7 Myths About Mediation

As noted in my first blog, mediation is winning out in the marketplace, as evidenced by the severe decline in cases going to trial in the past several decades. For example, in 1999 there were 6,228 trials commenced in federal courts. Ten years later, although there was a substantial increase in filings, only 3271 went to trial.

With any change, there has been a growing spate of detractors concerned that mediation is undermining fundamental justice. They contend that trial by jury is the “purest form of democracy known to mankind,” that “mediation is public enemy #1 for trial by jury,” that “mediation is one of the leading factors reducing the trial bar to the endangered species list.” One federal judge criticized a local state bar association for stating the decrease in trials was “impressive.” He noted that the Seventh Amendment to the U.S. Constitution protects a citizen’s right to trial by jury in federal court. He added,

In fact, we all learn many things from a single decision of a single jury, and it proves that de Tocque was correct when he said that a jury is like a “public school that is always open.” Judges gain their legitimacy as decision-makers form jurors, not the other way around.

Being wedded to the past as detractors are, raises a number of problems: First, the United States is the only country in the world that still utilizes jury trials in civil cases (except for Louisiana). This might suggest that Americans do not trust the integrity of the bench to be fair and impartial. Much of what detractors argue is relevant only to the criminal bench and the potential overreaching of the Crown in criminal cases. However, the Sixth Amendment of the U.S. Constitution, which also applies to the states, assures trial by jury in criminal cases and no one would contend otherwise. It is the need for juries in civil cases that is the issue.

Second, the initial impetus to make mediation an acceptable alternative to the courtroom trial came from the courts themselves. It was the courts that initiated settlement conferences prior to trial, and it was the courts that required mandatory mediation in certain circumstances before a matter would be heard by a judge. At the federal level, the Alternative Dispute Resolution Act of 1998, mandated each federal court system adopt local rules implementing an alternative dispute resolution program. To this end, any number of federal appellate courts now require matters on appeal to be heard by a court appointed mediator before parties can appear before the court.

Third, the contention that jurors give us a benchmark for future comparable cases is belied by the fact that no one can predict what a jury will do. In fact, this is one argument mediators use to get parties to compromise. Lawyers note they win cases they should lose and lose cases they should win.

Fourth, it is contended fewer trials mean fewer appeals and this could undermine the growth and viability of the law itself. Common law requires a constant flow of judicial decisions and appeals so that judges can fulfill their law-creating function as circumstances require. It is contended that ultimately the paucity of contemporary judicial decisions applying and enforcing the norms of law may lead to a blurring and weakening of the authority of law itself.

This argument is diluted somewhat by the fact that to this day courts encourage parties to resolve their differences before trial, even requiring settlement conferences and offering mediation assistance with a judge or magistrate appointed to mediate the case. What detractors fail to recognize is that the implementation of mediation at all levels has been far more successful than they ever envisioned.

Fifth, detractors contend that mediation is nothing more than an instrument of big business and the insurance industry. They argue that such defendants utilize the process to push plaintiffs into settlement favorable only to industry. They suggest big business uses the carrot of future mediations to encourage mediators to favor them.

Such an argument confuses mediation with arbitration. In mediation, plaintiffs reserve the right to reject any settlement and resort to the courts. They cannot be compelled to settle unless it is in their best interest to do so. And the mediator who in any way favors big business will not long remain on plaintiffs’ scrolls of acceptable mediators. No mediator would want to be viewed as partial, undermining the fundamentals of fairness and integrity.

Sixth, critics question whether mediation can provide a “fair” resolution based on the merits without some form of judicial review. Because there is no appeal in mediated settlements, this, they contend leaves an unwary public vulnerable.

Of course, there is no review of negotiated settlements or settlements issuing from settlement conferences, and no one expresses concerns about fairness. Fairness is not the issue. Like any negotiated settlement, the only issue is whether both parties can accept the resolution. It is needs based, not result driven. If a party is insolvent, he or she might accept immediate payment for less rather than risk bankruptcy later to gain the possibility of receiving more. Or, if the driving need of a party is some form of recognition in a wrongful employment termination case, the dollar amount of what is fair, which is all the courts can provide, may not be the overriding consideration. An apology, on the other hand, may be the primary consideration. Mediation can accommodate nonmonetary considerations; a courtroom trial and appeal cannot.

Seventh, detractors contend fewer trials mean younger lawyers will not receive needed trial exposure, and, therefore, will push clients to settle when it may not be in their best interest to do so. This assumes the primary function of the courtroom as to provide a proving ground for younger less experienced lawyers, rather than a forum to serve the public.

Clearly, the interests of the parties and public should be paramount, not the nurturing of legal professionals. It is the obligation of the profession to provide clients with an acceptable result with the lowest cost as expeditiously as possible, and with minimum stress on the participants. This is the lawyers’ obligation in providing justice.