North American Institute for Conflict Resolution - Mediation: Did We Get it Wrong?

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 20^th 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 17^th 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 21^st 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?

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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

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