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.
Right on. Seems self evident, but I keep hearing the bluring by others of the difference between a court ordering parties to GO to mediation verses AGREEING to necessarily settling a matter there. The degree to which a court adds to the confusion (e.g. out west?) by adding pressure to come to a deal in the mediation, mediation is corrupted and losses value. If a court forces a mediator to “report” beyond “deal/no deal” it morphs into something other than mediation and keeping the “mediation name” on the process engenders distrust of mediation – and a lot of its usefulness.
Voluntariness is a key difference between mediation and court. But you could make mediation mandatory (as parties can do by contract, or as legal systems can do by requiring pre-dispute mediation), and it still would not entirely replace court. We need court as a benchmark to tell us what the legal system thinks is the right result. We need court to establish rights and rules. We need court as an alternative to the voluntary settlement of disputes, so the parties know that if they don’t agree, they might end up in court. And we need court for those people who are not enlightened enough to reach a voluntary settlement to resolve their disputes.
Your comments are indeed very insightful. My bag is the construction industry and what I have found over the years is the failure to PREVENT the need for such discussions by structurally doing those things which will cause the project to be managed and completed in such a manner that formal dispute resolution (either mediation or litigation) is not required. We are beginning to develop and implement processes (such as delivery systems, BIM, partnering, collaborative design and construction) and they are paying off. I have found often in mediation there is not real “voluntariness” because there is a stampede to obtain a resolution, irrespective of facts, equity or contractual considerations. And I believe that not all cases should have a win/sin. There are many situations in which a win/lose is totally consistent with the facts, equity and contract considerations. Frankly, I believe many mediations are too dominated by the lawyers, thus diminishing the concept of the principals themselves making the decisions.
I’ve seen this problem arise with the foreclosure mediation programs. Washington state has inacted a foreclosure mediation act and it has blurred the lines of ‘voluntary’ involvement. It’s been interesting watching the program try to stay true to the values of mediation i.e. voluntary, confidential etc. and still achieve it’s goals of getting banks and home owners to work towards an agreement that may not have to result in foreclosure.
Ivy, I’ve seen many states and municipalities struggle to define exactly what kind of process they’re creating to mitigate foreclosures. Some states call the process dispute resolution or conciliation to avoid the mediation label and all it implies. These states usually do not call the third-party a mediator, though mediation skills are important to the process. Perhaps these modifications speak to the need for a more custom-fit approach to dispute resolution. The process that is appropriate for one dispute, or even dispute type, may not be appropriate for another.
Can mediation replace the Court proceedings? I think the lawyers are just taking this for granted after all. This is a clever idea, if there is no doubt in implementing this issues. Lawyers will just have the recommendation on some clients to do valid prospects.