Litigation–Style Mediation Has Got to Go

Institute for the Study of Conflict Transformation by Dan Simon

It’s entirely understandable that retired judges and experienced litigators would want to work as mediators. In their work, they’ve seen how expensive, exhausting and frustrating lawsuits were for litigants. When they’ve finished serving as judges or litigators, they are motivated to do something for litigants that feels more helpful. Unfortunately, their experience makes them especially unqualified to provide clients with a different sort of process.

The organizations that provide these sorts of mediators reveal in their advertising the sort of process they’ll provide. Here’s a line from one of these organizations’ website:

“[Our] neutrals are on the case long before the day of mediation and don’t consider their job done until settlement is achieved. They are dedicated to the entire mediation process, from reading the written statements to final execution of the settlement agreement.”

Let’s look at what these two sentences reveal about the advertised process:

“[F]rom reading the written statements”. In other words, these mediators ask the lawyers to provide to the mediator written statements about the case before the mediation. These mediators must believe that it is helpful for them to understand the legal arguments each side is making. If it is helpful for the mediator to understand the legal arguments, it must be that the mediator intends to evaluate those arguments, look for the weaknesses in them, and use those weaknesses to persuade the parties to compromise. So the mediation process, according to these mediators, is primarily an effort to persuade parties that their prospects in court are worse than they believe they are. The mediators plan to do this for all cases. So they’re not actually evaluating the real comparative strengths of the cases – how could they really do that, given all the uncertainty, anyway? – they are looking only for weaknesses that they can use to scare the parties into a compromise.

That intention, to scare parties into a compromise, is exactly the same strategy lawyers on both sides have been using from the start of the litigation. Litigation is a constant attempt to persuade the opposing side with a carrot and a stick: “Accept this deal now, or we will force you to do something worse later.” A mediation process where a legal-expert-mediator uses their perceived credibility to scare both sides thus provides the same sort of pressure that has already been present. The only difference is that parties (not the lawyers, who fully understand that the mediator is leaning on both sides) may imagine that the mediator is somehow more objective than the opposing lawyers. So any advantage of this sort of mediator arises only from the parties’ misunderstanding of what the mediator is up to.

“[T]o final execution of the settlement agreement”. This phrase further confirms that the mediator’s agenda is to make a settlement happen. Notice all the things that this phrase does not say “until the parties feel they have all the information they need to make the best possible choices” or “until the parties have had the opportunity to address the conflict in the way that is most meaningful to them” or “until the parties have had every opportunity to ask the other parties questions and understand their perspective as well as they want to.” There is nothing in this advertisement about providing the things that people in conflict most need and want. They do not promise a sense of procedural justice, and they say nothing about parties’ self-determination, but imply that parties’ self determination really isn’t a priority for these mediators. Further, there is no evidence to suggest that this sort of process is more likely to lead to settlement than a more empowering process would be.

The evidence that this sort of approach does harm and does not increase settlement rates is overwhelming. The real danger of these efforts is that they confuse the public. People experience mediation, when it’s done this way, as a process that undermines rather than supports their self-determination.

                       

Dan Simon

Dan is a leader in the field of transformative mediation. He is the author of the chapter on divorce mediation in the Institute for the Study of Conflict Transformation's ("ISCT") TRANSFORMATIVE MEDIATION SOURCEBOOK. He is a Past Chair of the Minnesota State Bar Association's Alternative Dispute Resolution Section. He served… MORE >