Neutral Corner: The mediation process: 30 years later

Although mediation has been an integral part of the civil justice system for more than 30 years, there was not at its inception, nor is there today, a commonly accepted definition or agreement as to what constitutes the “process” of mediation. As a result, left to individual states and — in reality — to individual mediators and lawyers, to determine on a case-by-case basis how mediations are conducted, it was inevitable that the process would change, shift and vary. Commentators and stake holders observing the current mediation landscape have expressed multiple, diverse and at times contradictory opinions on how mediation practice should be modified or adjusted. It is submitted that an examination of the efficacy of any mediation process should be grounded in an understanding of the rationale originally stated for mediation and the manner in which the specifics of its structure, format and components evolved.

Although conventional memory has it that mediation was introduced into the civil justice system because of the increasing number and length of trials, the reality is more layered. The ignition for the ADR movement is generally considered to be the 1976 Pound Conference and more specifically the paper presented by professor Frank E. A. Sander of Harvard Law School, proposing a concept of a “multi-door courthouse” with various alternatives to traditional trials. Professor Sander’s stated goal was to promote methods to combat the predicted explosion in the number of federal appellate cases. In January of 1982, Chief Justice Warren E. Burger addressed the midyear meeting of the ABA in a report entitled “Isn’t There a Better Way?” which urged the bar to continue to explore alternative dispute resolution processes and suggested a focus on arbitration.

Indiana’s examination of ADR was sparked by initiatives of the Indiana State Bar Association. The then-president of the ISBA, Ted Lewis, wrote an article in February 1985 in “Res Gestae” entitled: “ADR — Has its Time Come?” and a committee was established to explore proposals for ADR, resulting in the Nov. 7, 1991, adoption by the Indiana Supreme Court of the ADR Rules, which went into effect on Jan. 1, 1992.

Although the increase in the number of civil trials during the 1970s and 1980s is often cited as the major driver of the ADR initiatives, the reality is that, although the number of filings in state and federal courts increased during this period of time, the absolute number of trials dropped significantly, with the largest single period of decrease occurring from 1988 to 1992: the precise period of the greatest activity in the ADR movement (Galanter. “The Vanishing Trial,” 1 J.Emp.Leg.Stud.459 (2004)). The historical data not only shows that ADR initiatives were not required to reduce the number of trials, but studies also demonstrate that the majority of the civil disputes filed during this period of time were resolved by settlement. (Galanter & Cahill, “Most Cases Settle: Judicial Promotion and Regulation of Settlements”, 46 Stan.L. Rev. 1301 (1994)).

If the number of cases being tried was decreasing and if the majority of those cases not tried were already being resolved by settlement, what can be said to have been the core purpose of the annexation of mediation into the civil process?

A ‘better way’ to settle litigated disputes

Chief Justice Burger, in his 1982 report to the ABA, articulated the problem to be addressed by ADR as follows: “Even when an acceptable result is finally achieved in a civil case, that result is often drained of much of its value because of the time lapse, the expense, and the emotional stress inescapable in the litigation process.”

The reality in the late 1970’s and early 1980’s was that although cases were settling, too often it was at the last minute, “on the courthouse steps.” The drafters of the Uniform Mediation Act (which included Professor Sander) echoed this core concern, stating in the prefatory note: “Mediation fosters the early resolution of disputes. Increased use of mediation also diminishes the unnecessary expenditure of personal and institutional resources for conflict resolution and promotes a more civil society.” An examination of the empirical record supports the conclusion that mediation was inserted into the litigation process to settle matters earlier in the process, to save money and time, to promote interest-based solutions with an emphasis on informed self-determination.

The resulting mediation process

At the time of the adoption of the ADR and mediation court rules, there was not a pre-existing “off the shelf” model of a process to mediate litigated disputes. Unlike the Rules of Civil Procedure, which provide specific procedures and time tables, Indiana ADR Rule 2 simply states mediation to be “a process in which a neutral third person acts to encourage and assist in the resolution of a dispute.” It was left to the individual jurisdictions, to rules committees, continuing legal education commissions and to the bench and bar generally to formulate and introduce the elements and format of the mediation “process.” Although variations and differences in the process of mediation emerged in the various jurisdictions, in general the mediation process for litigated disputes was designed to replicate the dynamics and factors of the general litigation process which had for decades generated settlements in the vast majority of filed cases, albeit too often after the expenditure of great time and expense and, just as often, under pressure and circumstances negating informed self-determination.

Although any precise or empirically provable list of factors or dynamics of the litigation process contributing to the settlement of most cases is not possible, observation indicates that the following contributing factors existed:

• The formality of the civil justice system.
• The requirement for specific statements of claims and legal positions.
• The continuing and formalized exchange of information.
• The exposure to effective professional advocacy of respective positions.
• The involvement of a neutral third party for guidance, rulings and evaluation.
• The simple passage of time.
• The continual exposure to and analysis of the risks and benefits of settlement vs. trial.

It is submitted that an effective mediation process will be designed to replicate these litigation factors. Importantly, an examination of the four ADR methods governed by the Indiana ADR Rules, mediation, non-binding arbitration, mini-hearings and summary jury trials, demonstrates that each method includes, in varying degrees, aspects of evaluation, facilitation, conciliation, fact finding and adjudication. An effective mediation will be conducted in a manner to combine and blend all of these ADR concepts, resulting in a process which is part pure mediation, part mini-hearing, part neutral evaluation, part summary jury trial – in fact, an embodiment of Professor Sander’s multi-door courthouse.

A mediation process blending and incorporating these various factors will reflect and replicate the dynamics of the litigation process that invariably resulted in settlement and will hopefully do so with less expenditure of time and money and with the important additional factor of informed self-determination.•

• John R. Van Winkle, of Van Winkle Baten Dispute Resolution, was a participant in the founding of and was the second chair of the American Bar Association’s section of dispute resolution. Opinions expressed are those of the author.