In my last post, I gave two examples in which mediators were being called upon to act outside of their accepted roles in order to obtain fairer outcomes. One side of the coin was asking that mediators recommend sanctions against parties who fail to negotiate in good faith. The other side wanted mediators to obtain the same outcomes for cases with the same set of facts. The latter, in particular, stretches the concept of mediation beyond its defined borders because it requires mediators to insert themselves into the decision-making process in order to get the same results with different parties.
Nancy Welsh discusses even more egregious examples in “You’ve Got Your Mother’s Laugh: What Bankruptcy Mediation Can Learn from the Her/History of Divorce and Child Custody Mediation.” She cites programs in which mediators were asked or allowed by the court to make binding decisions, request discovery, and otherwise act outside of their appropriate role. As in the Nevada Foreclosure Mediation Program, these roles were given to mediators in order to address specific needs that cannot be addressed by the traditional role of mediation.
Which leads me to the point of this post. As courts lean more on ADR, they are doing so by stretching the role of mediation rather than looking to other processes that might better fit their needs. Welsh argues that doing so confuses parties as to what mediation is and can lead to abuses of the judicial system – for example, by entering information into discovery for mediation that can therefore no longer be used in court because of mediation confidentiality rules. It’s better, she says, to develop a set of processes than to contort a single one into many shapes.