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Mediation: Did we get it wrong? by Barbara Ashley Phillips
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Mediation: Did We Get It Wrong?
By Barbara Ashley Phillips(1)

A fresh look at how to build the most productive relationship 
beween the courts and the processes we call mediation.


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Copyright © 1997, American West Institute for Conflict Resolution. All rights reserved. Reprinting only with written permission.


Table Of Contents
1.  Introduction
A. The Rise of Mediation
B. The Changing World of Litigation
C. Some Conceptual Tools: Justice, Power, and Balance

2.  The Construction Industry Experience with Mediation

3.  The Challenge for Courts
(1) First, understand and accept mediation on its own terms for what it is and treat it with the respect it is due as the principal resource for dealing with the vast majority of civil disputes that will settle.
(2) Integrate docket management tools with the vision of Appropriate Dispute Resolution, so as to foster quality outcomes

4.  The Future of Lawyers

5.  Conclusion


Mediation: Did We Get It Wrong?
By Barbara Ashley Phillips(1)

Introduction

Mediation is unique among dispute resolution alternatives. Minitrial, early neutral evaluation, summary jury trial and non-binding arbitration as well as court settlement conferences all tend to emphasize predicting what will happen in later adjudicatory proceedings. Mediation is focused on addressing the full range of issues the parties bring to the table.(2)

We have tended to debate mediation as if its ability to focus so broadly were a weakness.(3) Other aspects of mediation often seen as weaknesses are its dependence on the consent and trust of the parties even though these conditions serve both to empower the process and make it safer.(4) In a very real sense, mediation is the feminine face of dispute resolution that has the capacity to restore balance in dispute resolution options that we sorely need.(5) It is a forum where people -- both litigants and lawyers -- can build enough trust to drop the adversarial facade and come to grips with the reality of the situation in which they find themselves. It is, by definition, facilitative."(6)

My purpose here is to offer two points for consideration. How we respond to these considerations over the next few years will determine whether with mediation, we got it right or wrong. 

(1) First, mediation needs to be understood and accepted on its own terms for what it is and recognized as the principal resource for dealing with the vast majority of civil disputes that will settle;

(2) Second, the courts need to integrate case management tools with the vision of Appropriate Dispute Resolution and not the other way around in order to have a harmonious system that does not work at cross-purposes. 

If these two steps are taken, courts will remain the headquarters for civil dispute resolution and lawyers will once again be assured of a place on center stage in the resolution of civil disputes. Lawyers will share the place that they used to occupy exclusively with people from other disciplines, but the public -- and the profession -- will be well-served.(7)

The Rise of Mediation
Mediation is not the cause but the a product of significant changes in society. It is the beneficiary of a trend toward problem-solving and away from confrontation. Moreover, there is evidence everywhere that litigants prefer processes in which they have a chance for significant participation -- the chance to tell their story.(8) Lawyer satisfaction is not synonymous with litigant satisfaction(9) and it is the litigants to whom the system is ultimately responsible. A brief review of the evolution of mediation is in order. 

Much of the money paid out in settlements in this country is paid by insurance companies. Insurance carriers became interested in mediation about 1984 and leading companies such as The Travelers and Aetna put about 10% of their claims into mediation over the next few years. Claims professionals, particularly those with major litigation responsibility, became relatively enthusiastic about mediation, despite the significant problems raised by claims administrations policies and procedures based on numerous short non-dispositive file handlings. Lawyers' responses were more mixed. Today, for whatever reason, their litigation to be more lawyer-controlled and general use of mediation by carriers seems to come largely only at the end of extensive discovery. Today, they still have only about 10% of litigated claims in mediation. 

It was a different story in the construction industry.(10) In construction, insurance broadly covers defense costs, but indemnity coverage is narrowly proscribed. Construction insurance has been to a significant extent in the hands of specialty insurance companies, not general liability companies.(11)

According to a 1994 construction industry survey of ADR experience among 2300 users, 83.8% of the ADR experiences involved mediation and the decision to resort to mediation was the product of agreement between the parties nearly two-thirds of the time. Only in one-third of the instances where mediation was chosen, was the process court-initiated.(12) By contrast, in an exhaustive study of Early Neutral Evaluation in the U.S. District Court in San Francisco which pioneered it, for example, the researchers discovered that despite an 80% satisfaction rate among lawyers using ENE in assigned cases, there was not one example of any lawyer voluntarily choosing ENE.(13) My sense of ENE has been that although the timing and the information available through the process were helpful, the evaluators often lacked the mediator's skills in helping the parties nail down the benefit of the input: too often, counsel simply drifted back into established practice. Rarely does insight alone resolve disputes and it seems the program administrators are taking steps to deal with this reality.(14)

Various state courts are using mediation programs with notable success. In Illinois' 17th Judicial Circuit, the court has had a mediation program in place for nearly 4 years. Now, having mediated more than 500 cases, they are seeing agreement reached in 68% of cases mediated, up from 44% in the first 10 months of the program.(15) California's mandatory mediation program for cases under $50,000, SB 401, in the Los Angeles and San Diego Superior Courts in 1995 saw nearly 1000 cases submitted to mediation. Full agreement was reached by all or some parties in 32% of Los Angeles cases and 41% of San Diego cases, yet more than 90% of respondents to the court's inquiry about results stated that they would use the same ADR procedure again. 

So great is the change brought about by mediation and the wave of change it is riding, observers struggle for words to describe it: ADR pioneer Frank Sander speaks of mediation as "the sleeping giant of [dispute resolution]" because of its differences from trial and arbitration.(16) Tom Stipanowich tells us that "a quiet revolution is occurring in America and throughout the industrialized world. It has to do with the way people perceive the controversies that affect them and their involvement in the search for solutions."(17) If people want more involvement in the search for solutions to controversies that affect them and if they perceive those controversies problems to be solved rather than victories to be won, the whole social underpinning of civil litigation is washing away. This may account in part for the steady and significant decline in civil trials. 

The Changing World of Litigation
The intense debate about mediation (and other Appropriate Dispute Resolution forms) comes at a time when there are immense changes taking place in the relationship of courts to the public. ADR is not the main force driving these changes, but merely a stream contributing to the broad river of change in how conflict is managed in our culture. For the past decade, some courts have, for example, used rules, such as Fast Track, to discourage civil lawsuit filings.(18) In California, this has contributed to a slight decline in the number of civil lawsuit filings at a time when the population has increased some 25%. The number of civil trials is up about 4% from 1984-1985 to 1994-1995. However, there are significant declines in trials in certain areas: contested divorce proceedings are down 42% from 13,000 to 7,500, non-motor vehicle personal injury, property damage and death trials are down 78% from 4900 to 1100, Motor-vehicle personal injury trials are up a third, but against the number of filings of this type of matter, the increase from 654 to 854 is trivial, for such a small percentage go to trial. (19)

Mediation is in one sense is as old as it is new. Our tendency to resolve disputes privately is part of the heritage of our country(20) and of our Anglo-American legal heritage. From the most remote antecedents of our legal system, we find evidence of procedures to restore to disputants some control over their destiny. In Anglo-Saxon England, from the seventh to the mid-eleventh centuries, parties were given back some measure of control over the outcome of their conflicts. After winner-take-all judgments were "announced to the parties but before they were finalized by oath-swearing, the decision makers often persuaded the losing party to come to terms with the winning party, fostering their reconciliation."(21) Reparations amounts for personal injury, were expressly made subject to negotiation.(22)

Some Conceptual Tools
Judges and those concerned with judicial ADR programs --- faced with pressure from various quarters to reform how the cases before them are handled -- have asked first of all whether invoking mediation might impede access to the courts and make the applicable law of the matter less important in how the dispute gets resolved -- whether justice is done. This is a fair question. To answer it, we must look at our concepts of justice, power and balance. 

Justice
One cannot define justice by what happens in civil courts. The legal community has yet to demonstrate that justice means getting the same result on the same facts in all or even most instances, so despite the assumed certainty, there is more flexibility in the application of law than generally appears.(23) Nor is popular culture which articulates a view of justice that leaves compassion and mercy out of the equation of much help. Justice without compassion is the kind of justice we demand for the Other -- one who is not Us. 

Yet in the great traditions of Western civilization in which we move, justice without mercy and compassion is no justice at all. Trial by jury is itself a protection against too much justice. Current efforts to reform criminal "justice" to take victim and community impacts into account along with impact on the criminal are a corrective to the failure of our more retributive system to reduce recidivism, produce safe streets and allow people to feel safe in their homes. And mediation has a role to play in this.(24)

Justice is symbolized by a woman who cannot see holding a scale and a sword. It is no accident that Blind Justice is a woman. Symbolically, the feminine speaks of whole-seeing -- reason with wisdom. The scale speaks to balance, balance of inner and outer powers, balance of male and female powers, balance of the interests of the individual and society. The sword also carried by Justice is the sword of discrimination and discernment, not the sword of vengeance.(25) Our narrowly articulated view of justice is impoverished, because it is unbalanced. 

When we talk about whether mediation delivers justice, what do we mean?(26) The law after all, is only one factor parties consider in evaluating settlement options.(27) If self-determination is what mediation is about and if the affected parties reach an accommodation that works for them, what interest has a court in questioning that?(28) Perhaps we are looking for justice in the wrong place. Justice is, after all, something we need to look for when people are "done unto." It is significantly less a concern when people "do" for themselves. Protection of the integrity of the mediation process is far more relevant. 

Power
Power is the ability to get results. Yet in our culture, we usually speak of power as if Power Over were the only kind of power that met this definition. We use Power Over's authority, and often fear, to get people to do what we want them to do. We use Power With's reason, persuasion, leadership, enthusiasm to get people to join in a common enterprise which will meet everyone's needs, ours included. Power Over wins peoples hands and uses its resources to keep control. Power With wins peoples hearts and uses its resources to carry out the common purpose.(29)

It is obvious that Power Over is very limited compared to Power With. Yet Power With requires a more broadly defined self-interest and the literature is full of studies showing that we believe people who seek Power With are either weak or clueless. Power With is a feminine power and it is this disregard for the feminine power that is at the root of our problems -- with conflict resolution in general and with mediation in particular.

Western society is afflicted. For more than 2000 years, we've conducted our affairs in an increasingly tightening spiral, with more and more expertise and precision about ever narrower specializations. On the one hand, we have produced technological progress beyond any civilization with whose history we are familiar. On the other, we've increasingly abandoned a balanced relationship to the planet on whose health our very lives depend. We remember, dimly, that every civilization that has ever lived, has died. The question for us is, do we need to die by our own hand? Courts have a role to play in this: by taking leadership in the broadening of dispute resolution resources, the courts can remain the center of focus of dispute resolution activity in the society. If they fail to do so, they will become marginalized, as will lawyers. (30)

The courts are themselves limited, so long as all they can do is order and enjoin. For all of the social ills that have been successfully addressed by the courts, they have, it seems, reached the limit. Courts, after all, have only Power Over. And because of the formidable nature of this power, it is tightly constrained to monetary and injunctive relief which fall far short of the range of remedies available to the parties for their own making, when the discussion is allowed to broaden into a problem-solving process.(31) In a society whose citizens are raising complex problems affecting relationships among many parties and sometimes whole communities or whole segments of society, the limited remedies available to courts are grossly inadequate.(32) This does not argue for broader legal remedies, but for more processes appropriate to the problems and those which tend to bring out the best in lawyers and disputants. It is no secret that the adversary system brings out the worst in advocates and parties.(33)

It takes negotiators and mediators to bring Power With to the equation. It doesn't really matter that narrow self-interest didn't produce satisfactory results in the 20th century or previously. We are beyond the time when we have any choice: inspired, broad self-interest is all we can carry with us into the 21st century..(34)

In the 21st century, mediation and other collaborative processes such as partnering will be the tools of choice in conflict management and lawyers will either be on board or swept aside in the process.(35) How the courts and the legal profession relate to mediation and other collaborative processes will determine the outcome of what is more a birth process than a titanic struggle. 

Balance
A European engineer told me not so long ago at a conference on construction dispute resolution that as he saw it, "our civilization is like a bird with one wing, flying round and round in circles. The other wing is the Feminine. Without it, we cannot fly at all." What he was seeing in Europe, as we are seeing here, is in reality the end of the world of the-way-its-always-been-done. His comment called to mind the story Joseph Campbell said was "the central myth of western civilization." In the Grail Quest, brave knights battle dragons and all manner of evil and find no rest in search of the Grail. But what is the Grail? A vessel filled with blood that gives life -- none other than the sacred feminine. Campbell uses the Grail myth to tell us that what we've been searching for thoughout the history of western civilization is balance. Have we, in the legal community, had enough of horses and armor and chasing around after dragons largely of our own making, saving fair damsels only to leave them, for there is no peace in our souls? 

The feminine is part of all human beings and when we fail to respect its gifts, such as the indirect, intuitive, nurturing and relational, we deny part of ourselves, whatever our gender. The sacred feminine can never be embodied in an individual or even one sex -- the whole universe resides in Him/Her. But we no longer can deny His/Her existence. Until we embrace this fundamental part of our nature, we are hopelessly and destructively out of balance. 

There are three powers of the sacred feminine as described by writer Andrew Harvey that bear on the resolution of disputes through negotiation. The first is a knowledge of the interrelationship of all life, that all life is one. . . Instinctual to this knowledge of unity are respect, gratitude and natural compassion for all animate and inanimate, visible and invisible life. With this power, we diminish the power of appeals to fear based on "they and them" and are called to recognize in others something of ourselves.(36)

The second is the law of rhythm, the knowledge that the universe has its own laws and harmonies which are already whole and complete and which, to live wisely we must intuit, revere and follow. This power recognizes that "to everything there is a season and a time for every purpose under heaven."(37) There is a time to catch the flame of interest in resolving by negotiation, but it isn't all the time or any time. In intense mediations, timing is one of the greatest allies or worst enemies of success, depending on how it is handled. The seasons, the balance of masculine and feminine in the psyche and the forces of nature are other examples. The law of rhythm recognizes that these realities are beyond reason and essentially beyond control. 

The third power of the sacred Feminine, is what he calls love of the dance, in which life itself, in all its paradoxes, is seen as sacred, to be appreciated in all its ordeals and wonders.(38) This power allows us to accept that others, for good and sufficient reasons, do things that make no sense to us at all -- and that's OK. No one made us judge of others' values. 

This deep truths are also expressed in the following Rules of Life I picked up at a recent conference on holistic management in agriculture: 

          Everything is related to everything else. 
          Water always runs downhill. 
          Nature always laughs last.(39)

I see these beliefs and attitudes as essential to a problem-solving approach and essentially inconsistent with confrontation. Farmers are learning to work with Nature and the legal community is learning to work with human nature. Perhaps these two callings are not as far apart as they seem. 

I believe that once we begin defining self-interest more broadly, adoption of cooperative attitudes and collaborative processes follows. That this is not contrary to human nature is demonstrated by the experience of the construction industry with mediation.(40)


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Mediation: Did We Get It Wrong?
By Barbara Ashley Phillips(1)

The Construction Industry Experience With Mediation

Construction litigation provides a unique opportunity to learn how many of the concerns of lawyers and judges about mediation play out in the real world. Construction lawyers are among the most experienced users of mediation in the United States today.(41) Mediation came to the construction industry in 1985, long before courts or lawyers had any interest in either mediation or fast track or had other programs such as the Civil Justice Reform Act urging mediation to secure calendar reforms for hard-pressed courts. How mediation developed in construction provides a window into what mediation offers civil litigation, because it got its start and direction when few if any of those programs were in place. From the microcosm of construction litigation we may be able to learn something of value in the larger universe of conflict management. 

The acceptance of mediation in construction litigation was due to a variety of factors, not the least of which was the desperate situation in the industry provoked in large part by very high interest rates.(42) This affected contractors, subcontractors, architects, engineers, their carriers and their lawyers. The move to mediation was largely spearheaded by Design Professionals Insurance Company, insuring architects and engineers. I was a player in that development. Here's the story. 

Bernard P. Engels, then Vice-President, Claims, and Elliott Gleason, then Assistant Vice-President, Claims, visited my office in March of 1984, in response to letters I had written in October of 1983 and February of 1984. They listened patiently while I explained the mediation process and the benefits of mediation. At the conclusion of the meeting, Engels gave me the fisheye and said, "I don't believe a word you've said. But we're going to do it anyway. We've got to do something." (43)

Elliott Gleason was in charge of identifying the cases. He remembers well his instructions: "I asked the claims staff to pick cases that were at impasse for various reasons: perhaps our insured had no liability but needed a forum to convince other parties of this; perhaps the case was extremely complex technically; perhaps there was a party or lawyer with an attitude involved in the case. Whatever the reason, the situation isn't going anywhere. We wanted to put mediation to the test. I told them to pick some tough ones. The only way we could find out what mediation could do was to try it."(44)

DPIC soon selected 42 cases and sent them to American Intermediation Service, the ADR firm in San Francisco which I had founded in 1982. Our assignment: to get the parties to agree to mediate and to conduct the mediations. Part of the strength of DPIC's trial use of mediation was that it avoided the pitfall of trying -- the blind leading the blind -- to pick the "right" cases to mediate. The cases involved architects, engineers, contractors and subs as well as their lawyers from many states. 

"Within 6 months," Gleason recalls, "we knew we were on to something. The results of the test were amazing. Part of the reality of the 1970's and 1980's was that roughly 1 of 3 bid construction projects ended up in litigation. Construction litigation is uniquely complex, with interwoven issues of fact and law. Principals become actively involved in the litigation activity -- something that takes them away from their business. Experts are commonly used and are expensive. Construction principals had every reason to prefer to spend their time pursuing their business rather than pursuing the business of litigation. Counsel, by and large, were sympathetic. There was, after all, a tremendous amount of construction litigation." 

After about a year and a half, both construction lawyers and their clients embraced mediation, making it part of the way business is done around disputes in that industry. And they went even further, developing collaborative dispute prevention mechanisms such as dispute review boards and partnering that have gone far toward preventing conflicts from even needing either litigation or mediation. This is an extraordinary example of the transformative power of mediation, for I believe that experience with mediation showed participants that there was a better way -- that when things seemed to be at impasse, it wasn't necessarily terminal. These principals with the support of their lawyers then took the ball and ran with it. 

The success and staying power of mediation was demonstrated in DPIC's results for the first four and a half years of their program: 78% of referred claims were accepted into mediation by all parties and of these, 76% were settled.(45) This is strong evidence of the power of a voluntary process when mediation professionals were extending the invitations to mediate.(46) The continuing vitality of mediation in the construction industry is further demonstrated by one of the finest pieces of research into that has been done thus far in the dispute resolution field: the 1994 Construction Industry Survey on Dispute Avoidance and Resolution (Survey). (47) Now at last we have data to support anecdote. 

For lawyers and judges particularly, mediation is something you have to experience. When you have had experience, you know. Until then, you only know about.(48) One of the problems with mediation research has been the narrowness and uniqueness of the fields studied (organized labor/management mediation(49); community and small claims mediation(50); divorce mediation(51)) which defy translation to general civil litigation. Even within these fields, the contradictions are numerous and profound. Many prior studies exclude too many variables that are significant contributing factors to outcomes, making the conclusions seem speculative at best.(52)

The Survey gives us the benefit of the views of participants in mediation, collected in more than 2300 responses from contractors, design professionals and attorneys.(53) It found that almost two-thirds (64%) of the 459(54) responding attorneys had participated in at least one mediation. One in four (24.8%) had five or more mediation experiences; one in eight (14%) had mediated at least 10 times.(55) 95% claimed to be at least "somewhat familiar" with mediation compared to only 62% in a 1990 Survey .(56) About 60% of these mediations occurred within the two preceding years. Amounts in dispute were significant, averaging over $4 million with a median of $1 million.(57)

The attorneys responding in this survey were themselves highly experienced, with 80% having practiced law for more than 10 years and one-third having over two decades of experience. They were also highly experienced in construction: three-quarters claimed that at least 40% of their practice was construction-related.(58) There is also evidence that these lawyers were willing to put their clients' interests above their own: 60% said they would recommend partnering, a process of dispute avoidance in which few lawyers ever become involved.(59) Partnering is a derived in part from recent Japanese/American experience that develops mutual commitment to common goals in an atmosphere of trust and co-operation(60) and seeks to head off problems before they get out of hand. 

In the Survey, mediation resulted in resolution of some or all of the issues in 67% of cases. Full settlement was reached in 59.1% of matters mediated.(61) Interestingly, in DPIC's experience, in the period June, 1985 to January, 1990, 75.8% of claims mediated were resolved.(62) While these are not apples to apples -- DPIC submitted matters not yet in litigation for mediation -- there is one noteworthy difference between the two sets of results. In the Survey, less than 10% of the mediators were professional mediators.(63) DPIC used professional mediators from the beginning.(64) In the Survey, the vast majority of mediators were attorneys.(65) My observation is that although attorneys start out, often, as evaluators which are far closer to law practice experience,(66) if they have aptitude for mediation and do enough of it, they can develop significant mediation process skills. Some then, like the author, leave the practice of law to pursue the practice of mediation. 

One of the puzzling results of the 1994 Survey was the significant agreement among attorneys that mediators should be authorized to express their views on the issues.(67)Evaluating is not part of quality mediation.(68) Not until the next Survey will it be possible to probe this issue with more subtle questions, for the issue is important to the mediation profession. There are many ways to express "views," some of them controlling, many of them not.(69) Self-determination by the parties is the issue. 

Interviews conducted recently with lawyers in Seattle, Portland, San Francisco and Los Angeles support the findings of the Survey and provide additional insight. A Portland, Oregon, lawyer observes: "The percentage of routine construction projects going to litigation is more like 1 in 20 today. With major construction projects, it's more like 1 in 8 to 10, nothing like the 1 in 3 of a decade ago. In the earlier days, there was a kind of Stockholm effect -- a sense of seriousness and commitment that perhaps great familiarity has now reduced. It used to be that 9 out of 10 cases were settling. Now perhaps 7 or 8 of 10 will settle at the time of mediation. The remainder, however, will usually resolve within a month or two after mediation, occasionally after a little more discovery." (70)

In Seattle, another construction lawyer says that: "In last 7 to 8 yrs., there has been a great increase in the use of mediation. At first, mediation was novel. It was warmly received and very successful. About 4 to 5 years ago, partnering and dispute review boards came along. The whole atmosphere in construction became more dispute-prevention oriented. It seemed there was a lot less conflict. A lot more is happening in terms of prevention, rather than conflict resolution. At least 4 out of 5 mediations were successful. Now fewer of them settle in mediation, but still the vast majority. People just aren't as willing to settle. What made it successful was that people had a chance to listen to a neutral party. Now, that's worn off. People don't believe that as much as initially, perhaps because being effective as a mediator is so very, very hard.(71) What the mediator brings to the process is critical to success." (72)

Two construction lawyers from San Francisco and the general counsel for an international construction firm agree that "Most sophisticated business people do not litigate."(73) All agree that major public works may be more prone to litigation, because of the political problems, but find that usually, even these get resolved, often in mediation, without old-fashioned litigation. 

In the view of one San Francisco construction attorney, "perhaps 10% of large commercial construction projects see litigation at all. On large, public works projects or with very sophisticated players like the Corps. Of Engineers and CH2M Hill, the parties are using partnering and dispute review boards and other dispute prevention mechanisms -- these are not without problems. There's an art to making them work. If a Dispute Resolution Board is too expert or sees its role as declaring who's right and who's wrong, it doesn't help keep the job going. 

"Construction law work today really has two components: construction law and construction lite -- shopping centers, condos and residential developments, for example. Construction lite is supported more by the insurance industry than the large public works projects, where major projects where the players have large self-insured retentions. Construction-lite cases are often defended by casualty defense lawyers rather than construction lawyers. They rarely get to good mediation, but are referred to retired judges. I have some ability to route matters away from the special mastering system. But when my client is brought in late, it's already underway and there is so much momentum, I can't stop it. Often, we just doesn't participate in the endless conferences. That at least saves fees." (74)

Another San Francisco construction lawyer agrees: "The retired judges don't insist on compliance with their orders and requests and let counsel and clients opt out of conferences. Those who go perhaps go to just be with the flow. But even general liability carriers get annoyed by being called to settlement conference number eight. My strategy is to go to the presiding judge upon the first contact under Fast Track to persuade plaintiffs' counsel to proceed with a mediation plan, setting forth a time table of activities, culminating in mediation 3 months, 6 months or 9 months later. These plans only get through if we represent owners or general contractors, because design professionals are usually brought in after the special master process is underway. The problem is that most plaintiffs' attorneys are uncomfortable without what they believe is the hammer of the special master. We then agree that if there are disputes under the mediation plan, the disputing parties may go to the special master at those parties' expense."(75)

Insurers report that claims against architects and engineers are down dramatically over the past couple of years.(76) Does this indicate a change in the field, on-the-job? CH2MHill General Counsel Wyatt McCallie thinks so: 

First, litigation is a poor way to make money; second, the construction companies feel it is hurting their relations with clients to be constantly suing people. There is a lot more partnering. The engineers and the contractors have figured out that it's in no one's best interest to be surly to one another. There is more understanding, more savvy, more common commitment to bringing in the project in budget and on time. Engineers also are trying to be more realistic about the demands placed on contractors. I believe that the change is to a significant degree, permanent. It won't go away. (77)
The lessons to be drawn from the construction industry experience are many. Some of the old fears about using mediation were decisively laid to rest. For example, the Survey found that lawyers "overwhelmingly rejected yesterday's popular wisdom that proposing mediation was a sign of weakness or that revelation of confidences or trial strategy was a serious drawback to its use."(78) Nor was there any perceived prerequisite for discovery prior to mediation.(79) There was, however, an appreciation of what focused discovery and informal exchanges of information could do. 
While more respondents found mediation appropriate right before trial (81.7%), a strong majority (60.1%) of those responding favored mediation even in the absence of discovery. . . A number of respondents envision a middle ground in which discovery is limited to that basic quantum of information needed to permit informed settlement.(80)
As I have written elsewhere, parties can negotiate for the same level of authenticity in a voluntary exchange of information as can be secured through discovery, by the simple use of a declaration under penalty of perjury.(81) In this way, pre-mediation exchanges can be trust-building instead of trust-eroding. 

Matters with multiple parties were significantly more like to settle than two party matters,(82) reflecting, perhaps, a realistic assessment of what the alternatives to settling might be. Another lesson from the Survey was that a majority disfavored making mediation mandatory (which in the construction world, would be accomplished by contract), except where large sums of money are involved.(83)

There are larger lessons, particularly for the courts, in the experience of the construction industry. There is no evidence here that judge manipulation of cases with discovery cutoffs, referrals to special masters and crushingly early trial dates do anything but get in the way.(84) Contrast constructive judicial attention: if one or more counsel are recalcitrant -- dragging matters out -- a judge, sensing this, can perhaps hold matters in abeyance until mediation has occurred and ask for a report about how things went. The nudge from the judge is a time-honored tradition and, I believe, far safer to litigants than calendar control orders.(85)

The clear import of the construction industry experience is that motivation is key to success with the non-linear process of mediation. Indeed, there was a statistically significant correlation between success in mediation and parties developing their own rules and procedures for the mediation process, rather than using previously developed canned rules.(86) The process of developing procedures can demonstrate the parties have the ability to agree, which builds trust among them. And trust is the currency of mediation. 

The construction industry experience shows that experienced lawyers and sophisticated clients are more than capable of using a balanced approach to resolving conflicts. It shows that with experience, they can take what they have learned in mediation and apply it in other business settings, thus reducing the need for both litigation and mediation. It is a profound lesson in societal change.  


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Mediation: Did We Get It Wrong?
By Barbara Ashley Phillips(1)

The Challenge For Courts

The move to Appropriate Dispute Resolution takes place in a context of accelerating change including decades of "popular dissatisfaction with the administration of justice."(87) We have learned that as the law becomes more voluminous, more complex, and more uncertain, costs increase.(88) It is a paradox that the greater the complexity of adjudicated justice the more attractive settlement becomes.(89) Criminal cases are claiming an increasing percentage of judicial time.(90) Revenues available to courts are declining and will continue to decline.(91) Civil disputants are being driven away from the courts by demanding rules(92)and gate-closing decisions(93) as well as the way people perceive the controversies that affect them and their involvement in the search for solutions.(94) Civil trials as a percentage of filings are in a long, unbroken slide.(95) And where mediation is being fostered by the courts, its use is exploding.(96)

Many judges, scholars and researchers now agree at least in part with the early vision of Professor Frank Sander that the courthouse must be more than simply a place for litigation,(97) that it is time that courts redefined their role, transforming it from a focus on adjudication to a focus on assisting parties in a variety of ways to resolve the differences that brought them to the courts in the first place.(98) Legislatures in some jurisdictions now allow courts to require participation in mediation and other ADR processes and courts have been pushed hard to do just that.(99) The reality is, courts are already in the alternative -- or as it is coming to be known, the appropriate dispute resolution business.(100)

. . . it is common knowledge that most remedy seeking in the vicinity of courts is going to eventuate in settlement. We share an inescapable awareness that courts do more than adjudicate. They preside over a cluster of dispute processes of negotiation, mediation, and arbitration, some within the precincts of the courts and some at a distance. 

Rather than two separate tracks -- adjudication on the one hand and negotiation and settlement on the other -- there is a single process of pursuing remedies in the presence of courts. For mnemonic purposes, we attach to it the fanciful neologism "litigotiation."(101)

The appropriate question for courts in the vast majority of cases is when, how and under what circumstances should cases be settled?"(102)  Litigotiation isn't the way I would like my dispute to be resolved, nor is it likely to be yours. As widely practiced, it involves a lot of costly effort that only tangentially, if at all, serves to promote a fair negotiated resolution. One major reason for this is rules designed to hurry cases along to trial -- the trial that only a tiny pecentage of them will ever have. Are we not looking at the problem through the wrong end of the telescope? 

Where we are going wrong is that our focus in case management is speeding cases to trial rather than developing resources that bid fair to make much of that management unnecessary.(103) What we are talking about is wise handling of the more than 90% of cases that are going to be resolved without trial -- the vast majority of which will settle.(104) The handling of those cases needs to be appropriate to their journey to settlement. There is still strong need for judicial oversight -- not of the terms of settlement except in cases where the public interest demands it -- but of the processes required of parties as their dispute wends its way to settlement. In this task, giving litigants choices is as good as a magic wand, for it allows the market to test authenticity and credibility instead of courts having to do it. For cases that are going to settle, rules like California's Fast Track look a little like staging a roundup when what is needed is a little grain and a whistle.(105) I admit these rules may be so disconcerting to litigants that they propel them to seek settlement as a means of escape.(106) But is that justifiable? 

To turn the situation around so that courts can bring oversight to bear when and where it is needed, to avoid a lot of hard choices about mediators and mediation to say nothing of occasional appearances of impropriety,(107) only two steps are necessary. 

(1) First, understand and accept mediation on its own terms for what is is and treat it with the respect it is due as the principal resource for dealing with the vast majority of civil disputes that will settle.

Recognize that what courts do with respect to mediation is fostering the development of a new resource for disputants -- a new profession. What is going on is a birth process, not a titanic struggle. Improved calendar management is an incidental side-effect, when it occurs.(108) There is value in allowing the baby to be born whole and complete and at least get to know it on its own terms, rather than trying to reshape it in the image of it's legal system's mom and pop -- arbitration and judicial settlement conferencing. 

Consider how mediation relates to issues compared with the way litigation relates to them. Mediation narrows the issues to those most relevant to the parties ability to resolve and expands the focus to include other concerns so that underlying interests can be satisfied. Litigation draws on the logical and rational side of the brain. Mediation requires a balanced approach, in which the logical and rational are blended with intuitive knowledge, contextual considerations and the ability to deal with emotional side of the conflict. Litigation expands the legal issues, many of which are peripheral, for in litigation, lawyers are primarily penalized for failing to raise an issue, not, generally, for raising too many issues. Moreover, the issues it is concerned with are legal issues not the broader issues parties themselves must take into account. Litigation also narrows the focus within those issues to the legal implications and supporting proofs. A useful model for thinking about this is the Problem-Definition Continuum developed by Leonard L. Riskin which adds to litigation interests, business interests, personal/professional/relational interests and community interests.(109) Mediation's strength is its focus on addressing the full range of issues the parties bring to the table. 

Second, consider what it takes to be a mediator and the implications of asking people to mediate on a volunteer basis. Mediation requires patience, stamina, a wide variety of strategies and skills. (110) The ability to ask good questions, to be silent, a good sense of timing, caring about people, open-mindedness and a commitment to neutrality are some of these qualities.(111) Commercial mediations often last far into the night. To do it once in a while pro bono is an honor. To do it often is an insult, for in our society, the failure to compensate, and even nominal compensation,(112) is a badge of insignificance. 

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."(113) Another lawyer who from time to time serves as a mediator reports that "being effective as a mediator is very, very hard. I don't do a lot of it for that reason".(114)

Courts of general jurisdiction that continue to use unpaid, volunteer mediators weaken their programs. Few cases are referred, in part because judges don't want to take advantage of the volunteers and in part, because it is very hard to build a pool of individuals qualified to mediate when pay is nonexistent or highly inadequate. (115) Florida's volunteer mediators are a special situation. It works because the parties have free choice of mediators and when they go outside the volunteer list, they pay. This gives the mediators with professional aspirations some place to go. Florida has never been averse to compensating mediators.(116) And it works because Florida is blessed with a large retired population, Unlike the experience of other areas, there apparently has been no diminution in interest in serving up to once a week on volunteer mediation panels.(117)

Florida's thriving fee-for-service private sector model of mediation shows what is necessary in order for the mediation resource to develop. The going rate for mediating commercial disputes is now around $125 an hour.(118) There are now 8060 individuals who have completed Florida Supreme Court certified mediation training programs and the court has certified 1636 county mediators, 1478 family mediators and 1758 circuit mediators. There are rougly 100,000 court-connected mediations in Florida annually, of which more than 20,000 are through the circuit courts. This does not include the substantial use of mediation that the courts never see.(119)

Contrast the experiences in Wisconsin and Oregon. In Wisconsin where the work of mediating such dispute was identified early on by a public-spirited group of people as a work of public service which ought to be performed by attorneys volunteering their time pro bono. And so they have. But the caseload has been much, much smaller than in Florida, even given population differences. Wisconsin required work from pro bono attorney-mediators and "a shortage of those willing to put in the substantial time and effort required is only part of the problem."(120) The U.S. District Court for the District of Oregon also uses volunteer attorney-mediators and the program has been so inactive, the District doesn't even bother to keep statistics on referrals.(121)

Both of these programs were early entrants in the ADR program field -- when pro bono was the customary approach. The practice of using unpaid panels is changing, however: 

In a significant shift from past practice, most courts no require parties to pay a fee to the neutral . . . Today, of the forty-one courts offering attorney-based medation, only nine provide that service pro bono (and one . . provides mediation through a staff mediator." (122)
In the further effort to understand mediation, consider how mediators function. Professor Leonard Riskin identifies four types of mediators: evaluative-narrow, evaluative-broad, facilitative-narrow and facilitative-broad.(123) There is substantial feeling within the mediation community, however, that evaluation isn't really mediation.(124) And formal ethical standards seem to be moving in the direction of discouraging evaluations in order to protect the parties' right to self-determination.(125) It is widely viewed as improper for a mediator to give legal advice.(126) Nevertheless, there is still a lot of room for opinion-giving, although in situations where the parties are unrepresented, the problem of vulnerability to influence is compounded significantly.(127) And after all, who really knows what a court or jury is going to do in any given situation?(128)

An example of the different ways mediators work is the use of pressure. After a few years of mediation practice with American Intermediation Service in San Francisco, some of us got together one day on this issue. I had just come out of a mediation session in which I felt like I was putting terrific pressure on a party. I was questioning this with my colleagues when the parties emerged. One of the mediators managed to ask the party whom I had been "pressuring" whether he felt he had been pressured in the mediation. "No," he said. "I didn't feel any pressure at all. It was just a matter of me getting down to what my priorities were and making the best decision I could." 

Mediators use a variety of techniques to pressure parties, but the issue is not whether pressure is used, but what it is directed towards. Lawyers are strong advocates for aggressive mediators who will pressure the parties toward settlement.(129) By training and experience, they believe this is the most powerful approach. Highly skilled mediators think otherwise.(130) If the mediator pressures parties toward an outcome the mediator has decided is best, the parties' control of their dispute is threatened, contrary to ethical mandates governing mediators.(131) If the pressure is directed toward getting a party out of a stuck spot, that in my view is proper. The payoff in mediation comes with tenacity, which in itself, is a form of pressure.(132)

One critical area of concern is how mediators deploy their expertise. It is difficult for one who sees herself as the one with superior knowledge to effectively place the decision-making process into the parties' hands. Indeed, this is one of the key contributions of effective mediation, to use one's mediation skills to help put the parties into a position where they can tap into their own wisdom about how the matter might best be resolved. This requires a high level of personal development -- multi-dimensional growth of the emotional, mental, physical and spiritual aspects described in Maslow's self-actualized person -- not just human relations skills. 

In the early days of construction mediation, many mediators, such as those from AIS were trained by mediation professionals who were not lawyers.(133) We learned that it was the parties' dispute and ultimately the parties' responsibility for resolving it. In one of my first mediations, I was brought in by a company to address a sexual harassment matter involving two managers, I remember calling my mentor, Bill Lincoln, and saying: "look, I've met with the involved parties, the woman's fiancee and the company's president, all separately. We've scheduled a joint meeting between the harassee and her boss, (a 42 year old engineer going on 19, emotionally speaking). But I don't have a clue as to how this matter should come out." "That's just where a mediator ought to be," he said. "Go ahead with the joint meeting: the people involved have the capacity to work out a resolution." And, after a while, they did. The company was able to keep both executives, and two careers were kept viable.(134)

Another question the courts face is "who is allowed to mediate?" Most court program mediators are lawyers.(135) Some are untrained and intentionally so.(136) Others are trained, but not by professional mediators although some are trained by professional mediators and are themselves professional mediators.(137) The Florida experience is instructive in this regard. In Florida, one has always been able to mediate without being a lawyer or former judge, except in the circuit court.(138)

When the Florida program was set up in 1988, mediators could not be certified to the circuit court panels unless they were licensed to practice law in Florida, or were former judges from any jurisdiction, which gives you a sense of the politics of the decision.(139) However, the impact of that restriction was blown away in 1990 when the parties were given the choice, within 10 days of referral to mediation, to select their own mediators, for there were not qualifications or strings on that selection at all. Today, parties select their mediators in 90% of the cases referred to mediation.In my view, this is what has kept the program "honest" and has allowed mediation to retain characteristics it would lose if only lawyers could be mediators.(140)

One of the weaknesses of court mediation programs has been the tendency to value legal expertise in the subject of the dispute much higher than mediation expertise and the qualities that make for highly effective mediations.(141) Most of the federal court programs involve court-certified attorney panels More than 1/3 designate magistrate judges to serve as the primary settlement officers. Where there are court ADR rosters, questions arise such as "Can litigants be confident that the courts' ADR processes will be beneficial or at least do no harm? Do current ethics rules offer real guidance to lawyer-mediators on conflicts of interest, confidentiality and rendering legal advice? Do we need national or local standards for training, ethics, competence and liability?"(142) The tighter the control here, the more pressing these questions become. The principle point to remember is that giving the parties choices about which mediators to use and what kind of process they want, the courts do not need to make decisions about these things, except for their own certified mediator panels. 

(2) Integrate docket management tools with the vision of Appropriate Dispute Resolution, so as to foster quality outcomes.

Justice Olsson of the Supreme Court of South Australia suggests as a framework for mandated mediation that "it must carefully be designed so that it does not take, as its predominant aim, merely the interest of the court in facilitating the effective and efficient administration of its business. On the contrary, it must reflect the proper desire of litigants for an accessible, fair process of dispute resolution, which will produce a quality outcome at an affordable cost."(143) Courts can accomplish more by letting things happen than by making them happen. If that sounds weak, it's because we're using the wrong paradigm -- the Power Over paradigm rather than the Power With paradigm. A rules review is a good place to start, checking to see whether what is being done serves the purpose of fostering development of a healthy, ethical and professional resource for disputants. 

An example of the clash of old ways of doing things and the search for appropriate dispute resolution is the use of special masters. It is obvious that what the courts favor, in terms of outside resources, prospers. An example of this is special mastering in California where there has been something of an explosion in the use of special masters for discovery and for settlement. Indeed, today, discovery mastering is all but mandatory in many California cases. 

Mediation-knowledgeable lawyers and claims professionals in the construction field as well as the courts abhor the situation. "It is far less efficient than mediation," says attorney Jane Pandell of Walnut Creek. " We've usually been able to get excused from the proceedings, but there are serious problems. Orders aren't enforced. Principals don't appear at settlement conferences -- who would, at the sixth, seventh or eight settlement conference? The settlement masters are usually retired judges, often lacking mediation skills though perhaps highly familiar with litigation. Our strategy is to present a mediation plan at the first Fast Track hearing. But If we represent a design professional, the mastering program is already well under way. Fortunately, that hasn't meant a great increase in expense to our clients -- mostly just delay."(144)

Former DPIC Claims manager, Judy Mendoza, speaks even more strongly: "It's an expensive and time-consuming waste of time. A lot more progress could take place with real mediation."(145) When muscle is needed, the trial court is where to go for it. Or one might go to a special master just for one ruling in order to clear a road block. 

The California courts are not blind to the problem of the possibility of judges on the bench feathering their nests when they retire to private ADR practice. In McMillen v. Superior Court, plaintiff's counsel sought a writ of mandate vacating an order requiring the law firm to pay a share of the referee's $42,000 in fees, despite the client's objection to the reference and a failure by the trial court to find that the fees were reasonable and necessary and that the party had the ability to pay. In dictum, Judge Miriam Vogel observed: 

In 1993, Division Two of our court observed that discovery referees have become indispensable 'in the prosecution of a lawsuit,' that we have seen the last of the days when 'discovery disputes were presided over and resolved by the trial courts,' and urged the trial courts to 'take responsibility to form a fair means of discovery dispute resolution which takes into consideration the financial status of parties. (Solorzano v. Superior Court, 18 Cal. App.4th at pp. 614, 616. In the three years since Solorzano was decided, our colleagues' plea for vigilance has been generally ignored. Indeed, we have seen an increased number of references to an exponentially growing number of available retired judges, and a dramatic increase in hourly rates and total billings, leaving those of us who remain in the public system to address the problems inherent in the creation of a second, separate judicial system. . . . 

This case demonstrates an unacceptable aspect of the reference process when it is thrust on an unwilling participant. What began as a lawsuit by an employee against his former employer has turned into a nasty dispute between the plaintiff's lawyer on the one side, and the trial court and a retired judge on the other. To say we take no pleasure in judging the judges is to understate our reaction to the briefs we have reviewed in this case. To say that the judicial system is suffering from the competition among and the conduct by some private judges and mediators is to state the obvious. (See., e.g., Evans, Pay-As-You-Go Justice (Nov. 1991) 11 Cal. Law. 108; Bigelow & Chernick, Practice Before a Discovery Referee (Mar. 1992) 15 L.A. Law. 30; Reuben, The Dark Side of ADR (Feb. 1994) 14 Cal.Law.53); Note, Private Justice: How Civil Litigation Is Becoming a Private Institution - The Rise of Private Dispute Centers (1994) 23 Swl. U.L.Rev.621; Yamamoto, ADR: Where Have the Critics Gone?(1996) 36 Santa Clara L. Rev. 1055.)(146)

McMillen may have marked the high water point of judge referrals of cases they just don't want to deal with. This was a wrongful termination case such as typically settle in early mediation. Experienced counsel in places as different as Portland, Oregon, and Los Angeles, California routinely take these matters to mediation with little discovery -- at times even with no suit filed -- with a settlement rate above 80%. One lawyer who usually defends these cases, at times uses signed statements of facts from each side in lieu of a one day deposition of the plaintiff, in order to get some things nailed down before the probable disclosures in mediation that might shape testimony in the unlikely event the matter doesn't settle.(147)

McMillen is instructive on this, for it shows that too much control by the courts in requiring specific ADR procedures and specific providers can be perceived as self-interest in the judge. In this way, it makes the courts' job more difficult, by necessitating the creation of procedures that prevent even the appearance of self-interest. It is also an example of using the power to make an order to cut the parties out of a meaningful opportunity to participate in the selection process and decide just how extravagant they want to be. 

First, parties don't have a chance to choose something other than special mastering. If they are truly looking for assistance in settlement, the evidence suggests they will choose mediation. If they are looking for assistance in resolving a discovery dispute, they may well choose a special master. They have a lot more information than the judge from which to make this choice -- information which is unlikely to wend its way from the party through counsel to the judge, since it may be confidential. 

Secondly, they have no choice as to who the neutral will be. Neutrals get a reputation among their clientele that may well be unknown to the judge who is less concerned with such things. Moveover, by making these choices the parties can actually improve their odds of reaching resolution,(148) And they are choices that by their nature lay to rest any suspicion of self-interest on the part of the judge. 

Another key issue is voluntary vs. mandatory. It's plain that voluntary programs are not effective in teaching courts enough about mediation that they will use it.(149) Lawyers are simply not familiar enough with the process of mediation to make informed judgments, in many areas.(150) But there is mandatory and mandatory. There is substantial evidence that without mandatory referrals, nothing happens. Despite the recent ABA/Gallup poll of ABA lawyers which equated support for mandatory mediation with support for mediation,(151) I believe the overwhelming preference of professional mediators is that mediation be voluntary. Carrots, perhaps, but not sticks. You can have it both ways by providing the parties with a way out: either by opt-out provisions such as Oregon uses or by private mediator selection without regard to the court's list, such as Florida uses.(152) The same principle should apply to special mastering. 

If the parties decide to mediate, they also need free choice of who to use as a mediator or special master. Oregon has considered this: 

The parties to a dispute that is referred by the court to mediation may choose, at their option and expense, mediation services other than those suggested by the court, and entering into such private mediation services shall be subject to the same provisions of ORS 36.180 to 36.210.(153)
The question is how and for what purpose mandatory referral to mediation is used. In the Florida program, all the parties need to do when mandated to mediation is to show up and listen through the mediator's opening statement. When programs aren't so clear about the requirements, mediators, themselves, can sometimes take the curse of being forced to attend off the proceedings: at the 1996 SPIDR annual conference, in the program, "Mediating With Difficult People," experienced mediators in many different arenas concurred that they routinely convert mandatory into voluntary proceedings by offering to sign whatever paper reluctant parties or counsel were required to get signed, whether or not there was a mediation. The effect of this, almost invariably, was to allow a voluntary mediation to then proceed.(154)

The recent experiment in the Western District of Missouri shows how one court did it. A large, random selection of cases was divided into 3 groups: one which had to use ADR, one which could not use ADR and one which had a choice to use the court's mediator, the lawyers ate it up. Within 6 months, there were 150 cases referred to mediation and lawyers were complaining about the cases that had been excluded from mediation. The experiment was an inspiration in many ways. First it used a trained, experienced, well-paid mediator(155) who apparently could deliver the goods. Second, it used the stick effectively to introduce the bar to the process. And third, by creating a barrier for some cases, it taught the lawyers to value the resource. 

Florida's mandatory mediation program allows the parties 10 days after referral to mediation to select their own mediators with the result that by 1996, the vast majority were selected by the parties.(156) And the mandate only requires the parties to attend the mediation through the mediator's opening statement. They are free to leave, if they wish, after that.(157)

The risks of mandatory mediation are small -- even smaller with an opt-out and a private choice of mediator -- given the trivial cost of mediation(158) and the small amount of time it requires, provided other important rights are not infringed upon by mandated mediation. The American Board of Trial Advocates (ABOTA), an organization of exceptionally experienced trial lawyers, watches the development of court-annexed ADR programs with interest. Their role is to protect the 8th Amendment, our right to jury trial. As yet, they have found nothing to resist in mediation programs.(159)

Requiring mediation is like going through a screening checkup to determine whether, in fact, trial is necessary. It does very well at that: a good mediation will show which cases need to be tried. If, indeed, the cost is modest (relative to other costs required by the dispute and also ability to pay) and the time involved short, how is that worse that spending half a day sitting in court waiting for your matter to be heard? 

There are many more ways courts can work with mediation. Mediation could do much to help courts deal with emotional and interpersonal problems that courts are poorly equipped to handle -- something much in evidence in Small Claims Court proceedings. In sitting through a calendar in an Oakland, California, small claims court, recently, I was struck by how much more effective pre-hearing mediation would have made the judge -- who was actively questioning litigants to get a sense of their claims and defenses, at times at the sacrifice of really listening to what the parties had to say which might have taken his thinking down a different track. Mediation could have allowed for venting by the parties, defined and narrowed the issues and identified the agreed-upon facts for the parties to present to the court, as Lon Fuller wrote, by "helping parties to achieve a new and shared perception of their [situation, there occurs a redirection of their attitudes and dispositions toward one another.(160)" It would likely, in most cases, have reduced the exaggeration and antagonism and victim role-playing the judge had to struggle through and improved the quality of justice in those matters requiring the judge's attention.

The flowering of mediation as an early intervention strategy, as the envelope for managing the resolution of disputes, is largely yet to be realized.(161) With some exceptions, mediation is still primarily an end-game, used when most of the time-consuming, fee-generating, client-burdening discovery has been done. On the whole this approach is indicative of two aspects of the parentage of late 20th century civil lawsuit mediation: 

(1) court programs have tended to remake mediation in the litigation paradigm where something called "mediation" is in fact court settlement conferencing: more formal, more advice-giving than process-oriented, and less respectful of the parties' wisdom, needs and interests and 

(2) courts' focus on mediation as to save money and time in this era of declining revenues has made it difficult to recognize and provide mediation with the freedom it needs to do what it does well.

The experience of the Illinois 17th Judicial District is pertinent here. The program, begun in March of 1993 has seen more than 500 cases mediated with an overall agreement rate of 61%. Each year the agreement rate has increased and for 1996 is 68%. Mediators are exhibiting a lot more subtly and skill. Participants are coming in more with the intention of resolving the dispute now. In general, even those cases not successfully mediated: there seems to be a change in the culture in the community. There is a greater air of respect and civility in the courtroom, so that even people who have that sort of reputation are less on edge."(162)

A final question here is should court-appointed mediators give opinions. This is a thorny question particularly where parties can only select from a court list and where there are unrepresented parties. A court-annexed staff mediator would know about as much as anybody about what might happen to the matter in trial, In making a decision to go or to forego trial, there is benefit in knowing how a court generally disposes of certain matters. Yet even with that exposure to a court's processes, is the opinion likely to be valid? The legal community has yet to demonstrate that justice means getting the same result on the same facts in all instances. There is more flexibility in the application of law than generally appears.(163) Unrepresented parties who are given a staff mediator's predictions trade the predelictions of the evaluating mediator for the predelictions of the judge, which may or may not be the same.(164) Obviously, it depends on the case, for routine cases are much easier to gauge than unique ones. The question is, does this expertise and the responsibility for dispensing it properly reside in the mediator? 

Particularly where parties are unrepresented, it would seem important that court-required mediations should provide parties with access to someone, such as a legal resource person, who has knowledge of the law and how it is likely to be applied to the situation at hand.(165) There is value in having this someone be a neutral expert and not the mediator. For one thing, the parties are then more free to decide if they want that advice. There are certainly situations where they might prefer to not have it -- for example, a party already advised the law is heavily against them with another party, more interested in the fairness of a resolution rather than strict compliance with the law. If the advice is sought and the neutral expert participates, the mediator remains in possession of a high level of trust, rather than risking it by articulating a view of the law which is contrary to one party's contentions. Also, the mediator can have the parties reasonably simmered down and focused, so that the legal advice-giver can give meaningful advice. Then the mediator could, through questioning in caucuses, help the parties evaluate the information given. In addition, there are times when a settlement even without regard to legal rights makes sense: see "the Stolen Purse" mediation(166) for maintaining customer goodwill, cutting procedural costs and a variety of other reasons. Using a type of mediation that attends to human needs, but keeps legal information available, commends itself. (167)

The judge who introduces mediation to counsel needs a good understanding of human nature and be focused on motivation. Counsel often need to be introduced to mediation with a light touch -- humor, blended with recognition as well as training and fellowship opportunities. Also, if the court respects the scheduling of the neutral process by giving precedence to an already set neutral proceeding over a subsequently scheduled court hearing, this telegraphs its importance to the lawyers.(168) It's a new day and the courts and lawyers and mediators are all in this together. 

Courts may welcome a respite from having to administer cases that will never be tried,(169) except where there is good and sufficient reason for the court's ministrations. There are research-based arguments being made to tighten judicial control on matters in litigation, but in my view, they lack a sense of the big picture.(170) I believe that when the case management rules are blended with the vision of Appropriate Dispute Resolution, courts can, by relaxing their hold on the tiller, find that the ship rights itself and that the public is fully protected in the process. 

The challenge for courts is to loosen up enough so that the lawyers and parties begin using mediation on their own. Make mediation mandatory, but leave an opt-out and a window for private choice. Have a court panel of mediators, but give the parties a chance to go to mediators of their own choosing. Shutting non-lawyers out of mediation work will only drive litigants away from the courts and from lawyers. Seek to understand how, by participating, they enrich the process for everyone. Respect the process of mediation by giving mediation dates equal weight with court dates. Respect the settlement-going path of cases by adjusting case management rules and procedures to facilitate settlement efforts rather than thwart them. Take training in mediation from professional mediators so that you come to understand something of the power and needs of the process. And take some time off. Judging need not be an endless stream of paper, and horsing reluctant, obnoxious lawyers around. 


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Mediation: Did We Get It Wrong?
By Barbara Ashley Phillips(1)

The Future of Lawyers

Many lawyers initially approached mediation with great caution. The first fruits of their interest was often short and ill-informed articles on the importance of knowing when not to mediate. There was a desire to put brackets around what were seen as extravagant claims for mediation of civil lawsuits. It is no secret that volulntary court mediation programs have gone nowhere. Yet where client pressures or court mandates have forced lawyers to have experience with mediation, we find that increasingly they seek it out on their own and embrace it as an effective tool for handling clients' disputes. 

Mediation provides significant opportunities for lawyers to drawn on their deeper strengths. With mediation, lawyers can help clients move from stuck places to wherever they go from there. I believe that all good lawyers have the ability to draw on wisdom and compassion and enjoy it. Confrontation and adversarial behavior exhaust us and those around us. Using collaborative skills enriches us, for in the love and respect we show to others, we ourselves are nurtured and replenished. I was one of those women who learned to function "in a man's world," when I first came to the Bar. In looking back on those years, I see myself as an advocate more comfortable with argument than persuasion, a word-slinger in a tradition as old as that of the western gun-slingers. 

In the increasingly demanding practice of law, lawyers are the ones who are suffering. In 1990, the Young Lawyers Division of the American Bar Association did a survey on career satisfaction. Between 1984 when the previous survey was done and 1990, there was a 1/3 decrease in those reporting they were very satisfied with the practice of law(171) Of lawyers admitted to the bar since 1967, 1/3 reported dissatisfaction with the practice of law.(172) In California, in 1994, in response to a survey by The California Lawyer magazine over 70% of respondents said they would not go into law again if they could begin their careers anew.(173)

In a follow-up survey, in 1995, less than 15% of lawyers in private practice in firms of 3 or more lawyers reported they definitely would not consider a job change.(174) Negative experiences reports went up in all categories, with the highest incidence found in lack of time for self and family, which went from 82% to 94% of those reporting. (175) In The Report of At the Breaking Point, this problem was described as "The Time Famine", in which 50% of all lawyers in private practice now working 2400 hours a year or more and 45% billing 1920 hours a year or more. What is lost in all this work is the opportunity for development of the whole person through non-law education, association with others in various contexts, even reading.(176).(177) Yet such development is essential to the full-flowering of any professional. 

Service to clients is impacted as well by lawyers' increased levels of mental and physical distress.(178). More than 70% of those surveyed reported observing lack of courtesy and incompetent representation at times. Nearly one-fourth reported encountering lack of courtesy often,(179) which means that lawyers abrasiveness is doing anything but making the resolution of clients' concerns easy. 

Contrast this with the observation by a senior San Francisco lawyer who told a colleague recently, "Practicing law is a lot more fun since mediation came along."(180) Can it be that mediation can bring levels of career satisfaction to beleagured lawyers? The question is, how do we want our lives to be? Are we willing to seek balance in service to clients and in life as a whole so we can bring more to the process than a piece of fatigued metal and can understand and build synergy? Like passengers on an airliner, we need to put on our own face masks first, before helping others. Balance in lawyers' lives is part of that process. It teaches us to look for what is right is a situation, rather than forever looking at what is wrong. We can build on what is right and find common ground to resolve conflicts. 

The world we live in requires more of us than mere knowledge of the law. We can no longer rely for our future on being the gatekeepers of access to dispute resolution. But the decline in trials and by inference in work for advocates is itself a neutral fact: the question is, how do we respond? Some, surely, will suffer a decline in business(181) though even that may be temporary. It depends on how we see ourselves and how we manage to be useful to clients. I know from experience that lawyers can contribute greatly to the public good and their own prosperity, by becoming experts in the selection of mediators and the use of mediation to help clients make decisions that in the long-term serve their best interests. The question is, will we? 

Lawyers have a chance to be part of the new processes, new marriages of expertise and action and new institutional structures that are being built far from the courthouses. As B. Stephen Toben, program officer for the William and Flora Hewlett Foundation, wrote recently, 

Private dispute resolution mechanisms are destined to replace the courts as the primary vehicle for regulating civil disputes in this country. The de-funding of government generally, coupled to the skyrocketing criminal caseload, means that courts in the 21st century will not be able to provide an adequate forum for civil litigants. . . .. In the race between those who advocate for professionalization of the dispute resolution enterprise and those who insist on democratization of the movement, the outcome appears too close to call. However, what seems certain is that attorneys, who historically have dominated the market in disputes, will be forced to share the stage with a variety of other professionals.(182)
We can take this as an act of war or as an invitation. It is good to remember that law practice was at one time far more general than we imagine possible today. Isn't it good to know that there may still be a place for generalists and for people who are experts at problem-solving more than advocacy? 

back to the top



Mediation: Did We Get It Wrong?
By Barbara Ashley Phillips(1)

Conclusion

To reclaim mediation's potential is to recognize its inherent credibility as a forum for negotiation and problem-solving, be open to its potential for transformation, seek to understand how its inherent balance can leaven the entire field of dispute resolution, learn to respect what great mediators bring to the process, and respect the need for voluntariness where we can. Mediation is a balanced process, more feminine than adjudication, yet powerful. 

It is obvious from the patchwork results of court programs that courts and lawyers have a lot to learn about motivation. The construction industry shows what motivation can do and how litigants and their counsel, once educated in the powerful process of mediation, can fight to keep it, despite routine referrals to special masters who don't have mediators' settlement focusing skills. 

Two larva worms, about to go into the cucoon stage, were sunning themselves one day out in the garden. As they rested there, a shadow passed overhead. One worm looked up and saw the most beautiful thing he had ever seen -- a big, beautiful butterfly. "Wow," he said to the other worm. "Did you see that?" "Harumpf," replied the other worm. "You're not going to get me up in a contraption like that." 

THE END


Copyright © 1997, American West Institute for Conflict Resolution. All rights reserved. Reprinting only with written permission.

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. 

9 Galanter 

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).. 

18 CITE 

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.") 

89 Id. 

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.") 

91 CITE 

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.) 

105 See 

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."


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