Courts Should Make Mediations Good Samaritans Not Frankensteins

Abstract

Using a recent California appellate decision as a jumping off point, this short article identifies problems with mandatory mediation. It recommends that courts use good dispute system design procedures to help fulfill the goals of mediation as Good Samaritans and to reduce risks of creating Frankensteins – mediation that produces injustices.

The discussion begins by analyzing Breslin v. Breslin, a recent 2-1 decision by the California Court of Appeal. In this probate case, some potential beneficiaries failed to attend mandated mediation. The parties who attended the mediation reached an agreement and the appellate court upheld a decision enforcing the agreement, thus causing the non-participating parties to forfeit their rights. The majority wrote, “the mediation ordered by the probate court, like the trial in Smith, was an essential part of the probate proceedings.” This article explains how litigation and mediation are fundamentally different and thus why the Court’s perspective takes dispute resolution down the wrong road.

This article argues that courts should use dispute system design methods to review their mediation policies so that parties generally feel that mediation is inviting, non-coercive, and not a threat to their legal rights. Courts ordering parties to attend mediation should protect their rights to a distinct, voluntary negotiation process. Courts may better achieve their goals by using policies instead of or in addition to mandatory mediation.

Keywords: mandatory mediation, coercion, dispute system design, policy goal