1 Barbara Ashley Phillips is a co-founder of NAICR -- North American Institute for Conflict Resolution. A graduate of Yale Law School, Phillips practiced law for 20 years before becoming a mediator in 1982. She has been engaged in the practice of mediation, along with coaching and training, since that time. Phillips is a former Assistant United States Attorney. She is the author of the popular handbook,
Finding Common Ground, A Field Guide to Mediation, 1994, and The Mediation Field Guide, 2001, Jossey-Bass.
2 As Judge Jack Etheridge observed: "the usual plethora of motions . . . are almost always contrived -- not at the heart of the real dispute." Jack Etheridge, Mending Fences: Mediation in the Community, Trial, Oct. 1985, at 30, 33.
3 See, for example, Richard Delgado et al., Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 Wis. L. Rev. 1359; Owen M. Fiss, Against Settlement, 93 Yale L. J. 1073 (1991); Michele G. Hermann, The Dangers of ADR: A Three-Tiered system of Justice, 3 J. Contemp. Legal Issues 117 (1991).
4 By safer, I mean closer to the imperative, "first, do no harm."
5 A prominent lawyer friend with whom I shared my intention to go public with this view of mediation, observed: "do you want to kill it?"
6Kimberlee K. Kovach, Chair elect, ABA Dispute Resolution section; reporter for The Standards of Conduct for Mediators and Chair-elect of the ABA Section on Alternative Dispute Resolution.
7 See, infra, The Future of Lawyers
8 HERE, MATERIAL ON PREFERENCE AGAINST CT. SETTLE. CONF.
10 See, infra, "The Construction Industry Experience."
11 CNA is a major player in the field at this time and most general liability companies end up in construction litigation more or less by the back door -- because it seems difficult to define it out of their contracts.
12 Douglas A. Henderson, Mediation Success: An Empirical Analysis, Ohio State Journal on Dispute Resolution 11:1 at 130, 131, 1996.
13 Joshua D. Rosenberg & H. Jay Folberg Alternative Dispute Resolution: An Empirical Analysis, 46 Stan. L. Rev. 1487 at 1487, July, 1994. This is not to denigrate ENE which is beginning to take on the characteristics of mediation. Nevertheless, ENE has not achieved broad acceptance: it is presently offered in only 14 of the 94 US District Courts, compared to 41 offering mediation. Elizabeth Plapinger and Donna Stienstra, ADR in the Federal District Courts: A Practitioner's Guide, Dispute Resolution Magazine, Spring 1996 7 at 9.
14 For example, in the N. Dist. Of California, the Handbook for 1997 ENE Evaulators advises, among other things not to rush to the numbers, listen patiently, never pressure counsel or litigants, be gentle but tenacious, acknowledge competing views, not to take personal offense, not to let feelings of responsibility for "success" distort your personality or performance, not to be in a hurry, to be even-handed, try to identify "interests" and other advice in this vein. This is a far cry from walking in in one's infinite wisdom and plunking down an opinion or a number -- it is respectful and filled with the wisdom of what a negotiation is all about.
15 Illinois 17th Judicial Circuit, Major Civil Case Mediation Pilot Program Statistical Summary, January, 1997.
16 Just how different is pointed out by Michael Lewis in Advocacy in Mediation: One Mediator's View, 2 Disp. Res. Magazine, 7 (1996): where else but in mediation do you have a chance to speak persuasively to another lawyer's client? Yet that's just what mediation often provides.
The flexibility of mediation is also one of its primary differences. In a medical malpractice mediation, the oncologist and the hospital were sued for blinding the plaintiff, a businesswoman in her late 50's. The doctor acknowledged responsibility but experts for the doctor and the hospital had diametrically opposed views of the hospital's liability and the hospital expected to contribute only a token amount. As the day wore on, it became apparent that progress depended on promptly getting a fair and reasonable demand from the plaintiff. . But the plaintiff who had spent much of the day alone feeling headachy, stressed and miserable, gave her lawyers no guidance, deciding first one way, then another.
With everyone's consent, the mediator took the plaintiff out for coffee. It took about an hour -- the walk down the street to a good coffeehouse, talking about what it meant to be blind, about children and grandchildren, smelling the fresh air, the mediator providing, at last, an attentive audience. When they returned, the Plaintiff had changed: she was ready to resolve and she could talk with her lawyers in a meaningful and effective way. Shortly thereafter, a demand which both defendants thought was realistic and fairly reasonable was made and the case settled late that evening. At the end, the plaintiff allowed the doctor to come in at the end and personally express his profound regrets.
17 (italics mine) Stipanowich, Beyond Arbitration: Innovation and Evolution in the United States Construction Industry, 31 Wake Forest Law Review 65 at 67 (1996) and The Quiet Revolution Comes to Kentucky: A Case Study in Community Mediation, 81 Ky. L.J. 855 (1993)..
19 See Table 1, Appendix A. The population of California from 1980 to 1990 increased by 6,092,119 people to 29,760,021, an increase of 25.7%. 1996 World Almanac.
20 The United States has long been a model of people's ability to work together, as seen from other parts of the world. Examples are the way villages and communities were built as the hinterlands and particularly the West were settled and the remarkable way the war effort in WWII came together: liberty ships, the backbone of our supply line to Great Britain, had taken 3 years to build prior to the War. During the war, with no greater technology, they were being turned out in 18 months, because everyone gave everything they had to the effort.
21 Valerie A. Sanchez, Towards a History of ADR: The Dispute Processing Continuum in Anglo-Saxon England and Today, Ohio State Journal On Dispute Resolution 11: 1 at 26 (1996). Self-help and blood feuds were common and a mere legal judgment, absent a willingness to comply with it, had its limitations.
22 Sanchez, supra, at 15, n. 53. In fact, prior to the Church-supported royal dispute resolution system, folk assemblies -- the entire community, in the early days presided over by a respected male elder familiar with the "customary law" -- served to resolve disputes. Later these were broken down by locale and presided over by representatives of the king. Sanchez, supra, at 16.
23 See, for example, John M. Conley & Willia M. O'Barr, Fundamentals of Jurisprudence: An Ethnography of Judicial Decision Making in Informal Courts, 66 N.C. L. Rev. 467, 481-482 (1988) to the effect that in informal courts, judges vary greatly in both styles and approaches to the law. See also Carrie Menkel-Meadow, The Trouble With The Adversary System in a Postmodern, Multicultural World, 38 Wm. & Mary L. Rev. 5 at __ 1996.
24 The tip of the iceberg called Restorative Justice is Victim-Offender Mediation. See, for example, Victim-Offender Mediation, 11 Ohio State Journal on Dispute Resolution 1 (1996) @ 207: "Mediation provides a mechanism for offenders to correct their wrongs and make a positive contribution to society." @ 213; see generally Harry Mika, The Practice and Prospect of Victim-Offender Programs, 46 SMU L. Rev. 2191 (1993); Dean E. Peachey, The Kitchener Experiment, Mediation and Criminal Justice: Victims, Offenders and Community 14 (Martin Wright & Burt Galaway eds., 1989).
25The Secret Language of Symbols: A Visual Key to Symbols and Their Meanings, by David Fontana, Chronicle Books, 1993 at 174
26 David Luban, Settlements and The Erosion of the Public Realm Georgetown Law Journal 83: 2619 at 2639 (1995)("to the extent out-of-court settlements are based on bargaining power and negotiation skills, facts lose their importance to the outcome and the outcome will resemble legal justice only coincidentally.") What does he think judgments are based on: Truth? Carrie Menkel-Meadow points out that "people may choose settlement precisely because legislatively enacted 'legal' solutions do not meet the underlying needs or interests of parties in particular cases . . ." Whose Dispute Is It Anyway? Georgetown Law Journal 83:2663 at 2676 (1995). Some suggest that the "rule of law" is at stake, when parties do their resolving outside of the court. See Hon. Harry T. Edwards: "we must determine whether ADR will result in an abandonment of our constitutional system in which the 'rule of law' is created and principally enforced by legitimate branches of government . . . ." Edwards, Alterhative Dispute Resolution: Panacea or Anathema?, 99 Harv. L. Rev. 668, 671 (1986).
27 "To begin with, it is not merely the outcome of the dispute which must meet the client's needs and interests; it is just as important that the process by which it is reached should be felt by the client to be appropriate and satisfying. However good the result may be when viewed in legal terms, the client will probably feel some dissatisfaction if it was arrived at by a process which the client did not understand; or if the client was unable to participate as fully as he or she wished; or if the client did not have an adequate opportunity to explain his or her perspective on the problem and know that it had been heard; or if the costs was too high; or if the procees endangered important relationships." The Role of Lawyers in Mediation, Roger Chapman, Johnston Lawrence Elder, Wellington, New Zealand Law Journal, 186 at 187 May, 1996]
28 Carrie Menkel-Meadow, Whose Dispute Is It, Anyway? 83 Georgetown L. Journal 2663 (1995)
29 This is, after all, the message of leading business advisors in this country. See, for example, Tom Peters, In Search of Excellence (19__), Liberation Management, (1994); Stephen R. Covey, The Seven Habits of Highly Effective People (1989) and Principled-Centered Leadership, (1991).
30 See, infra, "The Challenge for Courts" and "The Construction Industry Experience." In reading the latter, imagine that what has been happening there is happening in every aspect of civil disputing.
31 Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem-Solving, 31 UCLA L Rev. 754 at 768-83 (1984).
32 Carrie Menkel-Meadow, The Trouble With The Adversary System in a Postmodern, Multicultural World, 38 Wm. & Mary L. Rev. 5 1996, a laser-eyed walk through the structural, epistemological, remedial and bahavioral aspects of the adversary system in the context of a profoundly changing society with suggestions for developing alternatives..
33 Judith Resnik, Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication, 10 Ohio State Journal of Dispute Resolution No. 2, (1995) 211-265. MORE HERE
34 Toben continues: "In practically every sector of society, men and women of vision have begun to embrace the ideas and methods of collaborative problem-solving, conflict management and dispute resolution -- a virtual revolution in thinking over just the past two decades. Something is clearly afoot when the U.S.Department of Defense hires a nonprofit conflict resolution provider, Search for Common Ground, to help the Russian military address ethnic tensions in the ranks. The body of theory and practice that comprises the field of conflict resolution now poses a serious challenge to the power coercive paradigm that has long defined the bahavior of nation states and, truth be told, the behavior of humans in relationship generally. . . . [speaking to both] domestic and international practice, [he finds] the boundary between these domains is rapidly dissolving." Toben, etc.
35 See infra,"The Future of Lawyers"
36 The governor-general of New Zealand on the occasion of the 50th anniversary of VJ Day (victory over the Japanese in WWII) read a prayer that ends this way: "in the end, we will not be truly reconciled until you are as important to me as I am to myself."
37 Ecclesiastes 3:1
38 Andrew Harvey and Mark Matousek, Dialogues with a Modern Mystic at 60 - 62 (1994).
39 Tom Frantzen, speaking on Biodiversity in MainstreamFarming, First Annual IFFS Kellogg Holistic Management Project Statewide Meeting, Yakima, WA, January 23, 1997.
40 See "The Lens of Construction Mediation," infra
41 Divorce lawyers have longer exposure to mediation, for divorce mediation has been around longer. However, there has been a tendency in divorce mediation to exclude lawyers and for lawyers to exclude themselves when much of the work to be done is tying up loose ends in the relationship. In some jurisdictions, employment lawyers are gaining considerable experience in mediation -- Portland, Oregon, the San Francisco Bay Area and Los Angeles, in California, for example. In Florida, mediation is used frequently and in a wide variety of cases. See The Florida Experience, infra.
42 "In 1984, the insurance market got very tight, premiums went up dramatically, Firms got religion. The construction climate changed. In 1981-83, interest rates went way up and there were tremendous cost overruns. The industry was in turmoil. Architects cost projections were far surpassed by bids which were surpassed again by cost overruns, so they looked bad to their clients. Litigation was exploding. . . For every 100 insured firms, in 1984 we had 44 claims. In 1996 it's about 21 or 22." Conversation with Homer Sandridge, Architect and Engineer Insurance Program with CNA's broker Victor O. Schinnerer. Cheryl Terio, Director of Contract Document Services for Associated General Contractors says she worked for the AIA (American Institute of Architects) in the mid-80's and remembers the chaos: "members would call in, grown men in tears, saying they couldn't get liability insurance coverage. It was awful." Conversation with Cheryl Terio, January 15, 1997.
43 Conversation with Elliott P. Gleason, former Vice-President, Claims, Design Professional Insurance Company, January 11, 1997 is the basis for this entire section..
44 Gleason, supra
45 Gleason and Engels at __.
46 At American Intermediation Service (AIS) in those years, our statistics showed across the board an 80% acceptance rate when mediation was proposed initially by one side only (which was almost the only way mediation happened in those days) and a steady 85% settlement rate. Phillips, Finding at __.
47 sponsored by the national Construction Industry Dispute Avoidance and Resolution Task Force (DART), the ABA Forum on the Construction Industry, the ABA Public contracts Section, the Associated General Contractors and DPIC Companies, as well as organizations in Europe and Australia.
48 It is commonplace that with mediation, experience correlates with enthusiasm for its use. See, e.g., Stipanowich (Part 2), supra, n. __, at 10. This is true, even when the matter does not settle and in the face of some less-than-perfect experiences. See Civil Action Mediation Act: Results of the Pilot Project, November 1996, Judicial Council of California, Administrative Office of the Courts at 6 (more than 90 percent of responding parties and lawyers stated they would use mediation again, after initial exposure through a mandatory program.)
49 Pioneering work was done on grievance mediation in the coal industry by J.M. Brett and Steven B. Goldberg Industrial and Labor Relations Review 37:49-69 (1983). A call back to that vision is Waiting in the Wings: Mediation's Role in Grievance Resolution, Peter Feuille and Deborah M. Kolb, Negotiation Journal July 1994 249-265 (noting that managers are reluctant to use mediation [almost all are union-initiated challenges based on contract], grievances are often single-issue negotiations requiring real skill on the mediator's part to reframe issues so that creative problem-solving occurs and "mediation cannot long survive either party's desire to score victories over the other," which speaks to lack of trust.)
50 MERRY, MICHELE HERMANN, ETC. CITES NEEDED
51 Kenneth Kressel & Dean G. Pruitt, Themes in the Mediation of Social conflict, J. Soc. Issues Vol. 41, No. 2 1985 at 179; There are mountains of research showing nothing at all of relevance to general civil lawsuit mediation. Rodney G. Lim & Peter J.D. Carnevale, Contingencies in the Mediation of Disputes, 58 J. Personality & Soc. Psychol. 259, 267 (1990) (
52 The truth seems to be that there is "no consensus and little evidence" on what type of dispute that mediation is "best able and least able" to resolve. Jean M. Hiltrop, Mediator Behavior and the Settlement of Collective Bargaining Disputes in Britain, J. Soc. Issues Vol. 41, no.2, 1985 at 83.
53 Thomas J. Stipanowich & Leslie King O-Neal, Charting the Course: The 1994 Construction Industry Survey on Dispute Avoidance and Resolution, The Construction Lawyer 5-12 at 6, November, 1995 (Part 1) and 8-18, April 1996 (Part 2).
54 Stipanowich, (Part 1) at 6.
55 Thomas J. Stipanowich, Beyond Arbitration: Innovation and Evolution in the United States Construction Industry, Wake Forest Law Review 31:1 at 65. (1996).
56 Stipanowich (Part 1) at 8.
57 Stipanowitch, Wake Forest, at 176.
58 Stipanowich, (Part 1) at 6.
59 Stipanowich, (Part 2) at 9.
60 Stipanowich, Wake Forest, at 127, 128.
61 Stipanowich, Wake Forest, at 120
62 Elliott P. Gleason and Bernard P. Engels, Mediation -- An Effective Alternative to Litigation, 6 American Consulting Engineer (1990) at __.
63 Stipanowich, Wake Forest, 116.
64 Conversation with Elliott Gleason, former Vice-President, Claims, Design Professionals Insurance Company, February 6, 1997.
65 Stipanowich, Wake Forest, 116.
66 See Sharon Press, Court-Connected ADR: Policies and Issues, NIDR Forum, Summer 1995 4 at 7 ("there is only a small transition from advocate to arbitrator/evaluator. On the other hand, the transition from advocate to mediator is much more difficult and requires extensive training and experience in the mediation process to be effective.".)
67 Stipanowich, Wake Forest, 124.
68 See The Challenge for Courts, infra, at n. ___ [evaluative mediation]
69 For example: an evaluator might convene a joint session and say, "As I see it, this case is worth $120,000," while a mediator might say to a defendant, "I'm having trouble seeing how this case could go for less than $150,000." and say to a plaintiff in caucus, "what if you could get $125,000?" Both of these questions invite reflection and discussion and because mediation is contextual, much massaging has preceded the selection of the numbers being tested. The mediator's approach allows the parties to negotiate their own resolution, free of mediator control. In this way, vast disparities in evaluation of case worth can be whittled down to something that the parties can manage.
70 Conversation with Richard E. Alexander, Stoel Rives Boley Jones & Gray, Portland, Oregon, January 10, 1997.
71 The tremendous demands of mediating are one of the reasons why volunteer mediators for matters pending in courts of general jurisdiction don't work. As one lawyer who is a member of the federal court's volunteer panel in Portland, Oregon, observed: "I couldn't do it if it were more than 1 or 2 cases a year. It just takes too much effort and the cases can go long into the night." Alexander, supra, n.___.
72 Conversation with Sam Baker, Esq,, Oles, Morrison & Rinker, Seattle, Washington, January 10, 1997. This accords with the Survey which showed that "success in mediation most often hinged on the qualities of the mediator(s) while negative results were more frequently laid at the doorstep of the parties themselves." Stipanowich, Wake Forest, 178.
73 Lee Novich, The Construction Law Group, San Francisco; Jane Pandell, Pandell & Borsuk, San Francisco; Wyatt McCallie, General Counsel, CH2MHill, Denver, CO, conversations of January 10, 1997.
74 Lee Novich: The Construction Law Group, San Francisco January 10, 1997
75 Conversation with Jane Pandell, Pandell & Borsuk, Walnut Creek, California, January 10, 1997.
76 See supra, n. XXXX [Sandridge]
77 Conversation with CH2MHill General Counsel Wyatt McCallie, January 11, 1997 San Francisco lawyer Jane Pandell agrees: "We've seen a big reduction in contentiousness, because of mediation. There's been no pulling back from that. The problem is lawyers handling the litigation who are not familiar with mediation and wanting a special master, relying on the familiar.".Conversation with Jane Pandell, Pandell & Borsuk, Walnut Creek, California, January 10, 1997.
78 Stipanowich, Wake Forest, 124.
79 In the Survey, full discovery had been conducted in 43% of the cases sent to mediation. Document discovery was indicated in about one-fourth. In 21% of the cases, no discovery was conducted prior to mediation. Douglas A. Henderson, Mediation Success: An Empirical Analysis, Ohio State Journal on Dispute Resolution 11:1 at 131, 1996.
80 Stipanowich, Wake Forest, 101, 103.
81 Barbara Ashley Phillips, Finding Common Ground -- A Field Guide to Mediation, at __ (1994).
82 Stipanowich Wake Forest, 123 (in reported cases that fully or partially settled, the average number of parties was 5.7, while the average number in non-settled cases was 3.5)
83 Stipanowich, (Part 2) 9
84 See, contra, RAND at __.
85 Phillips, Finding, at __. Contrast the approach spelled out in the RAND Report on Just, Speedy . . . ("Four case management procedures showed consistent statistically significant effects on time to disposition: (1) early judicial management; (2) setting the trial schedule early; (3) reducing discovery cutoff; and (4) having litigations at or available on the telephone for settlement conferences . . . these procedures have the combined effect of reducing mediation time to disposition by about four to five months . . . ." at 29) In my opinion, the RAND study on CJRA was done too early. I believe, too, that the questions used in the survey were not subtle enough to pick up on the problems with these kinds of procedures -- e.g., lawyers were asked "How fair do you think the court management and procedures were for this case for your party or parties?" (RAND at 7) Something can be "fair" in the sense of being unbiased and still be a pain in the butt, an intrusion on the orderly resolution of the dispute and a costly imposition on the parties. Litigants were also asked this question and their post CJRA responses,, perhaps lacking the precision of lawyers' response, apparently showed less satisfaction with court management.
86 Henderson, supra, at 145 ("Of all the variables in the model, the source of the mediation rules used was, by far, the best predictor of mediation settlement. If rules developed by the AAA, CPR or some other institution (including the court) were used, settlement was significantly less likely to occur than when parties developed their own rules.")
87 For which the annual Pound Conferences begun in 19__ (76?) were named.
88 Marc Galanter and Mia Cahill "Most Cases Settle": Judicial Promotion and Regulation of Settlements, 46 Stanf. L. Rev. 1339 (1994) ("Virtually every "improvement" in adjudication increases the need and opportunity for greater expenditures. Refinements of due process require more submissions, hearings, and findings; elaborations of the law require research, investigation, and evidence. As transaction barriers (time, resources, uncertainty about recover and its amount) rise, there is a greater chance of overlap in the bargaining positions of the parties. There is more of a "settlement range" in which both parties are better off that if they had run through the full course of adjudication.")
90Just, Speedy and Inexpensive? An Evaluation of Judicial case Management under the civil Justice Reform Act, RAND Institute for Civil Justice (1996) at 10. (Citing the observations of several CJRA Advisory groups to the effect that "Legislation creating new federal crimes, adoption of the Speedy Trial Act and the advent of mandatory sentencing guidelines all increase the burden on the federal courts and provide less time for the orderly movement of civil cases.")
92 In California, Fast Track Rules which requires substantial early work on cases filed are credited with virtually containing the number of civil personal injury filings. Between 1984-85 and 1994-95, civil case filings have remained almost constant, increasing only 3%. Meanwhile, the California population was increasing at a rate of about 25% per decade. World Almanac; ANN. RPT. CALIFORNIA JUDICIAL COUNCIL (1996) at CITE
93 For example, the 71% decrease in federal court class action filings between 1977 and 1990 is attributed, in significant part, to decisions requiring expensive notice to the class early in the litigation. CITE NEEDED
94 Stipanowich, Beyond Arbitration: Innovation and Evolution in the United States Construction Industry, 31 Wake Forest Law Review 65 at 67 (1996) and The Quiet Revolution Comes to Kentucky: A Case Study in Community Mediation, 81 Ky. L.J. 855 (1993)..
95 In the federal courts, the portion of civil cases that terminated in trials dropped from 11 percent in 1961 to 4 percent in 1991. ADMIN. OFF. U.S. CTS. ANN. REP tbl. C-4. Yet between 1977 and 1990, civil filings increased by 67%. Administrative office of the united states courts, annual report of the director of the administrative office of the united states courts, Table 10, p. 185 (1977) and Table 5, p.7 (1990)
96 For example, in the first 9 months of operation of its ADR program, the U.S. District Court for the Western District of Missouri, referred 147 cases to mandatory ADR including mediation, Early Neutral Evaluation, Arbitration, Magistrate settlement conferences and other options. 142 of these selected mediation and litigants in an additional 66 cases requested referral to mediation. Sourcebook for Judges and Lawyers, Federal Judicial Center (1996) at 173. See discussion, infra, at __.
97 In 1976 at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, (Pound Conference) Frank E.A. Sander delivered an address titled Varieties of Dispute Resolution in which he posited what was to become the concept of the Courthouse of Many Doors. I have never been a fan of the Courthouse of Many Doors in part because it is based on the old paradigm of Power Over and I have feared that too much judicial, administrative and lawyer involvement could stunt the growth of new processes with too much formalism, onerous rules and too narrow a focus. Based on what I understand thus far about court programs around the country, I am more hopeful. See Jeffery W. Stempel, Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood? Ohio St. J. on Disp. Res. 11:2 at 324 ff.
98 David Luban Settlements and the Erosion of the Public Realm, 83: Georgetown Law Journal 2619 (1995); Marc Galanter and Mia Cahill "Most Cases Settle": Judicial Promotion and Regulation of Settlements, 46 Stanf. L. Rev. 1339 (1994); Carrie Menkel-Meadow, Whose Dispute Is It Anyway?, 83: Georgetown Law Journal 2663 (1995)
99 See, for example, ORS 36.XXX; Fla. Statutes 44.302; Ca. CCP Sec. ___;
100 With the 1990 Civil Justice Reform Act, mediation has become something of a fixture in more and more federal courts. Mediation programs are now found in nearly half of the 94 districts and many districts permit judges to require mediation, in contrast to a handful five years ago. Thus, what was heresy in its early stages has become law.
Elizabeth Plapinger and Donna Stienstra ask critical questions, including "Is the formalism of the typical court ADR program good or bad for a movement whose hallmark has always been flexibility and informality?"
101 Marc Galanter and Mia Cahill "Most Cases Settle": Judicial Promotion and Regulation of Settlements, 46 Stanf. L. Rev. 1339 (1994).
102 Carrie Menkel-Meadow, Whose Dispute Is It Anyway?, 83: Georgetown Law Journal 2663 at 2665 (1995)
103 See, for example, the California Fast Track rules; Phillips, Finding Common Ground, at ___ See also ;Just, Speedy and Inexpensive? An Evaluation of Judicial case Management under thecivil Justice Reform Act, RAND Institute for Civil Justice (1996) at 29, 30, the RAND study which used reduced time to disposition as the proxy for CJRA's effectiveness in its early years of operation in securing "just, speedy and inexpensive" resolution of cases. Its recommendations are that the more traditional judicial discretion model of case management be replaced with (1) early judicial management (2) setting the trial schedule early (3) reducing discovery cutoff and (4) having litigants at or available on the telephone for settlement conferences. It acknowledges that early judicial management increases lawyer work hours, but it balances this effect by imposing a shortened discovery cutoff. Merely shortening time to disposition causes the lawyers "to do much the same work, but do it in less time." It also contemplates assigning a clerk to monitor deadlines for service and answer and to begin judicial action to dispose of the case if those deadlines are missed. I don't believe it provided a budget for the pitchforks.
Professor Jeffery Stempel observed recently that flipping a coin scores high on speed and frugality as a dispute resolution device, but tht it lacked something as to dignity or guidance for future events and offered at best only a 50-50 chance for accuracy.
104 See Herbert M. Kritzer, Adjudication to Settlement: Shading in the Gray, 70 JUDICATURE 161, 162-64 (1986)(analyzing 1649 cases in five federal judicial districts and seven state courts; finding that 15% were terminated through some form of adjudication other than trial, 7% were terminated by jury verdict or court decision after trial; and 9% settled following a ruling on a significant motion. The remaining two-thirds just . . .settled.)
106 There was a federal judge out West here who prided himself on the number of cases before him that settled. One day, however, I got some insight into how he did it. A lawyer from his jurisdiction told me this story: This was a big case; I decided to raise a pivotal issue by motion to the judge, because it would help clear away the underbrush in the case. Both sides did a great job of briefing. Our arguments were good, too. After we finished, the judge looked over the bench and said to us: "counsel, as I understand it, this is what this case is all about . . . ." I felt sick to my stomach. Opposing counsel and I left the courtroom together and as we reached the hall, I looked over and saw he was white as a sheet. "My God," he said, "we'd better settle this case."
107 See The Challenge for Courts, infra. At n. ___ [re spl. mastering]
108 Florida's experience is instructive here. It had no calendar backlog when the mediation program was instituted. Calendar management was an argument used to support the creation of the program, but more as an also-ran with the main objective which was to improve user satisfaction. Conversation with Sharon Press, Director, Florida Dispute Resolution Center, February 10, 1997. That was a lot healthier starting place than beginning with a calendar crisis, as the federal courts have had to do.
109 Leonard L. Riskin, Understanding Mediators' Orientations, Strategies and Techniques: A Grid for the Perplexed, Harv. Neg. L. Rev. 1:7 at 22, (Spring, 1996).
110 See Stipanowich, Wake Forest, supra, n. ___ [list of mediator characteristics in order of significance to the parties.
111 Taken in part from What Makes a Good Mediator? Ask a Middle School Student, Albie M Davis, Negotiation Journal, January 1994 @67. See also Sam Baker quote, Alexander quote. Stipanowich, Wake Forest. . .CITES NEEDED
112 For example, in 1995, in San Diego County Superior court, California, mediators were paid $150 per case. The average time spent in mediation there was 3.6 hours, compared to Los Angeles where it was 2.6 hours, where the compensation was $___. Success in mediation takes time: statewide, cases that settled required an average of 3.5 hours vs. 2.4 hours averaged for those that did not settle. Civil Action Mediation Act: Results of the Pilot Project, November 1996, Judicial Council of California, Administrative Office of the Courts at 4,8.
113 Richard Alexander, supra, n.___.
114 Sam Baker, supra, n. ___
115 Conversation with Sharon Press, February 10, 1997. See n. 26, supra [San Diego]
116 The courts gave the Supreme Court the power to certify and register mediators, but provided:
(A) Whenever possible, qualified individuals who have volunteered their time to serve as mediators shall be appointed. If a mediation program is funded pursusant to s.44.108, volunteer mediators shall be entitled to reimbursement pursuant to s. 112.061 for all actual expenses necessitated by service as a mediator.
(B) Nonvolunteer mediators shall be compensated according to rules adopted by the Supreme Court. If a mediation program is funded pursuant to s.44.108, a mediator may be compensated by the county or by the parties. When a party has been declared indigent or insolvent, that party's pro rata share of a mediator's compensation shall be paid by the county at the rate set by administrative order of the chief judge of the circuit." Fl. Stats. 44.102(5)
117 Conversation with Sharon Press, February 10, 1997.
118 Florida is blessed in this this instance with a large retired population so unlike other areas, it has been more successful than others in maintaining some of the pro bono programs. Nevertheless, fairness to the mediators is something the Dispute Resolution Center keeps an eye on. CITE
119 Conversation with Sharon Press, February 10, 1997.
120 Christopher Honeyman, Two Out of Three, Negotiation Journal January 1995 at 5. In the two federal district courts in Wisconsin, the Eastern district reported 15 referrals between January and September of 1994. The Western District uses magistrate judge settlement conferences that "last fifteen minutes to five hours." They also have an ENE program that got about one case per month in 1994. . ADR and Settlement in the Federal District Courts, a Sourcebook for Judges and Lawyers, Federal Judicial Center (1996) at 303-307.
121ADR and Settlement in the Federal District Courts, a Sourcebook for Judges and Lawyers, Federal Judicial Center (1996) at 236-238.
122ADR and Settlement in the Federal District Courts, a Sourcebook for Judges and Lawyers, Federal Judicial Center (1996) at 10."there appears to be little relationship between whether fees are assessed and whether the referral to ADR is mandatory or made only with party consent."
123 Riskin, Understanding Mediators. Riskin observes that "in studying farm-credit mediation," he observed "two patterns of mediation . . . that differed so radically that they could both be called mediation only in the sense that noon meals at McDonald's and Sardi's could both be called lunch." Riskin at 11,12.
124 Lela Love and Kimberly Kovach Evaluative Mediation is an Oxymoron. 14 Alternatives 41 (1996). Takes issue with Riskin's grid. John Bickerman, Evaluative Mediator Response to the Kovach and Love 14 Alternatives 70 (1996). Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 Alternatives 62 (1996). The matter was debated by James Alfini & Gerald S. Clay in, Should Lawyer-Mediators Be Prohibited from Providing Legal Advice or Evalution?, Disp. Resol. Mag., Spring 1994.
125 See STANDARDS OF CONDUCT FOR MEDIATORS (American Arbitration Assn. Society of Professionals in Dispute Resolution and ABA Section on Dispute Resolution, 1994) providing in part: "The primary purpose of a mediator is to facilitate the parties/ voluntary agreement. . . . Mixing the role of a mediator and the role of a professional advising a client is problematic and mediators must strive to distinguish between the roles. A mediator should therefore refrain from providing professional advice. Where appropriate, a mediator should recommend that the parties seek outside professional advice . . . ." and Riskin's comments relating thereto, Riskin at 9, 10.
126 ORS CITE here re drafting agreements; STANDARDS
127 Jacqueline M. Nolan-Haley, "Court Mediation and the Search for Justice Through Law," 74 Washington University Law Quarterly, 47 at 52 (1996)
128 Galanter, CITE about the value of insider knowledge; Nolay-Hanley
129 Illinois, supra, n. XXXX
130 As Tom Colosi was quoted as saying recently, "All I do is to plant the seed of doubt." NEED MORE cite here. The effect of planting the seed of doubt, is to cause people to review their assumptions. When people discover their own weaknesses and blind spots it is far more powerful than when someone tells them about them. The mere act of telling creates resistence.
131 The American Bar Association Standards of Practice for Lawyer Mediators in Family Disputes permit mediators to "define the legal issues," but not advise the parties based on the mediator's understanding of the legal situation. ABA Stds. Of Prac for Lawyer Mediators in Family Disputes, Std. IV(C) (1984).
132 In one construction case I mediated, we had gone on until after 1 AM. There was one party that had to settle and another party who was pretty greedy. I think of mediations like this as something like searching for a golden key in a basement full of piles of dirty rags, with only a dim flashlight. Sooner or later, if you keep at it, you'll find what it takes to loose the gordian knot. In this case, it turned out to be the owner's expert who needed to see his role in perpetuating the problem -- he had not shifted from expert for the party to expert for the best resolution. No one had had supper. Everyone was tired, but they stuck with it. One lawyer observed, "you know, you play fatigue like an organ." The case was settled and we were on our way home by 3 AM.
133 Among them were William F. Lincoln of National Center Associates and Tom Colosi, American Arbitration Association's Vice-President for National Affairs, Edith B. Primm of the Justice Center in Atlanta and Linda Singer of the Center for Dispute Settlement in Washington, D.C. and Christopher W. Moore of CDR Associates in Denver.
134 James B. Boskey (The Proper Role of the Mediator: Rational Assessment, Not Pressure) and David E. Matz (Mediator Pressure and Party Autonomy: Are They Consistent With Each Other? Negotiation Journal, October 1994 @367 and 359, have taken opposite sides of the issue whether the mediator's pressuring the parties is proper. In my view, that's not the question. The issue is, pressure to do what? Pressure to get parties to buy into the "mediator's" view of a proper outcome is entirely different from pressure to release one's grip on the short-term view, think of long-term interests, and take other steps that enhance a disputant's power to make a wise decision.
135 This was not true in San Diego in 1995 where the volume of referrals was such that lay mediators were used. Conversation with John Toker, Attorney, California Judicial Council, Administrative Office of the Courts, February 6, 1997.
136 The San Diego Bankruptcy Court instituted a mediation program using a panel of 27 volunteer mediators submitted by the bankruptcy section of the local bar. The court invited parties to choose a mediator from this list. The mediators did not support formal training, believing they had learned to mediate adequately from watching outstanding settlement judges. Alt. Disp. Resol. In a Bkcy. Court: The Mediation Program in the southern District of Ca., Steven Hartwell, School of Law, Univ .of San Diego, and Gordon Bermant, Fed. Jud. Ctr., 1988 at 34..
137 MORE HERE
138 Rule 10.010, Florida Rules for Certified and Court-Appointed Mediators, Florida Mediation/Arbitration Programs Compendium, 9th ed., at 176 (1996).
139 Contrast the law in Oregon which provides that "Formal education in any particular field shall not be a prerequisite to serving as a mediator." ORS 36.200 (2).
140 Law training and law experience seem to hard-wire certain habits of thought and speech into a person and it is fruitful to the field to have people mediating who don't have that characteristic. And since mediators can't give legal advice, there would seem to be only political reasons to limit the pool of mediators to those who are lawyers. See STANDARDS FOR MEDIATORS, etc.
141 A pilot program conducted by the Illinois 17th Judicial Circuit involved initially 13 experienced trial attorneys or retired judges, later augmented by 19 more, all of whom were trained. Of the group, one had a settlement rate far above the others, (and more in keeping with what experienced, private professional mediators accomplish) and handled a relatively large number of cases. [IS IT] 25% of the programs settlements came from this one mediator. Major Civil Case Mediation Pilot Program, 17th Judicial Dircuit of Illinois, Preliminary Report (1994), Appendix E. Experienced users of mediation in construction disputes rate the importance of legal expertise in the mediator behind impartiality, ability to manage proceedings, listening ability, discretion and trustworthiness, ability to understand complex issues patience, creativity and the ability to explore alternatives, persuasiveness, and design or construction experience. Of 14 characteristics, legal expertise in the subject matter rated 3rd from last in importance. Stipanowitch, Wake Forest, at 105.
142 Plapinger & Seinstra, 8
143 The Hon. Justice L.T. Olsson, Mediation and the Courts -- Inspiration or Desperation? (1995-1996) 5 Journal of Judicial Administration 236 at 241, 242
144Conversation with Jane Pandell, Esq. January 10, 1997
145 Conversation with Judy Mendoza, January 12, 1997.
146 McMillen v. Superior Court, supra, at 7865-7866 (2nd DCA, October 29, 1996).
147 Conversations with employment lawyers Susan Hammer of Portland, Oregon and David Gindler and Jim Adler of Los Angeles January 16, 1997.
148 Stipanowich, Beyond Arbitration: Innovation and Evolution in the United States Construction Industry, 31 Wake Forest Law Review 65 at __ (1996), showing that there was a significantly greater likelihood of resolution when the parties made their own rules then when they were using canned rules;
149 A study commissioned in 1991 by the California Judicial Council found that California courts generally had limited knowledge about alternative dispute resolution and less experience, outside of judicial arbitration and settlement conferences. Folberg, Rosenberg and Barrett, Use of ADR in California Courts: Findings and Proposals (1991) 24 USF L. Rev. 343.
150 In a study of 8 federal district courts with voluntary arbitration programs, the opt-out programs had participation comparable with fully mandatory programs while the voluntary programs had almost no referrals at all. Voluntary Arbitration in Eight Federal District Courts: An Evaluation, Federal Judicial Center, 1994.
151 The Lawyer Turns Peacemaker, Richard C. Reuben, 82 ABA Journal 54 (Ag., 96)
152 ORS 36.185 provides a party can terminate a reference to mediation by simply filing an objection. In Florida, the parties have ten days to select their own mediator and 90% do. Mediation/Arbitration Programs Compendium, 9th ed., at 176 (1996).
153 "ORS Sec. 36.200(4)
154 Contact Sound of Knowledge, 4901 Morena Blvd. #207, San Diego, CA 92117, for a transcript of this program session. For a comprehensive review of factors that court programs need to consider, see Sharon Press, Court-Connected ADR: Policies and Issues, 28 NIDR Forum 4 (Summer 1995)
155 This mediator was on staff and paid by the court -- an unlikely scenario in many jurisdictions, due to cost constraints. But today there are enough good mediators available to the courts to allow for lawyers to have the experience.
156 "This provision has led to the intended result of greater party involvement in the process with circuits reporting that over 90 percent of the parties agree on a mediator." 1996 Florida Mediation/Arbitration Programs: A Compendium at v/
157Advisory Opinion, 95-009 Mediator Qualifications Advisory Panel
158 The relevant measure here is mediation costs compared to litigation costs. On that basis, mediation costs are truly trivial. Even in Los Angeles, where mediating lawyers charge their usual hourly rate of close to $400 per hour, the costs for a day of mediation are tiny compared to even modest litigation costs. Litigants are looking at spending less than $5000, including attorneys' fees and getting a better than even chance of resolving the lawsuit to their satisfaction,
159 ABOTA Conversation CITE
160 Lon Fuller, supra
161 But see, Finding Common Ground etc MORE HERE
162 Conversation with Richard Krause, Mediation and Arbitration Coordinator for Rockford February 11, 1997.
163 See, for example, John M. Conley & Willia M. O'Barr, Fundamentals of Jurisprudence: An Ethnography of Judicial Decision Making in Informal Courts, 66 N.C. L. Rev. 467, 481-482 (1988) to the effect that in informal courts, judges vary greatly in both styles and approaches to the law.
164 See Marc Galanter and Mia Cahill, "Most Cases Settle: Judicial Promotion and Regulation of Settlements" 46 Staf. L. Rev. 1339, 1385-1386 (1994), arguing that counsel's advice is significantly more accurate with repeated exposure to decision-makers, rather than a one-shot experience.
165 See Nolan-Haley, supra, 91; Judith Maute, Mediator Accountability: Responding to Fairness Concerns, 1990 J. Disp. Resol. 347 at 360
166 Nolan-Haley, supra, 71-76
167 Maute, supra, at 360; Nolan-Haley, supra, at 91
168 In multi-party cases it is almost inevitable that one of the counsel will be required to attend a court hearing on the date set for mediation requiring the whole matter to be rescheduled. Equal dignity would speak volumes about the importance of the ADR process. The opposite view seems to taken by the U.S. District Court for the N.D.of California:"The court and evaluators may not schedule ENE events to interfere with the management of the case by the assigned judge."ADR and Settlement in the Federal District Courts, a sourcebook for judges and lawyers, Federal Judicial Center (1996).
169 A man came to this farm one day asking for work. The farmer set him to work putting up fences. The man did a great job. The farmer paid him his wages and he left. The next day he returned. The farmer showed him how to clean out the barn and spread the manure on the fields. Again, the man did a great job. He got his wages and left. The next day he returned. The farmer was running out of things for him to do, but remembering it would soon be time to plant potatoes, he finally said, "see that pile of potatoes over there? Sort those into three piles, small, medium and large." The man set to work. At the end of the day, he took his wages and said, "I quit." "What's the matter?" asked the farmer. "I'm a wreck," the man replied. "All day long, it's been decisions, decisions, decisions."
170 See Just, Speedy and Inexpensive? An Evaluation of Judicial case Management under thecivil Justice Reform Act, RAND Institute for Civil Justice (1996) (studying 10 CJRA pilot districts compared to 10 control districts for the period 1991 (before CJRA) and 1992-1993. The report found no impact by CJRA, but instead recommended tightening judicial management of cases by shortening discovery time and setting early trial dates.
171 The State of The Legal Profession 1990, ABA Young Lawyers Association (1992), Executive Summary at 3
172 The Report of At The Breaking Point, a National Conference on the Emerging Crisis in the Quality of Lawyers' Health and Lives -- its impact on law firms and client services (Breaking Point), 1991 at 9.
173 Hindi Greenberg, Career Satisfaction in the Law, The Compleat Lawyer, Spring, 1996 at 36.
174 1995 ABA Young Lawyers Division survey. Career Satisfaction (Career Satisfaction), ABA Young Lawyers Division Survey, 1995 at 9.
175 ,Career Satisfaction at 5..
176 Breaking Point, at 3. About 1/3 of childless lawyers stated that their decision not to have children was based on the demands of their careers
177 The State of The Legal Profession 1990, ABA Young Lawyers Association (1992) at 48. The percentage for women was slightly higher than for men (37% compared to 31%.)
178 . Breaking Point at 10; Another survey of a stratified random sample of 10% of the practicing lawyers within the State of Washington, one-third reported suffering from psychological, behavioral and physical symptoms indicating the presence of depression, alcohol abuse or cocaine abuse. Similar data have been collected in other jurisdictions. G. Andrew H. Benjamin, Bruce D. Sales and Elaine Darling, Comprehensive Lawyer Assistance Programs: Justification and Model, 16 Law & Psychology Review 113 at 114, 1992(?).
179 The State of The Legal Profession 1990, ABA Young Lawyers Association (1992) at 33.
180 Conversation with Theodore W. Phillips, Esq., January 13, 1997.
181 One Seattle lawyer observed recently: "In our area, construction law firms cut back on hiring and some construction law firms have disappeared. Today, however, we're busier than we've ever been. There is still mediation." Conversation with Sam Baker, Esq,, Oles, Morrison & Rinker,LLP, Seattle, Washington, January 10, 1997
182 Steve Toben, The Future of the Conflict Resolution Field, NIDR News III, No. 1 (Jan/Feb. 1996) at 1. Toben continues: "In practically every sector of society, men and women of vision have begun to embrace the ideas and methods of collaborative problem-solving, conflict management and dispute resolution -- a virtual revolution in thinking over just the past two decades. Something is clearly afoot when the U.S.Department of Defense hires a nonprofit conflict resolution provider, Search for Common Ground, to help the Russian military address ethnic tensions in the ranks. The body of theory and practice that comprises the field of conflict resolution now poses a serious challenge to the power coercive paradigm that has long defined the behavior of nation states and, truth be told, the behavior of humans in relationship generally. . . . [speaking to both] domestic and international practice, [he finds] the boundary between these domains is rapidly dissolving."