Wednesday, May 28

The Problem with Court Mediation

It's early in the week for another article of substance and I usually try to back end them, but this one is an exception.

A new article in the George Mason Law Review by Leonard Riskin and Nancy Welsh just might scratch an itch for many of us.

Is that All There is? 'The Problem' in Court-Oriented Mediation says that court-oriented mediation now reflects the dominance of lawyers and insurance claims adjusters - and one shot players are not catered for.

Riskin/Welsh opine that these repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and civil non-family disputes as a matter of merits assessment and litigation risk analysis - but say court mediation programs fail to meet expectations and needs of ordinary one time users - mediation is structured so that litigation issues predominate; other issues - personal, psychological, relational, communitarian - disappear.

Abstract: The "alternative" process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties.
However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players.
In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand "the problem" to be addressed in personal injury, employment, contract, medical malpractice and other "ordinary" civil non-family disputes as a matter of merits assessment and litigation risk analysis.
Mediation is structured so that litigation issues predominate; other potential issues - personal, psychological, relational, communitarian - disappear. [read more]

Hat Tip to the wonderful Legal Theory Blog


Dina Lynch Eisenberg said...

Certainly, this is one of the more disappointing outcomes of mediation becoming more mainstream. However, the opportunity for greater understanding of and attention to the 'secondary' issues you mentions still exists for those consumers who choose to you private practitioners.

It is the responsibility of mediators to educate the public about these differences and make a compelling case for mediating outside of the court structure when the primary issues are personal, relational or community based. That's not a new message for me, I know. Hopefully, I say it more persuasively when Mediation Mensch relaunches as a podcast.

Thanks, Geoff

Chris Annunziata said...

I will read the full article later, but I have one comment on the abstract:

Cases involving "a son‘s heart-breaking disabilities" simply do not end up in "court-referred" mediation.

At least not by my definition of "court-referred" - which is referral to a free or reduced cost mediation provided by a mediator on an approved roster. These are also typically limited in time.

In this jurisdiction, the court may order the parties to mediation and there may be a coordinator who assigns cases for those without a preference, but every county allows the parties to choose to use their own mediator if they wish, rather than one from a roster or rotating list.

The complex cases (personal injury or otherwise) don't end up in a court-referred program where the parties are limited in time or restricted to using a mediator from a rotating list. And the good mediators in this community do not apply cookie cutter approaches to the complex cases.

And most of the so-called single issue cases I see in the court referred programs, simple PI cases, collections matters, just do not have significant emotional elements. For the parties it is a matter of economics. How much will you pay and when?

Vickie said...

Here in Los Angeles, all types of cases at all levels of $$$ and complexity are "referred" to court-annexed mediation -- both in the local federal and state courts, and at the trial and appellate level.

I've personally dealth with death and disfigurement cases(medical malpractice; police misconduct); civil assault and battery; and, commercial disputes of all kinds.

I'm also not certain that I've ever run into a "single issue" case -- either in my private practice; in my service to local court's; or in my community mediation service.

There are people and commercial interests involved in every legal action that, if explored, permit the parties to find solutions that are not simply merits and position based.

It's not the existence of court annexed programs that's the problem; it's the limited training that the Courts accept for participation on their panels. This is particularly true of attorneys and retired judges for whom position and merits-based settlement conferences form the bulk of their practical experience.

Teach panel members interest-based negotiation techniques, expose them to facilitative and transformative mediation theory and practice, and you'll see immediate improvements in court-annexed programs.

Listen, it took me one full year to really "get" how blinkered I'd become by rights/remedies and how much broader a canvas I had to paint on as a mediator using interest-based negotiation skills.

Let's not despair! Let's just help make mediation practice better in all venues at all levels.