I was interviewed the other day for a possible article on court-ordered mediation. In discussing this topic, it’s hard to avoid talking about such questions as settlement rates in various kinds of programs, or how mediation programs affect the workload of the courts. We are looking for statistical measures of the success of mediation as compared to other means of resolving cases in court (settlement conferences with judges, arbitration, neutral evaluation, lawyer-initiated settlement discussions, disposition by motion, trial, etc.) That also tends to be the way that judges measure the value of court-connected or private mediation programs. We can’t help but wonder which method gives you the most bang for the buck.
But those kinds of measures only tell part of the story. Mediation has greater value than providing an efficient means of resolving cases. If that were all we cared about, we could probably devise even more efficient methods of resolving cases, say creating a computer program that could recommend a case’s outcome, or tossing a coin. But the purpose of courts is not to reduce their workload, or even to dispose of cases. The purpose of the justice system is rather to allow litigants a chance to have their concerns heard, and to have their disputes resolved in a fair way. And mediation can probably do that more often than the courts can. In most cases resolved by the court system, the parties never get the chance to tell their stories, or have them heard and understood. Few cases go to trial, and the vast majority that don’t are probably getting resolved in ways that do not allow much party participation. In addition to providing that opportunity for party participation, mediation also teaches participants ways of dealing with conflict that can empower them to resolve future disputes without the intervention of a higher authority. To assess the value of these kinds of intangible benefits, I would put more stock in surveys of party satisfaction, rather than relying solely on statistical measures of disposition rates.
I had a similar reaction yesterday at SCMA’s fall conference when I attended a panel on restorative justice. In evaluating restorative justice programs, we tend to pay attention to such performance measures as recidivism rates, or to the disparities in treatment experienced by different ethnic groups in the traditional justice system. And those kinds of statistical analyses are undoubtedly important. What they don’t tell you about, however, are the qualitative differences between an authoritarian system based on rules and punishments, vs. a system that relies on obtaining the offender’s agreement to make it up to the victim in some way. It seems to me we might prefer a system that puts fewer people in jail and inculcates a greater sense of personal responsibility, even if it didn’t achieve better results in terms of reducing crime rates. But we demand measurable results also, in addition to whatever intangible benefits accrue from a consensual, party-centered system. Fortunately for the field of restorative justice, it can demonstrate some impressive statistics in reducing the costs of crime, as well as beginning to transform the culture of the criminal justice system.