Proposal for Standard Explanation in Mediation

Since writing my recent short article, Courts Should Make Mediations Good Samaritans Not Frankensteins, I have been thinking about how to maximize the substantial benefits of court-connected mediation while minimizing the risks of coercion.

Most mediators, mediation program administrators, and courts are conscientious about providing appropriate, high-quality mediation services.  Unfortunately, with some frequency, there have been reports of problematic behaviors by mediators, lawyers, and parties.  The challenge is how to maximize the former and minimize the latter.

Coercion is problematic in any mediation regardless of whether parties have been ordered to mediate.  When courts order parties to mediate, the courts have an obligation to minimize the risk of coercion.

This new short article proposes that courts require that standard explanations be provided to parties about the mediation process and their rights in mediation, and it offers model language that can be adapted to particular circumstances.

The language and process for administering the explanation should be developed through a dispute system design process designed to improve preparation for mediation.  This article identifies potential obstacles to effective implementation of this strategy.  With sufficient commitment, courts, lawyers, and mediators can optimize parties’ experiences of court-connected mediation and reduce their risks.

Take a look.

3 thoughts on “Proposal for Standard Explanation in Mediation”

  1. John,
    Thanks for tackling this multi-layered challenge: how do courts not only promote, but actually provide high-quality non-coercive mediation? As always, your questions are in great service to this field.

    I’d push back a bit on three premises here:
    1. The conflation of “problematic behaviors” in general with coercion. I think both are a challenge, yet for the purpose of problem-solving I think the two should be addressed separately. For instance, often coercion comes from no behavior at all but rather a system design feature. Similarly, there is lots of “bad” behavior in mediation that may have nothing to do with coercion.
    2. The proposal that a good strategy to minimize coercion is “to design mediation programs so that parties and lawyers want to reach reasonable agreements.” The underlying premise seems to be that mediation should be designed so that people reach agreements, which seems in and of itself coercive. I wonder if the goal should be that parties are able to evaluate their options for agreement well against their option of proceeding with litigation, using many of litigation assessment tools you yourself have promoted. This later goal seems reflected in your proposed “possible language” (up until the last sentence!). Courts and mediators would need to become comfortable with a “successful mediation” being one that may result in no agreement and a decision to proceed with litigation. If we are being true to the principle of non-coercion, we should accept that result as a reasonable (good?) one.
    3. A written version of the statement you propose would be sufficient for SRLs. You couch this one, so I think you anticipate some of the challenges here. In my experience, what seems most powerful for SRLs is when the judge herself talks to the SRL about mediation and answers questions the SRL may have. That personal contact from a court authority figure might alleviate some fear but also clarify that mediation is a process that could be beneficial, even if no agreement occurs. This also solves for literacy issues and learning styles that are more geared toward in-person, verbal connection.

    And an addition to your proposal:
    – I’ve noticed an increased willingness for courts to default someone for not appearing at mediation (and sometimes for not participating “in good faith” in mediation–you and I have both tackled this one previously). Default is perhaps the most coercive measure possible. If we are talking about non-coercive design, courts should consider matching the consequence to the behavior. E.g., if someone does not show up for mediation, the consequence could be that they lose the ability to have court-connected mediation or perhaps they pay the mediator’s fee. They should not lose their right to proceed with litigation or worse, be found in contempt and potentially incarcerated.

    Thanks,
    Heather

  2. Heather, I really appreciate your thoughtful response. It’s good to discuss important issues with you again.

    I mostly agree with you.

    Let me start by noting what I think is our fundamental agreement that mediation should be a process to help parties make decisions, particularly whether they want to reach agreement or proceed with litigation. The process should promote voluntary decision-making without excessive or inappropriate pressure. Ideally, there would be no pressure, but I think that in most cases, mediation of conflict inevitably involves some pressure.

    I agree that there are problematic behaviors that aren’t coercion. I think that there isn’t a bright line separating coercion from other problematic behaviors, and trying to distinguish them could lead to counterproductive diversion of attention. This is particularly the case because, as you say, sometimes coercion doesn’t come from specific behavior but is a system design feature. I assume that many parties – particularly less sophisticated one-shotters – feel pressure from unstated assumptions by all the professionals, including their own lawyers, that THE goal is to settle.

    I think that focusing only on coercion also can be counterproductive because mediators, program administrators, and judges may react defensively to suggestions that they are promoting coercion, even unintentionally. Focusing instead on promoting good practice should reduce experiences of coercion in a way that stakeholders could feel is desirable and non-threatening. This strategy would have the beneficial side-effect of generally improving mediation experiences in many cases, not only those that have potentially coercive dynamics.

    I think that reaching agreements is an appropriate and not necessarily a coercive goal of mediation. I don’t think that it should be the only goal, but it is an important goal of many parties who find litigation to be extremely stressful and problematic. I think that courts also have legitimate interests in promoting settlements – though we agree that parties should feel free not to settle and to go to trial if they want. I included the language encouraging parties to “work hard to find a mutually agreeable resolution of your case if reasonably possible.” This includes qualifiers “mutually agreeable” and “reasonably possible” to signal that parties are free not to agree if there is no such agreement possible. Perhaps some stakeholders would prefer other language to convey these ideas.

    It seems that we disagree about whether designing mediation programs so that parties and lawyers want to reach reasonable agreements is coercive. If parties want to reach agreements, it seems to me that this is, by definition, not coercive.

    I included the suggestion about cases involving self-represented litigants in response to a comment by someone who saw routine problems in cases involving SRLs and in which the general explanation wouldn’t be sufficient.

    I absolutely agree with you about limiting sanctions for non-attendance in mediation, as I discussed in my Good Samaritan – Frankenstein piece.

    Thanks again for your very thoughtful response, Heather. I invite you and others to respond.

  3. This takes me back to the old Saturday Night Live ad for Shimmer (Dan Aykroyd: “It’s a dessert topping.” Gilda Radner: “No, it’s a floor wax.” Chevy Chase: “You’re both right!… Tastes great, and just look at that shine!”), as I agree with most of the points raised.

    Coercion is a tough dynamic to preclude, as many would argue that it’s defined solely by the recipient: if you invite or instruct me to take an action, one which I perceive to limit my choices because I believe you can and will deliver some sanction if I choose from beyond those choices, I’ve been coerced by you. Note that your intentions or goals are not considered; my perceptions of threat and constrained choices are.

    The literature on coercive institutions is relevant here, too: societies empower some officials or organizations with coercive power (military, law enforcement, courts) to maintain desired order. As Andrew Thomas explained to me, “People aren’t the in the habit of saying ‘no’ to the judge.” And as numerous case managers observed, litigants (especially SRLs) understand any invitation or instruction from the court as imperative, usually with an undefined consequence for non-performance.

    So where in our courts might we locate the presentation of mediation as an often-useful, sometimes-efficient option? Posters at the filing window? Banners on the website? I’ve been campaigning for a short video, which I think remains an upcoming project of Georgia’s court/DR office (GODR.org).

    I think of Donna Shestowsky’s work on litigant preferences and writings by Julie Macfarlane and John Lande and many others on how/why attorneys might employ mediation, and then Nancy Welsh’s, Jackie Nolan-Haley’s, and many others’ recommendations to ensure self-determination, and I hope that we’ll continue to tinker toward a respectful and effective way to encourage consideration and use of court-connected mediation.

    I hunch it will require some stakeholder involvement, and perhaps even those ABA “Preparing for Your Mediation” pamphlets of years ago… as Heather notes above, we need to both promote and provide quality mediation, as free of coercion as possible (with the recognition that coercion-free is not up to us).

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