterate my belief that mediators (regardless of pedigree) act at their peril if they attempt or allow the mediation process to mirror a “fact-finding” process. The more facts (or emotions) on the line, the more strident the parties can become in their positions. Unfortunately, the more entrenched the parties become, the harder the mediator has to work to keep them together. All too often, the only velvet hammer left at some stage in the mediation discussions is to remind the parties of the very real threat of protracted litigation and all its attendant uncertainties if the dispute cannot mediate to a resolution. I have not seen anything over the past several weeks to dissuade me from this view.
For attorney mediators, placing this “hammer of litigation uncertainty” on the table is not a problem because Law (or a misunderstanding about legal rights) typically is at the core of the process. If mediators who are not attorneys can avoid this “Elephant in the Room”, it appears that they are the better for it. If they cannot, however, I see no end in sight to the very real concerns like those expressed in David River’s opening presentation: “In my private practice, without a J.D., I constantly walk the line of ‘unauthorized practice of law’… .” I do not believe David’s plight is a permanent obstacle; rather, it appears to be a problem of choice to either adhere and conform to the Law or knowingly straddle an uncertain fence.
Best wishes,
Rawle
This concludes the wonderful exchanges between my guests, David and Rawle, at least for now. Both generously shared their limited time and honest views with us, and I thank them. Both also have agreed to “stand by” for future posts. Please email me with questions you may have for them, or ideas for what you would like to see discussed.
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