Voluntary participation. It’s a core principle of mediation, as it structures an environment where self-determined settlement is possible. It’s also a primary distinction between mediation and litigation. Sure, a court can require parties to attend a mediation session. But, for an agreement to meet the needs of both parties and be sustainable, both parties’ participation must be voluntarily. A mediator may be able to report if you do not appear, but cannot—should not—make you participate.
In the era of major state budget cuts, the judiciary has not been preserved from the knife. As RSI has noted before, the judiciary is cutting mediation programs in part or in whole across the country. But the converse has also happened; as courts cut support for certain caseloads (i.e., family, small claims, restorative justice), they look to mediation to take care of these cases.
RSI certainly supports mediation as a complementary process to traditional court proceedings. Mediation can do many things that a court does not, including listening to longer versions of litigant’s stories and helping parties come to their own, self-determined resolutions.
However, we also know that the very nature of mediation—its voluntariness—means that it can never replace the court system. Everyone has to agree to participate in mediation for it to be a meaningful process that could lead to a resolution. Everyone does not have to agree to participate in court for a court process to lead to a resolution; a judge will issue a decision based on the law, whether or not litigants testify or introduce evidence. If only mediation existed, people who do not agree to talk to the other person about the dispute would have nowhere to go to enforce their rights.
Yet, as San Joaquin County, California, considers eliminating its small claims court, some point to the availability of mediation as a suggested substitute. But, as a California journalist rightly points out, mediation as a substitute for an entire court could lead to even greater backlog. Both parties must agree to mediate the case. If parties refuse, which is their prerogative, they will add their name to a long list of cases waiting to be heard by a general civil judge. Upon closing the small claims court, it is estimated that the San Joaquin court general civil division may be able to hear only 300 of the former small claims cases a year. Currently, the court hears about 3,000 cases a year.
Because the nature of mediation requires that parties reach a decision about settlement voluntarily, it would be impossible to call on mediation to completely replace a formal court system. To maintain its integrity and benefits, mediation should extend, not short-change, justice.