In 1998, commenting on the hot controversy about the “Rand Report’s” finding that certain mediation programs did not save time or money (measured in terms of lawyers’ work hours), Professor Craig McEwen argued that it was the wrong question to ask whether “mediation works.” Critics of the Report had argued that its methodology led to a false impression that mediation doesn’t work. McEwen suggested that “Instead of asking whether mediation works or not, we need to examine how and why parties and lawyers “work” mediation in varying ways.” Craig A. McEwen, Managing Corporate Disputing: Overcoming Barriers to the Effective Use of Mediation for Reducing the Cost and Time of Litigation, 14 Ohio St. J. on Disp. Resol. 1, 3 (1998).
I have a similar reaction to the title of the Cardozo symposium, “Is Mediation a Sleeping Beauty?” and the descriptions of the presentations in Lela Love’s post (via Art).
A few caveats before I explain my thinking. I understand the value of a provocative symposium title and this one obviously captured people’s imaginations. Of course, it is very hard to capture nuances in a single sentence summary or even in fairly brief symposium presentations. The symposium articles may address some of my concerns.
The presenters are, indeed, luminaries in our field and many are good friends who I like and respect a lot. It sounds like the symposium was stimulating and great fun. I’m sorry I wasn’t there.
I agree with many of the concerns that presenters expressed. When I was in private practice, doing mostly divorce mediation, I used procedures I think they would say are desirable (if not beautiful). Some time ago, I wrote an article expressing concern about what I called “liti-mediation,” which I argued could decrease the quality of parties’ decision-making and consent. I have written about bad faith in mediation. Like some presenters, I favor things such as the use of joint opening sessions, direct party participation, focus on the full range of parties’ relevant interests, and limitation of use of mediator evaluations as much as appropriate.
Considering all this, what’s my problem? (There are many theories about this but we will save them for another time.)
In brief, this sleeping beauty discussion (at least as described in the summary) oversimplifies a very complex phenomenon and turns it into a counterproductive morality play of good and evil. I think it is counterproductive because I think that it mischaracterizes the problems, risks alienating needed allies, and can lead to less effective strategies for solving the problems. Since I didn’t attend the symposium, I don’t know how much my concerns would apply to particular presentations (and thus the “shoe may not fit” some of them). Although my concerns may not apply to some presentations, I have heard many people in our community express these ideas.
First, mediation is not a single uniform thing – and it is not an actor with independent agency. The term refers to an incredibly diverse range of procedures that people use in various ways. Echoing Craig McEwen, instead of asking whether mediation is a sleeping beauty, I think it would be more helpful to ask why people use “it” in more or less beautiful (or useful) ways and how we can help people use “it” better.
I suspect that most of us would agree that the mediation process differs greatly depending on many factors including, but not limited to, the subject matter, the sophistication of the parties, the nature and extent of their preparation, their interests, their goals for the process, their procedural preferences, the prior relationship of the parties, any desire of the parties to have a future relationship, whether and how lawyers participate, the mediators’ general goals and preferred approaches, and the legal and mediation practice culture. So I think that we should normally avoid generalizing about mediation as if it is a single, uniform process.
I wonder if anyone at the symposium mentioned the truism that “beauty is in the eye of the beholder.” Mediations that some would call a beauty, others would call a beast and vice versa. While most of us might agree on the extremes, I suspect that most mediations are somewhere in “the middle” with much less consensus about the amount of beauty or lack thereof.
Although the Sleeping Beauty story provides a vivid metaphor that you might say is just a hook for discussion, it reflects a polarized vision of good and bad that I hear a lot in our community. “Our” preferred version of mediation is the virtuous, beautiful princess and the “other” version is the bad, ugly step-sister. In this fairy tale, “we” are the chivalrous heros and heroines who rescue sleeping beauty from the villain, often cast as lawyers and/or the courts.
In an article, I wrote, “Procedures are inanimate phenomena that should be means to ends, not ends in themselves. Yet many of us make fetishes of our favorite procedures as if they have some extra measure of goodness. These procedures are incredibly malleable and can yield better or worse effects depending on many things, especially how people use them. . . . Rather than making procedures the protagonists in these stories, we should celebrate humans and their wise and caring actions when working with conflict. This includes judges and lawyers who choose between the various procedural options (including, but not limited to, trials) to promote appropriate goals for litigants and societies. Judges can make some of their best contributions by helping design and manage disputing systems as well as trying cases. . . . Mediators and arbitrators are often heroes, helping people work through conflicts. . . . Instead of investing so much of our cultural resources in myths about our most (or least) favorite procedures, we should invest more in realistic stories honoring people who work together to make good choices in using procedures to satisfy people’s interests.”
Like it or not, mediation conducted in the shadow of the courts relies on the cooperation of lawyers and judges. So, purely as a matter of self-interest, we do well not to demonize or alienate them. Moreover, I think that general characterizations of them as subverters of “good mediation” are inaccurate oversimplifications of their perspectives, which are quite diverse.
I would start with a rebuttable presumption that lawyers and judges in a community generally are trying to perform their functions as well as possible given their perceptions of their goals in their roles and their particular practice culture. Mediators can work with lawyers in individual cases to negotiate appropriate procedures as recommended by the ABA Section of Dispute Resolution Task Force on Improving Mediation Quality. Following one of the Task Force’s key recommendations, parties and lawyers can prepare for mediation by using the “mediation guides” that the Section developed. (FYI, I was a member of the Task Force and helped draft the mediation guides.)
Mediators have a hard time when they work in practice cultures with norms different from the mediators’ preferences. These situations could benefit from dialogues between representatives of the different stakeholder groups seeking agreements about procedures and norms that satisfy the interests of the various stakeholders, especially the parties. In such a dialogue, mediators might ask questions such as the following: What are the interests of lawyers and courts in mediation? What do lawyers and judges think are the parties’ interests? Are lawyers open to considering that some parties may have interests in addition to resolution and maximizing their partisan outcomes? Under what circumstances would lawyers be open to using particular mediation procedures? How could lawyers and courts work with mediators to promote the most productive mediation practice culture and norms?
I’ll be curious to read what the symposium speakers recommend to revive their preferred visions of mediation.
What do you think? Email me. You never write. You never call.
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:
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.
Under the heading of hard bargaining tactics gone bad (and bad lawyer advice), we can now add this story. When a group of eight faculty members at the General Theological Seminary in Manhattan decided to stop working in order to protest their newly hired dean and president, Rev. Kurt H. Dunkle, all purgatory broke loose. Under advice of their counsel, the faculty wrote a rather strongly worded letter outlining their demands regarding the dean. (See the nasty details of the dean’s behavior here).
Unimpressed with the tone of the letter, the Board of Trustees for the Seminary considered the letter, instead of the opening bid that the faculty intended, as a mass resignation. They dismissed the eight faculty members (leaving the students at the Seminary with only two instructors.) In this case, the eight faculty members’ hard bargaining tactic to have their foul-mouthed, micromanaging (in their descriptions) dean dismissed ended up focusing attention on their perceived “bad” behavior rather than that of their dean.
Earlier this month, seven of the faculty members were reinstated (one of them accepted a severance package and moved on). And only now, (finally) the faculty and board of trustees are using mediation to see if their interests can be met.
When we talk about expanding the pie, we should also be talking about shrinking the pie. This is a great example of just that–and woe for the unlucky students. (Hat tip to my colleague Bruce Boyden for this awesome storyline)
Alan Kaplinsky and Mark Levin, Ballard Spahr attorneys writing on their CFPB Monitor blog, have offered their initial thoughts on the study of consumer understanding of arbitration agreements that my St. John’s colleagues and I recently posted.
My colleague Jeff Sovern has posted a full response at the Consumer Law & Policy Blog. I’ll just add that, in my view, Levin and Kaplinsky don’t actually address the core problem we address in our article–that citizens are being unwittingly and unwillingly forced to give up important (and constitutionally guaranteed) procedural rights. Their point–and it is the point arbitration advocates almost invariably make–is that arbitration can be better for consumers than litigation. That may very well be true, at least some of the time. (See my post on the benefits of limited consumer arbitration here.) But it doesn’t answer the right question.
The constitution guarantees a right to a jury trial in civil disputes. More broadly, the rule of law depends on access to public adjudication to enforce private rights. Citizens cannot be forced into alternative processes simply because someone has made a determination that they would in fact be better served by the alternatives. It is certainly true that citizens can choose to give up their adjudicative rights, but those choices have legitimacy only if they are knowing and voluntary. Our research suggests that consent to arbitration is seldom knowing and voluntary.