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When It Comes to Mediation, Less Regulation May Be More

Jennifer Shack, June 16th, 2014

You’re a judge charged with overseeing a voluntary civil case mediation program in your court. Because you’ve been monitoring your program, you know that, though 75% of cases going through mediation are reaching agreement, the program isn’t doing much to reduce judges’ workloads because mediation generally occurs very late in the case.  What do you do?

You have at least three options:

  1. Work to educate lawyers and parties about the benefits of early mediation
  2. Mandate early mediation
  3. Provide incentives to mediate early on

Or consider this scenario: You fear that unbalanced power in mediation will lead to unjust outcomes. You’re particularly concerned about cases in which only one side is represented, but also worry that repeat players will have an advantage over those who haven’t been in litigation or mediation before. What might you do?

  1. Prohibit mediation in cases in which only one side is represented
  2. Mandate that mediators use evaluative methods as a way to balance the playing field
  3. Give parties a period of time to accept or reject  the agreement terms reached in a mediation
  4. Provide free lawyer services for the unrepresented party
  5. Allow the use of unbundled services so lawyers may represent litigants solely in mediation
  6. A combination of these

Before you make a decision, you may want to read, “Where Mediation Is Concerned, Sometimes ‘There Ought Not To Be a Law!’” Written by the authors of Mediation, Law, Policy, and Practice, the article warns of the dangers of over-regulating mediation through statutes, court rules or court rulings.  The authors call on policy-makers to ask six questions when deciding whether to create a new regulation. They are:

  1. Will the proposed regulation have the desired effect in light of mediation confidentiality? If you mandate that a mediator does something in mediation, can you enforce it without piercing confidentiality?
  2. Will mediation participants be aware of the new regulation? This appears to be most important when the regulation affects only specific areas of the law or specific uses of mediation. The authors cite as an example the requirement in only some programs that mediation agreements include a warning such as “this agreement can be enforced by a court.” This has resulted in litigation because parties didn’t realize they needed such language in their agreement.
  3. Does the regulation conflict with deeply ingrained practices? If so, it may be ignored or, at best, followed in such a way as to be ineffective.
  4. Are the lines between mediation and litigation muddied by the regulation? This is particularly true when the regulation is intended to increase settlements, such as allowing the mediator to make recommendations to  the judge if the case doesn’t settle in mediation.
  5. What are the unintended consequences of the regulation? For example, if you limit the mediator pool by imposing education requirements, will you lose good mediators in the process?
  6. Can the goals for the regulation be achieved without the regulation? For example, if you want to ensure the quality of mediators, could you achieve your goal through better supervision rather than through the setting of minimum qualifications?

With the list of statutes in Mediation Law, Policy, and Practice reaching 2,662 pages, asking these questions may very well be needed to maintain mediation’s distinctive characteristics: self-determination, confidentiality, informality and neutrality.

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