Charting a Middle Course for Court-Connected Mediation

Abstract

This article describes two theoretical perspectives about court-connected mediation and sketches an approach to combine the benefits and reduce the risks of both perspectives. One perspective focuses on the fundamental principle that parties should make decisions in mediation voluntarily, without inappropriate pressure. The other perspective, which I call a “liti-mediation perspective,” is grounded in a concern that without court orders, some parties lose valuable opportunities to mediate, and courts spend their limited resources on cases that should appropriately be resolved in mediation.

For courts that want to operate a mandatory mediation program, this article outlines some policies that should motivate parties and lawyers to gain the benefits of mediation while protecting parties’ rights to make their own decisions. This intermediate approach is intended to make mediation attractive so that parties and lawyers believe that it satisfies their interests, reducing the need for courts to regulate the process. It outlines possible approaches for educating parties and other stakeholders about mediation, setting the timing of mediation, protecting confidentiality, and promoting productive participation in mediation.

This article argues that the key to producing optimal results is using dispute system design techniques that engage all the stakeholder groups to develop policies that advance the interests of all stakeholders in mediation, with a priority on satisfying parties’ interests. It relies on principles expressed in the National Standards for Court-Connected Mediation Programs and the ABA Section of Dispute Resolution’s Resolution on Good Faith Requirements for Mediators and Mediation Advocates in Court-Mandated Mediation Programs.

Keywords: mediation, court-connected mediation, mandatory mediation, voluntary, self-determination, timing, confidentiality, good faith, regulation, dispute system design, stakeholders, liti-mediation