The Failings of Mediation

On September 17, 2018, federal judge Mark W. Bennett gave a brilliant dissertation on the concerns judges have concerning the impact mediation is having on the trial bar and our sacrosanct jury system. He noted that mediation is placing trial by jury and the onto the “endangered species list.” He echoed another federal judge who describes mediation as a threat to “fundamental democracy.”

Judge Bennett listed eight shocking truths about the impact mediation is having on the American legal system, and my comments on them through the lens of a mediator.

SHOCKING TRUTH #1: Mediation has almost single handedly ruined the trial bar.

Judge Bennett is correct that there has been a precipitous decline in cases tried in both federal and state courts. Professor Marc Galanter conducted a survey of both federal and state courts and found that in 1961 some 11.6 percent of cases filed went to trial compared to 1.8 percent in 2008, “continuing a long historic decline.”[1] Indeed, in 1999, there were 6228 trials commenced in federal courts. Ten years later, although there had been a substantial increase in filings, only 3,271 cases were tried. This dramatic decrease in trials, however, cannot be laid entirely at the doorsteps of mediation.

There were many causes:

First, much of the impetus towards mediation came from judges themselves. They encouraged parties to negotiate and settle cases before trial, and mediation is nothing more than an extension of negotiation – adding a third person to assist in the process. Additionally, judge introduced settlement conferences whereby judges and magistrates acted as public mediators to resolve pending matters. Even in appeals, some federal appellate courts require a matter to be mediated by a court appointed mediator before it will be heard by this court.

Second, costs of litigation have turned many from the courts to the arms of mediation. Lawyers charging $1000 per hour and $1500 per hour, and pretrial discovery costing $40 million and even $80 million, as occurred in one set of Microsoft cases, have dramatically reduced accessibility to the courts. As one federal judge stated:

While we have created the fairest system in the world for resolving civil disputes, it is so expensive that very few people in America can afford to use it. The court system serves the rich, those with insurance and those who can shift the cost of litigation to the rich and those with insurance. I cannot personally afford to use the system I treasure.[2]

Third, the more liberal use of summary judgments has also reduced the number of cases going to trial. According to Professor Galanter, the number of cases in 1970 disposed by trial was more than double the number disposed of by summary judgment. By 2000, summary judgment disposed of nearly four times the number of cases going to trial.

Fourth, the United States Supreme Court’s liberalization of enforcement of arbitration agreements has likewise dramatically impacted courtroom trials. Indeed, there has been a wholesale shift of entire categories of cases from civil court dockets to arbitration. Powerful economic players such as the securities industry, insurance industry, banking and credit card industries, have required all disputes to be resolved through arbitration. Thus, customers, employees, and contracting parties no longer have access to the courts.

All these factors combined have pushed a wary public into a mediation marketplace. As one federal judge stated:

There is now a resolution marketplace and mediation seems to be prevailing in that market.

SHOCKING TRUTH #2: Most trial judges, especially new vinted ones, love the fact their cases are resolved by mediation rather than trial by jury.

Judge Bennett suggests that with less trials, judges lose their skill set in trying cases and therefore are prone to act only as “managerial” judges, and this is undermining the quality of the parties’ court experience.

Judge Bennett may be correct with this assessment, with less trials a judge could become less astute when confronted with a trial. Knowing his own limitations, such a judge might push settlement harder than he should, which might lead to settlements which are unfair to one party or the other. And generally if a settlement is questionable, the burden falls on the plaintiff’s side.

The counterpoint to this truth lies in the very philosophy of mediation versus trial and the adversarial system versus a peacemaking system. Former Chief Justice Warren E. Burger of the United States Supreme Court addressed the question head on. He literally attacked not only the American court system but the very philosophical basis of the adversarial system itself. He called it a mistake that must be corrected. He declared,

Traditional litigation is a mistake that must be corrected. For some disputes, trials will be the only means, but for many claims trials by adversarial contest must go the way of ancient trial by battle and blood. Our system is too costly, too painful, too destructive and too inefficient for a truly civilized people.[3]

Then, he followed this with the trenchant observation that the profession had lost the focus of its calling, to provide justice to all who enter its hallowed halls. He stated:

The entire legal profession, lawyers, judges and law professors has become so mesmerized with the stimulus of the courtroom contest that we tend to forget that we ought to be the healers – not the promoters – of conflict.[4]

Finally, the Chief Justice refocused the profession on the true meaning of justice and the lawyer’s obligation to the client. He observed:

To fulfill our traditional obligation means that we should provide mechanisms that can produce an acceptable result in the shortest possible time, with the least possible expense, and with minimum stress on the participants. This is what justice is all about.[5]

And that mechanism is mediation. With any change having the tectonic impact mediation is having on our court system, there has to be some realignment. What is a constant is the fact there will always be the need for civil trials and appeals, and in the criminal venue trials remain a fact of life.

SHOCKING TRUTH #3: Most mediators have no idea about the true value of a case.

Judge Bennett is certainly correct that many mediators have not had significant trial experience. In fact, many are not even attorneys. That may be the reason they chose to become mediators in the first place. However, such a “truth” suggests a misunderstanding of the role of the mediator.

First, the line between mediation and arbitration must be identified and honored. An arbitrator, who acts as a judge and renders an award, must be familiar with the legal system and the rules and procedures governing a trial. Such a person needs to have extensive trial experience to be effective and fair to the parties.

The mediator’s role, however, is not that of decision-maker. He cannot impose upon the parties an award enforceable in the courts. His charge is not to determine the true value of a case and push the parties to that figure. Even if he is asked to be evaluative, he has no authority to impose his determination on the parties. They can always walk away and return to the courts if they wish.

Second, the mediator’s function is to determine how far apart the parties may be and then find ways to bring them together, find common ground, and settle the case. Such a result may objectively seem unfair to one side or the other, but the mediator’s role is not “fairness” but a result both parties can accept. What may seem unfair to the outsider may be fair to the parties because of unique circumstances – the parties are so stressed they cannot continue the litigation process, or the plaintiff needs funds immediately and not two years hence, or the defendant re4quires confidentiality to ward off a deluge of future cases, and a confidentiality clause in the settlement agreement. Without such a clause any settlement would be unfair in the eyes of the defendant no matter what the financial remuneration might be. In other words, fairness is in the eyes of the beholder based on their needs.

Third, the tools of the advocate – cross-examination, impeachment, discrediting, undermining, defeating – are designed to defeat the party-opponent. Such tools are an anathema to the peacemaker, who seeks peace, conciliation and healing. His skill set is entirely the opposite. It is not to find the time value of the case but common ground to settle the case.

Fourth, the only relief the advocate can garner from a court of law is monetary enhancement. Mediation, on the other hand, invites the parties to consider nonmonetary possibilities – an apology, a letter of commendation or recommendation, naming a conference room after a party, setting up a scholarship fund – which in many cases may be of more significance than monetary gain. With these goals, the mediator does not need to be a skilled trial lawyer.

SHOCKING TRUTH #4: Lawyers who mediate increasingly have no idea about the value of their cases and have lost the art of negotiation by atrophy.

If the skill set of the lawyer in mediation was only to determine the value of the case and then push for that during the negotiation phase, then trying cases would be of benefit in honing this skill. But this is not the skill set of the lawyer in mediation. His is to be a problem-solver, harmonizer and peacemaker that he might touch both parties to help them find not just resolution, but conciliation, peace and healing. Chief Justice Burger stated:

Lawyers must be legal architects, engineers, builders, and from time to time inventors as well. We have served and must continue to see ourselves as problem-solvers, harmonizers, and peacemakers, the healers not the promoters of conflict.[6]

These skills are not garnered through multiple courtroom appearances, but with working with parties, showing them concern and understanding and building rapport and trust. They are the skills of a peacemaker and not advocate.

SHOCKING TRUTH #5: Trial judges increasingly have no idea about the value of a case.

This truth suggests that lawyers are elevated to the bench without adequate trial experience and this undermines the level of justice available to those appearing before them. The short answer to this is, effort should be made to find more qualified candidates with trial experience.

A second answer is, if the quality of judging is deteriorating, this is reason enough why parties should turn to mediation to resolve their differences. Like the unpredictability of juries, which is a factor encouraging mediation, so too the unpredictability of what less experienced judges might do is also a factor. Certainly, the argument is not a basis for abandoning mediation or reducing it, especially when Chief Judge Burger described our civil system a mistake that must be corrected.

A third answer is, whether a judge is adequately qualified or not only goes to the award of damages in a bench trial. He is not asked, and he cannot consider, noneconomic possibilities available to the mediator. And this is a primary difference. The major benefits of mediation are lost regardless of the trial experience and background of the judge. Whether a judge has an idea of the value of a case or does not is irrelevant when contrasting the courtroom process with mediation.

SHOCKING TRUTH #6: The dramatic increase in mediation undermines the development of the common law by privatizing justice.

On its face, this truth has the greatest merit and needs to be carefully addressed. First, mediation does not privatize justice. It does not place in the hands of private persons the resolution of disputes outside the purview of the courtroom. It is not arbitration. Mediation merely permits the parties to resolve their differences privately before resorting to the courts. It is part of the negotiation process which has always been a first step in any legal dispute. Adding a third person mediator does not alter the process in any binding way. The mediator has no authority to compel the parties to do anything they feel is not in their interest to do.

Second, in negotiating, the parties are not compelled to add a mediator to the process. It is voluntary. The mediator has no authority legal or otherwise. He only succeeds if he can convince the parties to compromise and agree. The parties are always in control and empowered to take whatever path they wish, even back to the courts.

Third, as noted, mediation is not arbitration. The parties have not moved the decision-making function of the court into the hands of private arbitrators. The parties have total control of the process and decide what is in their best interests.

Fourth, although there are considerably less civil trials, critics of mediation overstate the impact this is having on the case load of appellate courts. For example, the U.S. Supreme Court has no dearth of cases set for review. And appellate courts in both the federal and state systems seem to have full calendars. In fact, any number of federal court of appeals require parties to mediate with a court appointed mediator before a panel will hear the case.

Fifth, the great bulk of cases settled, personal injury, employment, malpractice, etc., rarely raise significant issues for appellate review even when tried. Those cases raising important legal and constitutional questions most often reach the appellate courts through interlocutory appeals rather than trials.

SHOCKING TRUTH #7: The dramatic increase in mediation deprive citizens-jurors from participating in the civil justice system reducing the citizens’ faith in our civil justice system.

Certainly our forefathers recognized the importance of jury trials, for they incorporated the right to a jury into the Sixth and Seventh Amendments to the U.S. Constitution. The Seventh Amendment assures jury trials in all civil cases in federal court and the Sixth Amendment in all criminal cases in both federal and state courts. (Louisiana is an example where civil cases in state court do not provide for juries.) However, our forefathers’ concern was to protect the citizenry from the overreaching of the Sovereign, not to educate the public to be better citizens. In fact there is no mention of such a concern in the U.S. Constitution or otherwise.

SHOCKING TRUTH #8: The rise of mediation may increase non-meritorious lawsuits.

The simple answer to the concern that mediation fosters non-meritorious lawsuits is parties are not compelled to settle their cases when they mediate. A defendant feeling a plaintiff’s claim is frivolous or meritless will simply decline to mediate, or if compelled by court order to do so, it does not have to reach an agreement. And there are no penalties for not settling a meritless case. Further, there is relief in all courts against the filing of frivolous or meritless cases, which a defendant imposed upon can invoke.

Do you have any other thoughts? Please feel free to add your comments below.

[1] Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459 (2004)

[2] John A. Jarvey, Chief Judge, Southern District of Iowa (September 2010).

[3] Warren E. Burger, 70 A.B.A.J. 62 (1984).

[4] Warren E. Burger, the Role of the Law School in Teaching Legal Ethics and Professional Responsibility, 29 CLEV. ST. L. REV. 377, 378 (1980).

[5] Id. at f.n. 4, supra.

[6] Ibid.