Is That All There Is? 'The Problem' in Court-Oriented Mediation

Abstract

The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues predominate; other potential issues - personal, psychological, relational, communitarian - disappear.

This approach to mediation may be satisfactory to many parties and appropriate for courts that must engage in the mass processing of cases. But at least some individual one-shot players, who suddenly must seek redress or defend themselves, need something more. This Article describes a case involving such parties, dealing with their son's heart-breaking disabilities and the narrow problem definition of their two mediations. We consider why the problem definition of their mediations mattered to these parties and how the mediation sessions could have been different. We then propose a systematic method that would enable the customization of mediation sessions, along with three initiatives that courts and private dispute resolution provides could adopt. These initiatives would provide parties with the opportunity to choose whether they wish to engage in a customized process. We also explore why courts should take the lead in experimenting with the breadth of the problems to be resolved by non-family civil court-oriented mediation.