Mediation is a user-directed dispute resolution process with the chief features of voluntary cooperation between two or more parties motivated to solve a problem and a neutral intermediary or mediator facilitating resolution. Even in this definition, we see the outlines of the two structural challenges affecting the effectiveness and appropriateness of the process. I will call these two challenges: the Neutrality Problem and the Commitment Problem.
1. The Neutrality Problem is a profound one. Both parties may trust the mediator to be “fair,” but being “fair” in terms of “process” in no way assures fairness in “outcome.” Surely, no one should have a legitimate or appropriate expectation that the “fix is in” respecting the outcome. Beyond that, however, mediation is about process, not fairness in result, and it is possible that a fair process may only serve to legitimize an unjust result. Therein lies a fundamental challenge to the appropriateness of mediation. The “neutrality” of the mediator does not permit the mediator to interfere in an outcome reached by the agreement of autonomous, competent parties, even if the outcome instantiates an injustice born of the inequality of power of the parties. In a “pure” mediation, there is process only, with no substantive influence on the equities of the resolution except that it be agreed to by the parties.
Consider an extreme case: one “battered spouse” in terror of abuse and financial power of the other who feels compelled to make a “deal.” Inequality of power, wealth, legal resources, emotional vulnerability, and security in one’s own physical safety, can vitiate the underlying premise upon which the mediation is founded: the autonomy and competence of both parties. Consider the most extreme case where one spouse confides to the mediator: “My partner says he/she will have me killed if I seek custody.” A mediator would be hard-pressed to continue ethically. A mediated settlement would simply be the embodiment of the inequality of power of the parties. This is not to say, however, that any system, including litigation of the matter, would suffice to equalize the power of the parties. It is simply to note that the Neutrality Problem that inheres in the heart of mediation is singularly ill-equipped to resolve such a dispute using neutral principles. The mediator could, of course, distort principles of “neutrality” and impose a rule saying “provided, of course, that the result is fair in my eyes.” Or, perhaps, a well-intentioned, kind-hearted mediator could say to himself or herself: “The right thing to do is to try to rebalance the imbalance of power since the legal system is unable to do so.” At this point, we can agree that the mediator has left the field of mediation and has become a magistrate or “Good Samaritan” imposing his or her will and vision of justice onto the dispute between the parties. It is no longer a mediation.
I have presented an extreme hypothetical as a stark challenge to the core principle of outcome neutrality. Yet, every mediation, to a greater or lesser degree, partakes of some of the inequality of power and resources between adversaries in most disputes. In fact, in the common case of a personal injury plaintiff versus an insurance company, one of the most persuasive arguments to favor settlement at mediation is this disparity in power and resources. The insurance company can litigate and appeal without being constrained by finances unlike most plaintiffs; the insurance company is a perpetual entity unlike all plaintiffs; there are risks and uncertainties in litigation and no assurance that a verdict obtained (even after lengthy appeal) will net out more favorably than the settlement offered today, after deduction for legal fees and the costs of litigation. In most personal injury tort cases, there is no fee-shifting rule available. The American Rule applies, leaving each party to bear its own litigation expenses and legal fees. The argument that the opponent is Goliath to one’s David is a potent – and valid – one.
Although I have posed the challenge to mediation as a problem of “neutrality,” it might with equal force be described as “The Parity Problem” in resolution of disputes by whatever means. As Cassius said in Shakespeare’s Julius Caesar: “The fault, dear Brutus, lies not in our stars, but in ourselves, that we are underlings.” The fault, we might say, lies not in the neutrality of mediation, but in the disparity in personal power endemic to the human condition, challenging any justice system to produce the just outcome irrespective of relative power. Still, a mediator has less ability to level the playing field as regards disparity of power outside of the room than a judge in the context of litigation.
2. The Commitment Problem. Mediators have varying degrees of informal authority. Their authority may derive from force of personality, professional reputation, past experience with the parties, the financial investment made by the parties in the process, and the hopes placed by each of the parties in the successful resolution of the dispute facing them. But, in the end, it is an informal authority. The mediator, aside from voluntary deference by the parties to the mediator’s experience and reputation, cannot command or control process or outcome. The mediator’s armamentarium is limited to the ability to “sit this one out” and declare his or her services unavailable to the parties in the given dispute or, in extreme cases, to report the parties to the judge for failure to participate in good faith. In short, containment of the parties within the process and commitment to it cannot be mandated by the mediator.
Although in modern practice, mediations are often mandated by the courts as “alternative dispute resolution,” the process is, itself, a cooperative remedy founded upon voluntary, good faith cooperation by the parties. Hence, the commitment problem, which may be stated thus: assuming you can compel the parties to attend, how do you get the parties to commit to participate in reasonable, good faith negotiations? I have already suggested that the financial investment of the parties in the process and their hopes for successful resolution (the same things that give the mediator informal authority) may achieve some measure of containment of the parties to the process.
The chief obstacles to a successful mediation arising under rubric of “lack of commitment” are these: (i) lack of preparation; (ii) lack of authority; (iii) truculence or inadequacies of counsel. A party interested in achieving a mediated settlement can do something to minimize these obstacles.
(i) Lack of preparation on one or both sides can prevent parties from perceiving the risks of their case through a lack of understanding of the evidence that can be brought to bear against it or the deficiencies in supporting evidence. Mediation too early can risk an inadequate exchange of information pre-mediation and, accordingly, an inability to assess risks. Mediation too late, on the other hand, may have involved such a superfluity of litigation expense that only an extreme outcome at trial can lead to any “acceptable” outcome. It is naturally harder for a party to embrace a settlement embodying what is regarded as certain defeat so long as a party holds forth hope for the possibility of success. Even a mediation at the early stages, however, has the virtue of being able to anticipate and avoid the inevitable risks, delay, costs, ill will, and uncertainty of litigation.
(ii) Lack of authority. In recent years, one pernicious trend has been for mediation to become yet one more burden imposed by professional litigants (defendants) upon plaintiffs. In the context of personal injury plaintiffs versus insurance defense counsel and insurance companies, all too often the mediation is seen as a court-ordered requirement to be “checked off” without meaningful participation by insurance adjusters with adequate authority to enter meaningful negotiations. This can be frustrating. Imagine half a day spent in a room waiting for the insurer to make any offer at all, punctuated by offers so low that they could have been rejected out of hand without the necessity of a mediation process. Often, insurance adjusters present at mediations have only limited authority and the best that a mediator can ask for is that upper level insurance personnel with adequate authority are available by telephone.
Local Civil Rule 16 in King County Superior Court addresses this issue directly:
(3) Parties to Be Available.
(A) Presence in Person. The parties shall personally attend all alternative
resolution processes, unless excused, in advance, by the person conducting the
(B) Representative of Insurer. Parties whose defense is provided by a
liability insurance company need not personally attend the settlement conference or
other dispute resolution process, but a representative of the insurer of said parties, if
such a representative is available in King County, shall attend in person with sufficient
authority to bind the insurer to a settlement. If the representative is not available in King
County, the representative shall be available by telephone at the parties’ expense.
(4) Failure to Attend. Failure to attend the dispute resolution procedure in
accordance with paragraphs (A) and (B) above may result in the imposition of terms and
sanctions that the judge may deem appropriate.
Assuring that parties with sufficient authority are present to make decisions is essential and an experienced mediator will make efforts to see that this is the case.
(iii) Truculence or inadequacies of counsel can be fatal to the success of mediation. Here, I must be careful to say that successful mediation to my mind means not only resolution of conflict, but upon such terms as are within the “reasonable range of just outcomes.” There are many ways of being ineffective. Being unprepared, already mentioned, is among them. Counsel whose conduct is bellicose or too fearful of conflict can give poor advice leading to a failed mediation or a mediation with an unjust outcome. All too often, counsel, unable to have the sort of frank conversation with their clients as to the state of the evidence and unwilling to be the bearers of bad news, will leave this vital communication task to the mediator. While better than truculence, this can leave the client virtually unrepresented and vulnerable, leading to less than optimal outcomes.
Lack of preparation, lack of authority, and inadequate counsel can undermine effective commitment to the mediation process and lead to poor results. Knowing this in advance, parties should consider the optimum timing for mediation, be prepared to evaluate the strengths and weaknesses of their case, and ask that all parties conform to the mandates of the Local Civil Rules and have representatives with adequate authority present. As always, discussing mediation with counsel beforehand and understanding the posture of the case and the approaches to be taken can assure that both counsel and client are “on the same page” and improve the prospect for a productive and happy experience.
Mediation, although a cooperative remedy, is now also mandated by the court. Understanding its virtues (empowerment, flexibility) and the challenges that commitment and outcome-neutrality present will help parties better succeed in the pursuit of justice in their particular case