Love: Is Mediation A Sleeping Beauty?

From FOI Lela Love (Cardozo) – dispatches from the Melnick Symposium at Cardozo – Is Mediation a Sleeping Beauty?

On November 2, 2014, at the Cardozo Journal of Conflict Resolution fall symposium, speaker after speaker asked Is Mediation a Sleeping Beauty?It was a taking stock event with luminaries from the field seeing this as a turning point in reviving core elements of mediation or succumbing to the devolution of mediation in the direction of an adversarial litigation-lite process or, at best, a settlement conference. Most thought that mediation was indeed sleeping and not all together beautiful and that action was needed to revive her.

Here are highlights from the speakers:

  • Professor Giuseppe De Palo (ADR Center in Rome, Italy) proposed mandatory mitigated mediation (mandatory mediation with an easy opt-out) as a response to the underuse of mediation throughout the European Union.  Thanks to this process, Italy leads countries in the EU in the use of mediation.
  • Kim Kovach suggested that mediation is in a coma due to its marriage with litigation in court settings, and the resulting mutant child (liti-mediation) is indeed unattractive.
  • Professor Jacqueline Nolan-Haley (Fordham Law School) described these times as a season of light with mediation’s popularity at a high point and also a season of darkness from abuse of process and confusion of the mediator’s role.
  • Professor Robert A. Baruch Bush (Hofstra University School of Law) concluded that mediation had been drawn into an intoxicating problem-solving culture—resulting in many mediators being too focused upon the “drug-like high” of settlement.
  • Professor James Coben didn’t mince words when he said that he believed mediation has turned ugly – another tool for litigators to delay and abuse the judicial system. He also described our current system for selecting mediators as an “aristocracy,” not based on mediator skill but instead on inflated reputations.
  • Professor Josh Stulberg explored whether interest-based bargaining theory, often the mediator’s privileged approach for fostering negotiation, operates to reinforce party inequalities and undermine party self-determination, contrary to the presumptively salient values of the mediation process.
  • Eric Galton blamed commercial mediators for caving in to lawyer demands to eliminate joint sessions, limit party participation, and provide evaluations.
  • Professor Nancy Welsh shifted to the fairy tale of Cinderella, arguing that as courts prioritize case closure and lawyers’ preferences over process quality or the protection of parties’ self-determination, they too often behave like the self-interested and vain stepmother. Maybe the courts can be the Fairy Godmother, though, by granting mediation the markers of legitimacy and thus enabling others to appreciate the process’ inherent beauty.
  • Professor Erez-Navot pointed to “wicked witch” elements in child permanency mediation, including reduced party participation and representatives who are more concerned with their professional relationships with judges and adversaries than the welfare of the parties they represent.
  • Professor Carol Liebman suggested candidates for Prince Charming might be: mandatory mediation (for certain cases), pay for mediators (in situations where other professionals are being paid), and adherence to core mediation values.
  • Tracy Frisch discussed several efforts of the AAA to respond crises, such as Hurricane Sandy and the bankruptcy crisis in Florida.
  • Brad Heckman shared his experience using social media to promote mediation and described the unparalleled access and exposure he found in using outlets such as Twitter and participating in TEDx.
  • Laurel Kaufer struck a positive note, finding beauty in mediation as she described the success of Prison of Peace, a nonprofit organization she co-founded that trains long-term inmates in mediation, life, and peacemaking skills.

The Journal of Conflict Resolution will be publishing a symposium edition in Spring 2015.  Many of the presenters at the symposium will be publishing articles in line with the themes discussed at the symposium.

3 thoughts on “Love: Is Mediation A Sleeping Beauty?”

  1. I agree with Professor James Coben’s concern that mediation has become “another tool for litigators to delay and abuse the judicial system,” and his description of our current system for selecting mediators as an “’aristocracy,’ not based on mediator skill but instead on inflated reputations.” It seems like litigators ultimately figure out a new ways to abuse the system which they are thrust into. However, I see no problem with that, as it is what we are taught to do as law students. We must adapt to the situations we are presented with and as long as those litigators do not cross any ethical lines then it seems to be an intelligent “abuse” of the mediation arena.

  2. As a third year law student taking a class in Alternative Dispute Resolution, the above post is somewhat disheartening, yet not surprising. I have also had some experience working at my school’s mediation clinic, so I have seen first hand some of the benefits of mediation and I believe that most of these panelists would agree that when utilized properly, mediation can be a powerful tool. However, I say that it is not surprising that many of the panelists had a negative view of mediation because there is no uniform type of mediation or universal guidelines/requirements for mediators to follow. Because of this, I believe Professor James Coben’s statements that mediation has “turned ugly.” Without any uniform rules guiding all mediators, including rules regarding the selection of mediators, this will continue to be a problem. In this way, the ability for mediations to be tailored to specific situations acts as a double-edged sword because it can both help resolve disputes and become a hindrance to resolving disputes that promotes both injustice and unfairness if the process is abused.

    I liked Professor Carol Liebman’s suggestions to help fix this problem, especially the suggestion that there needs to be better adherence to core mediation values. However, until an organization actually mandates this adherence, abuses will still prevail similar to those that Eric Galton brought up with commercial mediators, as they will still cave in to lawyer demands. I think the best way to combat the concerns outlined by the panelists in the post above is to find a way to regulate the mediation process and mediators, as well as have better records regarding the number of times mediators have mediated with different parties, which will hopefully quell some mediator bias concerns.

    Overall, I believe that the panelists’ concerns listed in the post above are very real and need to be dealt with before society completely loses faith in the process of mediation, which can be a very useful process in dispute resolution. I share the concerns that Kim Kovach had that mediation is becoming liti-mediation and the concerns that Professor Jacqueline Nolan-Haley had that these problems stem from confusion about the mediator’s role. That being said, I still believe that a more universal, possibly court, or some other organization, mandated form of mediation that clearly defines the process (from selecting the mediator to the actual mediation) and the mediator’s role could help clear confusion and reemphasize the proper roles of the mediators.

  3. This is a disturbing issue that the ADR field must face. While we as students of law were taught more about the adversarial aspect of law, the ADR field is much more vital in the real world. With the issues the esteemed talked brought up seemed to have a single point: mediation is being chipped away bit by bit. This vital process needs to be strengthened by putting the power back with the parties and not shying away from the challenges ahead.

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