Washington University Law Quarterly
When mediation was first introduced to the courts, the process was hailed as “alternative.” Mediation gave disputants the opportunity to discuss and resolve their dispute themselves; the role of the third party was to facilitate the disputants’ negotiations, not to dictate the outcome; and because the disputants were able to focus on their underlying interests in mediation, the process could result in creative, customized solutions. The picture of mediation is changing, however, as the process settles into its role as a tool for the resolution of personal injury, contract, and other nonfamily cases on the courts’ civil dockets. Attorneys dominate the mediation sessions, while their clients play no or minimal roles. Mediators are selected for their ability to value cases and to assess each side’s strengths and weaknesses. Mediators also increasingly bypass or marginalize the joint session in order to move quickly to caucuses. Moreover, a surprisingly small percentage of the settlements produced by these mediation sessions are creative or even nonmonetary. Mediation’s shift strongly suggests that the bargaining paradigm that dominates and delivers settlements in most civil cases is capturing the mediation process. Significant theory and research in negotiation and decision making support the move toward attorney dominance, evaluative intervention, the marginalization or abandonment of joint sessions and traditional monetary settlements. If mediation is viewed simply as a means to enhance the deal-making that occurs in the negotiated settlement of most civil cases, the process’ evolution appears to represent a successful adaptation to the realities of our civil system of “litigotiation.”
Many commentators and mediators, however, argue that mediation is a process that goes beyond assisting current approaches to bargaining and decision making. These commentators urge that the disputants want and deserve something more. There is disagreement, however, regarding the identity of the additional benefit that mediation can offer to disputants. This Article argues that particularly within the context of the courts, mediation should be expected to deliver to disputants an experience of justice, more commonly referred to as procedural justice. Although some commentators have suggested that our courts are moving toward a transactional model, it is not the metaphor of the marketplace that provides the courts with their social and political legitimacy. Research in the field of procedural justice clearly reveals that citizens want the courts to resolve their disputes in a manner that feels like justice is being done. This yearning for the experience of justice is so profound that disputants’ perceptions regarding procedural justice affect their perceptions of the distributive justice that is delivered by a dispute resolution process, their compliance with the outcome of the dispute resolution process, and their perception of the legitimacy of the institution providing or sponsoring the process. Ultimately, insuring that mediation comes within a procedural justice paradigm serves some of the courts’ most important goals - delivering justice, delivering resolution, and fostering respect for the important public institution of the judiciary.
Knowledge of procedural justice research can enable an experience of justice to co-exist with deal-making in court-connected mediation. This research indicates clearly that disputants want and need the opportunity to tell their story and control the telling of that story; disputants want and need to feel that the mediator has considered their story and is trying to be fair; and disputants want and need to feel that they have been treated with dignity and respect. This Article applies these research findings, as well as the theories that explain the importance of these process characteristics, in order to conclude that some of the changes that streamline bargaining - the dominant participation of disputants’ attorneys and the reduced role of the disputants, the eventual use of evaluative interventions, and the prevalence of monetary (noncreative) outcomes - are not necessarily inconsistent with procedural justice considerations. Indeed, if used appropriately, some of these changes may even have the potential to enhance disputants’ perceptions of procedural justice. This Article thus argues that deal-making and procedural justice can co-exist and even complement each other. The analysis in this Article also shows, however, that other changes designed to ease legal negotiation - the de facto exclusion of disputants from mediation sessions, the abandonment or marginalization of initial joint sessions, and the early and aggressive use of legally evaluative interventions - are inconsistent with procedural justice. These particular adaptations raise serious concerns regarding the ability of court-connected mediation to deliver an experience of justice along with a settlement.
Nancy A. Welsh,
Making Deals in Court-Connected Mediation: What's Justice Got to Do With It?,
Available at: https://scholarship.law.tamu.edu/facscholar/945