Van Winkle: Mediation: Sidetracked, and how to get back on track

“At the end of the 20th century in the United States, the litigation system was broken, or at least severely bent. Bowed under its own weight, it came to resemble a long and expensive train ride — a ride that seldom ended where the souls astride really wanted to go. It was a system that may have created — or perpetuated — as many disputes as it was designed to resolve, may have permanently severed as many relationships as it was hoped it could reconcile. When money was the cause of the original problem, the system often added to the financial woes. When time was of the essence, delay was the norm. When civility and compromise were most needed, rancor and inflexibility prevailed. When communication was the obvious and most efficient path to resolution, that path was blocked by systemic and procedural realities.

“The dispute arose. A party was angry. A ticket was purchased to get on this litigation train. The clients boarded when the lawsuit was filed, and immediately they became just passengers, losing control over the process. The litigation was remedy-specific; it was headed to a predetermined point. The engineer chose the track and once the train started rolling, the passengers’ opportunities to get off were very limited. Absent jumping, they had to wait until the train either reached the end station or stopped at the stations along the same track. Until then, clients, although politely nodded to now and then, were more or less expected to stay in their seats and out of the way.” (“Mediation: A Path Back For the Lost Lawyer,” American Bar Association, 2nd. ed. p.2., (2001, 2005).)

Mediation was inserted in the civil litigation system in the early 1990s in the hope that the process could address and alleviate some of the dynamics creating this long and expensive train ride. The promise of mediation was that it would provide an opportunity for litigants — and their lawyers — to disembark, pause, get off the train and find a different space, a more holistic place, for a different type of conversation.

A core function of this interaction was to allow the parties to identify issues, reduce misunderstandings, clarify positions, explore areas of compromise and points of agreement, and do so in an informal and nonadversarial setting.

Of note, lawyers and their professional associations were the initiating force for mediation of litigated matters. Lawyers cajoled, argued and advocated for the use of mediation and had to overcome serious skepticism and reservations before the process was accepted and adopted. And from the outset, a core principal of mediation was that lawyers for the litigants would manage, regulate and fully participate in the process, getting off the train with their clients and moving to a newly created space for a different form of problem-solving.

Although the resolution of disputes was a central goal for mediation, it was not the only goal. Indeed, the vast majority of litigated matters in the United States, before mediation was instituted, were settled before trial. But as the late Jerome J. Shestack stated, this “missed the point.” Mr. Shestack was a giant in the legal profession, the leader of a major law firm, president of the American Bar Association, a human rights advocate and poet. Acknowledging most litigated cases settled before mediation, he wrote: “Mediation is much more than a means for arriving at settlement. In terms of the best elements of lawyering, mediation offers a means to further discourse that is fair, open, solution-minded and rational. Properly conducted, the mediation process is one in which there is transparency over secrecy and passion tempered by perspective, good faith over guile, and accommodating seeking, rather than ‘one-sided victory.’” (Shestack, “Introduction. A Volume Paving a Path Forward,” American Bar Association, 2nd. ed. p. vii, (2001, 2005)).”

Commentators, academics and dispute resolution professionals expressed concern when mediation was being considered for inclusion in the litigation process. The concern was that including the process in the inherently adversarial trial system would result in the process being co-opted, becoming just another step in litigation and losing core process dynamics and tenets.

Sidetracked

It is axiomatic that for mediation to meet its promise, for the process to provide the setting for mediators and lawyers to assist parties in finding mutually acceptable, interest-based solutions to complex disputes, those parties must be present — present in person. Not only do ADR rules in most jurisdictions mandate the presence of parties, but the goal of uncovering interests, creating and discussing detailed and nuanced decision trees, and brainstorming potential options and alternatives, in most cases, require face-to-face, in-person interaction.

The requirement for in-person participation was never absolute, of course, and long before COVID-19 affected the process, mediations were successfully conducted in some cases with some parties attending remotely. The current reality, however, is that even though COVID-19 restrictions have been lifted or relaxed, remote participation of parties has continued and is too often now the default position.

The trend toward remote participation as the rule instead of the exception has the potential to result in a degradation of the mediation process generally. Unless checked, the settlement process may revert to the premediation practice and consist of back and forth emails and conversations between the lawyers, albeit condensed into one session with the involvement of a neutral and with the parties being “available by phone” or attending remotely “as needed.”

The experience of the last three years has demonstrated that while remote mediations might work to uncover preexisting settlement evaluations, personal attendance and face-to-face interaction is often required for the heavy lifting required of mediators and lawyers in assisting the parties in identifying underlying interests, conducting robust risk analysis, and finding alternatives to the remedy-specific train ride available in litigation-alternatives that may better meet the interest of both parties.

For the mediation process, as conceived and implemented by the practicing bar some 30 years ago, to continue to meet its promise, the current generation of lawyers may have to cajole, argue and advocate for meaningful party participation in the process.•

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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.