In talking recently with a friend and fellow attorney about the kinds of mediators most lawyers and litigants are looking for, I realized that most of what passes for mediation these days is not mediation as I would define it, at all. First there is arbitration-style mediation. You go to a retired judge or similar knowledgeable authority figure. One side presents their case to the mediator. Then the other side presents their case. Then the mediator tells you what he thinks the case is worth. The only difference between that style of mediation and arbitration is that the parties are free to take the mediator’s opinion or leave it. But they have never really communicated with each other, and they have never explored any issues beyond those that would be admissible in court.
Another prevalent mode is settlement conference-style mediation. In that kind of mediation, the parties, generally in separate rooms, present their offers and demands to the mediator, who dutifully carries them to the other side. The mediator might try to persuade the parties to raise their offers or moderate their demands, and the parties might argue their cases a bit to the mediator, but the mediator’s main function seems limited to sparing the parties the trouble of having to negotiate with each other face-to-face. There might be a bit more (indirect) communication in this model, but it would still be unusual to delve into issues beyond those the parties and their lawyers consider relevant to the case. LA mediator Jeff Kichaven circulated an article recently in which he characterized these sorts of mediation as “gray” mediation, meaning that they encourage passivity; they resemble death. He encourages attorneys to take a more active role in serving their clients in mediation, and also to seek out mediators who do more than just messenger the parties’ offers and demands back and forth across the hall.
When I expressed to my friend my view that most of what passes for mediation these days does not strike me as the real thing, he asked about cases in which the parties want to have no further relationship, and the only issue is the amount of money the defendant is going to have to pay the plaintiff to settle the case. Doesn’t it make sense to go to an evaluative-type mediator, or a shuttle diplomat, to pressure both sides to reach a settlement in such cases? My response to that: it’s never just about the money. The point of true mediation is to give the litigants a real chance to express their grievances and explore issues they consider important, and to make sure that their concerns are heard by the other side. If we don’t give people that chance to be heard and understood, all we are doing is browbeating them into a settlement to avoid the high cost of litigation, or providing them with a quick and dirty approximation of the full judicial process they started off seeking. Those methods should not be enough to satisfy most litigants, and they are not likely to result in good and lasting settlements either.