In an exchange of letters published in the most recent issue of the New York Review of Books, commenting on an article last month about reforming the plea bargaining process by Federal District Judge Jed Rakoff in New York, Judge Rakoff defends his proposal to get judges more involved in plea bargaining by comparing it to the way mediation is offered to civil litigants in the same court. Here is how he describes mediation as he sees it being practiced:
[C]ivil litigants regularly meet with magistrate judges or court-appointed mediators shortly after a case is filed and, in separate, confidential presentations to the mediator, describe their respective evidence and positions. The mediator then meets again with the parties separately and, based on what the mediator now knows about the underlying factual and legal positions, points out to the respective parties the pitfalls they each face.
As every mediator will tell you, it is not that the parties have been wholly unaware of these pitfalls in the past that makes mediation effective, but rather that the parties have never taken these shortcomings seriously because they were never previously described with the forcefulness and objectivity that a mediator brings. Duly shaken, the parties are now open to a settlement proposal from the mediator that they would have previously rejected out of hand.
I’m sure this is the way mediation is often conducted in federal court, particularly when judges preside as mediators. But it’s not the way all mediators practice. Some purists would probably even argue that this style of mediation–which generally takes the form of a back and forth discussion with each side predominantly in caucus format, in which the discussion primarily revolves around the parties’ “respective evidence and positions,” in which lawyers tend to dominate the conversation, and which concludes with “a settlement proposal from the mediator”–is not mediation at all. It’s a settlement conference. It achieves its intended result by presenting the parties with a neutral assessment of how the case might come out at trial. Its content seems to be based almost entirely on consideration of legal rules and rights, rather than any attempt to discover the parties’ needs and interests. And not “every mediator” will tell you that cases are settled in mediation as a result of the parties being “duly shaken” by the mediator’s power to describe the issues forcefully and objectively. Often cases are settled in mediation because it’s the first time the parties ever had a chance to listen to the other side, and because they now more fully understand their perspective.
Anyone who’s ever read my blog before, or perused the literature on mediation, knows that a discussion limited to the strengths and weaknesses of each side’s respective legal and factual positions at trial merely scratches the surface of what can be accomplished in mediation. I sometimes remind parties in mediation that they need not be concerned at all with what might happen to the case in some alternate universe in which it goes to trial. After all, the case is most likely not going to trial, and therefore it can be resolved based on whatever concerns are important to the parties. At times in his earlier article, Judge Rakoff seems to recognize this reality, noting that hardly any criminal cases go to trial, and nearly all are resolved by plea bargaining. That would seem to open the door to consideration of a range of factors that are not even relevant at trial, yet might prove a more satisfying form of resolution for the parties.
In the mediation of civil disputes, a lot of mediators reach far beyond the narrow focus on evidence and positions that Judge Rakoff is talking about. Parties have a chance to air their real grievances, for example, regardless of whether they might constitute a cognizable legal claim. They have a chance to uncover their real motivations, which might take the form of betrayal, jealousy, anger, resentment, disrespect, misunderstanding, or just plain inconsiderateness. And they have the chance to design solutions to the conflict that are simply beyond the reach and power of a court to impose.
It could be that because Judge Rakoff expresses too limited a view of the possibilities of civil mediation, he is also ignoring the possibilities of more meaningful reform of the criminal justice system. In the resolution of criminal cases, is the most promising road to reform really getting judges more involved in plea bargaining? Instead, we might try to incorporate some of the values and methods of the restorative justice movement. A full discussion of that topic is beyond my expertise, since I operate only in the civil justice system. I do know, however, that that model operates more closely to the ideal sort of civil mediation described above, than to the limited idea of civil mediation contemplated by Judge Rakoff. To bring the process of plea bargaining closer to that ideal, the parties to a criminal case should also be permitted to consider a range of interests beyond those meted out by criminal trials. The accused and the victim may, for example, be able to obtain restitution, forgiveness and understanding, rather than relying solely on punishment. Introduction of those concerns might be what is needed to bring plea bargaining out of the shadows and into the realm of respectability, and even enlightenment.
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