From the Blog of Phyllis G. Pollack.
On July 17, 2010, the Southern California Mediation Association (“SCMA”) held its annual Townhall. As president, I had the honor of choosing the topic for discussion. I chose “rights v. resolution”, based on a presentation given by the Honorable Wayne D. Brazil, United States Magistrate Judge in the Northern District of California at the American Bar Association (“ABA”) Dispute Resolution Section’s Conference in New York City in April 2009.
This notion juxtaposes the rights given to litigants in the civil justice system, especially the Seventh Amendment right to a jury trial with the use of the alternative dispute resolution (“ADR”) process to resolve a dispute. In short, is the mediation community causing litigants to forego their “rights” in court by encouraging (manipulating?) them to “resolve” their disputes at mediation?
Through three different panel discussions, our Townhall focused on this issue from the perspective of the judiciary, the plaintiffs and defense bar and the ADR professional and trainers. Needless to say, the discussion was quite spirited, provoking much comment and thought.
I turn to this topic of “rights v. resolution” because last week, I opened the latest issue of the ABA’s Dispute Resolution Magazine (Vol. 16, No. 4, Summer 2010) to see that Judge Brazil once again addresses this notion in his article, “Rights v. Resolution in Mediation; Our Responsibility To Debate The Reach of our Responsibility.”
According to Judge Brazil (as well as the panelists at our Townhall), this issue – rights v. resolution –
“. . . has taken on considerable added significance with the apparently increasing marginalization of our courts [and] . . .[t]he growing disproportion between transaction costs and case value…. [As a result], . . . many cases of modest economic value and many litigants of limited means have been effectively priced out of the court system. So, more and more people must look to something other than the adjudicatory process to address their problems. ” (Id. at 9).
Indeed, Judge Brazil notes that only the “close ones” i.e. “the ones in which rights are most difficult to determine” are going to trial and that more and more cases in federal court at both the trial and appellate levels are being handled by the actual party, without the assistance of a lawyer. (Id. at 9, 10).
So, given that more and more mediations are occurring, Judge Brazil queries what is the role or responsibility of the neutral in insuring that this “rights v. resolution” tension does not tip more one way than the other?: that is, that outcomes do not overtake legal entitlements? (Id. at 10). Judge Brazil queries what is “the extent of our responsibility for the alignment of outcomes with legal entitlements?” (Id. at 10).
How, can I, as a neutral, insure that this balance is maintained? Especially, when the parties come to mediation unprepared or not knowing all of the facts, and/or not knowing all of evidence. Often times, they have not conducted any discovery so as to contain costs, hoping that an early resolution is available. Or, they come to mediation with the expectation that I, as a neutral, will provide them with guidance on issues that they know more about than I do (even though, it is their case, not mine.) Or, it is a matter in which they have not divulged everything to me and/or opposing counsel and/or is one in which they are attempting to manipulate me and/or the other parties. Or, the matter is one in which one party has much more leverage than the other and thus the situation makes one party much more vulnerable than the other. Or, it is a matter in which all parties and counsel, except for the plaintiff, are repeat or institutional players going through the motions of a mediation, knowing pretty much what the outcome will be, before the mediation even starts. (Id. at 11). Only the actual plaintiff is a “one-shot” player with no inkling that the mediation and its processes are pretty much scripted out already. In all of these situations, what is my responsibility to insure rights do not overtake resolution or vice versa? (Id. at 10-11).
And then, Judge Brazil points out “the indeterminacy of civil litigation. (Id. at 11). Does the fact that litigation seems to take “forever” to get resolved provide a convenient excuse to end it now at mediation? This notion was especially raised at our Townhall given the fiscal crisis of California’s state courts causing courtrooms to be shuttered, and employees to be either laid off or furloughed. How important is expediency over constitutional rights? Should it even be? (Id. at 12.)
As you might surmise, Judge Brazil concludes that the responsibility of a neutral to insure that resolutions do not overtake rights must be viewed on a mediation to mediation basis. Even the same neutral must take a different approach to this issue from one mediation to the next, depending on the parties, the subject matter and the type of dispute. Is it a civil case? A family law matter? A class action? Are the parties sophisticated? Institutional or repeat players? Or, the opposite? Is the ADR process private? Or court-ordered? Is it mediation? Arbitration? Early Neutral evaluation? Et cetera. All of these issues and more must be considered by the neutral in her attempt to insure that the proper tension between rights and resolution is maintained. (Id.)
In sum, there seems to be a lot more to being a mediator than just mediating. While I am very much interested in having parties settle their cases, I must be mindful that settlement is not the end all, be all, or the sole and only goal in mediation; resolution cannot be achieved at the expense of litigants’ “rights” under our system of jurisprudence. And, as hard as I try, I am not always sure where the line exists between these two notions in any given mediation. It is a difficult task to find this balance and insure that it is maintained but I will keep looking. . .!
. . .Just something to think about.