The Mediator Network group on LinkedIn has had a debate recently over whether courts should call their ADR programs “mandatory mediation.” The theory is that mediation can never be mandatory, but must always be voluntary.
The comments in this debate have generally supported the position that while courts can mandate attendance at mediation, they cannot dictate the outcome of the mediation. The only aspect that is mandated is that the parties show up. It is properly called “mandatory mediation,” but not “mandatory settlement.”
I have participated in court-ordered mediations for over twenty years—as an attorney, as a corporate representative, and as a mediator. I agree with the comments on LinkedIn. These sessions may be “mandatory,” in that the judge has ordered the parties to sit down with a mediator, but the outcome of the sessions has never been predictable, nor have the cases all resulted in settlements. Therefore, I have always thought the programs properly called “mediation.”
I participate now as a mediator in a state court program in which the judge often tells the parties to meet with a mediator. I also mediate cases on a federal court docket, where the judge mandates participation in the mediation program, and even imposes a requirement that the parties “mediate in good faith.”
Only once in my years as a mediator have the parties ever refused to continue after I explained how the mediation process works. In that situation, one party was willing to participate, but the other was not, so we adjourned. This was a case in state court; in federal court, the “good faith” requirement would probably have forced me to keep hostile parties in the process for a couple of hours to explore whether there was any possibility of movement in their positions.
Other than this one case, the parties I have worked with have signed the “agreement to mediate” and proceeded to discuss their case with me. I certainly have not settled all the cases I have mediated, but the parties have at least been willing to discuss their positions.
In some situations, the parties have had unreasonable expectations of what they could achieve by continuing the litigation, so they didn’t have reasonable settlement positions. In other cases, their emotions were too involved, and in those cases, too, their settlement demands were unreasonable. (A pound of flesh is seldom available through the judicial process.)
As a mediator, I believe it is always advisable to explore settlement opportunities. For that reason, I support court-ordered mediation in almost every situation. Only where the balance of power between the parties is so uneven that the less empowered party might be overwhelmed or bullied do I think mediation is a bad idea. But where both parties are competent and empowered, or where both are adequately represented by counsel, then mediation can give the parties more control over the outcome of their dispute.
Is mandatory mediation appropriate in your opinion?