Trashing, Bashing, and Hashing It Out: Is this the End of 'Good Mediation?'

Abstract

The subtitle to this Article was suggested by the remarks of Albie Davis' at a workshop on Alternative Dispute Resolution (ADR) in the Judicial Environment held in Tallahassee, Florida, in February, 1988. The workshop was sponsored by the National Institute of Dispute Resolution and the Florida Dispute Resolution Center. It brought together national experts and Florida ADR and justice system professionals to discuss both the ramifications of 1987 Florida legislation and subsequently promulgated supreme court rules. The legislation and rules gave Florida trial judges wide-ranging discretion to mandate mediation or arbitration for contested civil claims. Reacting in particular to a rule that would require mediators of nonfamily civil claims in circuit court to be either experienced lawyers or retired judges, Davis proclaimed this requirement "the end of good mediation."

The ire expressed by Davis and certain other workshop participants over the requirement that mediators of larger civil cases be legal professionals should surprise no one. Most professional mediators agree that interpersonal qualities and performance, rather than professional or academic credentials, are the principal predictors of "good mediation." Indeed, the "Florida model" has been subjected to considerable criticism in national mediation circles. Although the Florida rules were recently revised to permit a limited freedom of mediator choice for disputants ordered to mediation, the basic requirement that certified circuit court mediators be either retired judges or experienced lawyers remains intact. Indeed, the emphasis on professional credentials, coupled with the increasing willingness of Florida judges to order cases to mediation and require the parties to assume the costs, has spawned in Florida's circuit courts a mediation industry populated by experienced trial lawyers and retired judges. As of September 17, 1990, 649 people had completed a forty-hour training program certified by the Florida Supreme Court. During 1989, 6,567 nondivorce civil cases were mediated in the eight circuit civil mediation programs that compile caseload statistics."

Professor Carrie Menkel-Meadow enunciates a different set of concerns about such developments. Analyzing and critiquing the national trend toward infusion of ADR processes into judicial systems, Menkel-Meadow is concerned that mandatory ADR programs "force people to use other processes of dispute resolution that may be subject to distortion within the adversary culture in which they are placed."

This Article attempts a very preliminary assessment of these concerns in the context of the Florida experience. Part I traces the history and current status of court sponsored mediation programs in Florida. Through interviews with mediators and lawyers participating in circuit court mediations, circuit mediation practices, styles, and strategies are assessed in Part II. Part III concludes that although circuit mediation practices reflect a fairly wide range of traditional mediator styles, certain institutional concerns and related practices threaten to transform mediation from a consensual to a coercive process.

Keywords: Mediation