Marquette Law Review
Obviously, there is much to commend in court-connected mediation and what it offers to people caught up in disputes. With the help of mediators, parties may find it more feasible to reflect on their legal and extra-legal needs, prioritize among these needs, engage in open and thoughtful conversation, develop integrative solutions, and even consider the mediators' dispassionate feedback regarding positions or expectations. Proponents of court-connected mediation can also point to a multitude of accomplishments. For example, and most strikingly, many cases settle in mediation.' For the vast majority of those cases, litigants express satisfaction with the process and indicate that they had the opportunity to express themselves, that the other parties heard them, that they had input into the outcome, and that they view the process as fair.2 Additionally, parties rarely seek to undo the settlements reached in mediation, though this sometimes occurs. Parties generally view mediation as being as satisfactory or fair as trial,' and sometimes even more so.' Some research indicates that mediation saves time and costs for both courts and parties.' Occasionally, mediation even achieves communication and outcomes that would be unlikely in other court-connected procedures.! This catalogue of achievements clearly affirms the value of mediation.
For well over a decade, however, other evidence has triggered concerns that mediation has strayed from its core mission as a mechanism for the meaningful and voluntary resolution of disputes' and that it has become entangled in the contentious game playing and covert manipulation that can occur in litigation. Judicial opinions reveal satellite litigation over (1) lawyers' authority to enter into mediated settlements on their clients' behalf; (2) lawyers' competence in advising their clients to accept" or reject 2 mediated settlement agreements; (3) the influence exercised by mediators;" (4) good-faith and fair-dealing violations;14 (5) the proposed vacatur of preliminarily approved mediated class settlements;" and (6) imprecise contract formation. 6 The process of mediation was adopted by many courts as a means to ameliorate wasteful conflict and reduce the courts' dockets." However, mediation (or more accurately, those participating in mediation) may now be contributing to such conflict and dockets.
Nancy A. Welsh,
The Current Transitional State of Court-Connected ADR,
Marquette L. Rev.
Available at: https://scholarship.law.tamu.edu/facscholar/968