In the past two decades, the use of mediation in legal disputes has increased dramatically. State legislatures have enacted statutes authorizing, and in some cases mandating, courts to order cases to mediation. In some areas, the use of mediation in litigation is so routine and accepted that lawyers do not wait to be ordered into mediation, but initiate mediation themselves. Indeed, in some places, mediation has become so much a part of the litigation process that lawyers may refrain from direct, unmediated negotiations, anticipating that they will conduct their negotiations in mediation. As court planners perceive growth in the volume and complexity of their caseloads and that their resources do not keep pace with that growth, it seems likely that many courts will find it increasingly attractive to order large numbers of cases to mediation. Where mediation becomes routinely integrated into litigation practice, we can expect that this will significantly alter both lawyers' practices in legal representation and mediators' practices in offering and providing mediation services. I describe this new dispute resolution environment as a "liti-mediation" culture, in which it becomes taken for granted that mediation is the normal way to end litigation.
This Article sketches out some aspects of both lawyering and mediation practice that may be affected by development of a liti-mediation culture. Part II examines the growth of the private market for mediation and an accompanying specialization of mediation practice. These changes seem likely to require mediators to develop market niches with identifiable characteristics of their mediation practices. Simultaneously, lawyers, as regular buyers of mediation services, will be expected to recognize and make decisions based on significant distinctions between mediation providers. Part II describes some of these distinctions that may evolve in the mediation market, particularly focusing on differences in various mediation goals and styles. The institutionalization of a liti-mediation culture is likely to generate generally accepted vocabularies that reflect and reinforce such differences within local mediation markets. Part II speculates about the language that will be used to portray varied species of mediation in a liti-mediation world. Although proponents of competing mediation philosophies understandably seek to define the language and practice of mediation in their own terms, I advocate for pluralist local mediation cultures in which differences are clearly identified, respected, and valued.
Part III focuses on an important distinction between mediation practices. Much of the current ferment in the mediation field deals with a distinction between "facilitative" and "evaluative" approaches to mediation. A related distinction is between "empowerment" (or "transformative") and "settlement" approaches. In Part III, I maintain that the essence of facilitative and empowerment approaches is a high priority devoted to promoting the principals' exercise of their decisionmaking responsibility by eliciting what I refer to as "high-quality consent" to their agreements. Part III analyzes how the concept of "empowerment" has been used and contrasts it with the minimal standards of consent required to create a legally enforceable agreement. Rather than achieving the minimal standards needed to settle a dispute, proponents of empowerment aspire to help principals achieve a higher standard of consent, what I call "high-quality consent." As this can be confusing to apply in practice, Part III identifies a set of concrete mediation tactics that may promote—and be indicators of—this approach. These tactics include: (1) explicit consideration of the principals' goals and interests, (2) explicit identification of plausible options for satisfying these interests, (3) the principals' explicit choice of options for consideration, (4) careful consideration of these options, (5) mediators' restraint in pressuring principals to accept particular options, (6) limitation on use of time pressure, and (7) confirmation of the principals' consent to selected options. This set of tactics is offered as a cluster of factors that might be used to create a continuum of the quality of consent and not as absolute or necessary requirements. Although these tactics for eliciting high-quality consent may not be the norm in practice, even by practitioners who subscribe to this philosophy, they reflect the ideal to which much mediation theory aspires. Part III asserts that this standard for evaluating mediation processes is important for two reasons. First, this dimension may be an important distinguishing feature of mediation practices in the mediation marketplace described in Part II. Second, it is an important variable of mediation that is likely to be affected by the participation of lawyers as described in Part IV.
Part IV considers how the routine incorporation of mediation in litigation may affect both processes. This Part analyzes these possibilities by examining how the active participation of lawyers in mediation may alter the constellation of relationships of professionals and clients in a legal case. Regular participation of lawyers in mediation is likely to result in ongoing relationships between mediators and lawyers that may overshadow their respective relationships with the principals and dramatically affect the mediation process. As a result of the prominent role of lawyers in mediation, mediators may feel especially obliged to cater to the lawyers' interests, which often entails pressing the principals into settlement. The participation of lawyers may increase time pressure in mediation, putting additional pressure on principals. Moreover, extending lawyers' norms of adversarial bargaining and "client control" further adds to the pressure, all of which may undermine the quality of principals' consent.
Part V integrates the analysis of how the dynamics of liti-mediation culture may affect both lawyering and mediation practices. In Parts V and VI, I contend that the possible changes in lawyering and mediation practices outlined in this Article are contingent upon the values, attitudes, and decisions of a wide range of actors, including mediators, lawyers, law school faculty, legislators, judges, court administrators, and the general public. I suggest that we are now in a critical period regarding these changes because they are likely to crystallize for an extended time—albeit with significant local variations—after the current period of institutionalization. I conclude with suggestions for developing the mediation field in the future.
As the private market for mediation has grown, there has been an accompanying specialization of mediation practices. Mediators vary greatly in their training and experience, areas of expertise, and styles and techniques, among other characteristics. For mediators and buyers of their services (often lawyers) to make the mediation market operate effectively, it is becoming increasingly important for the buyers and sellers to accurately identify relevant distinctions between mediators. Part II.A provides an overview of how mediation buyers may go about shopping for a mediator in a liti-mediation culture typified by a large pool of increasingly specialized mediators. Part II.B describes two important dimensions that may differentiate mediators: their primary goals and techniques. Part II.C analyzes a controversy within the mediation field over what philosophies and styles may be appropriately called "mediation." Contrasting what I describe as a "single-school" position, which favors a relatively narrow and pure definition of mediation, I advocate a "pluralist" view that accepts the legitimacy of a broad range of mediation practices as long as they are clearly described to prospective mediation buyers.
There was a time not long ago in the modern ADR era when the use of mediation in legal cases was extremely rare. It was so rare that some early mediating practitioners themselves did not have a name for the procedure. In a relatively short time, mediation has become so widely accepted that it is now enshrined in many statutes and generally viewed positively by lawyers, who are especially important actors in our adversarial legal system. Indeed, even though some statutes only authorize, but do not mandate, use of mediation, some courts routinely order most cases on their dockets to mediation. In areas where mediation has become a regular part of the litigation process, key actors in the legal system (such as judges, court administrators, and lawyers) may take it for granted that settlement negotiations will primarily take place in mediation. Shifting from a predominant culture of "litigotiation" that Professor Marc Galanter described a decade ago, we may be developing what might be called "liti-mediation" cultures in some areas where it has become taken for granted that mediation is the normal way of ending litigation.
In recent years, liti-mediation culture has expanded from what some might consider the isolated "backwaters" of low-status cases in areas like family law and small-claims court into the "heartland" of litigation, including legal disputes of virtually every kind. Thus, a well-developed liti-mediation culture requires a market with both a substantial variety and volume of mediators to provide a range of acceptable mediation services. Full-fledged liti-mediation cultures are especially likely to develop in larger urban areas where there are greater caseload pressures and difficulties in reaching resolution because of more tenuous relationships between lawyers and the clients themselves. Under these conditions, the pool of mediators is likely to be relatively large and characterized by relatively distant and professional (rather than close and personal) relationships with the various actors in a case.
In this market, both buyers and sellers of mediation services need to identify and distinguish differences between mediators. This is an important concern for both the buyers and sellers. For the sellers (i.e., the mediators and mediation businesses), regularly attracting new clients is obviously necessary to stay in business and prosper. Thus, it is not surprising that workshops on marketing techniques are perennial favorites at conferences for mediation practitioners. In a large, diverse, and somewhat impersonal market of mediation services, buying those services considered appropriate for particular cases is an important and difficult task, which is often performed by the principals' lawyers. The lawyers are repeat players who become familiar with the disputing practices and practitioners in their community and thus are usually in a better position than their clients to serve as expert shoppers for mediation services.
How does one shop for a mediator? I suspect that to a large extent, buyers of mediation services use processes similar to those of buyers of other professional services. Presumably, one of the first things that buyers do is identify mediators who have previously worked for them or trusted members of their networks of professionals. For some buyers, the search may begin and end there. Expert shoppers have probably worked with and developed this kind of information about numerous mediators, especially in liti-mediation cultures. Thus, even these buyers are likely to need additional information. Does the mediator have much experience (or, better yet, specialize) in the general type of case involved, such as family, personal injury, or perhaps more obscure categories of cases? Does the mediator have some kind of certification? Is the mediator a former judge? Of course, shoppers may also be sensitive to differences in the level of mediators' fees both due to an intrinsic interest in costs and as a proxy believed to indicate the quality of services. In cases that are, or might be, litigated, the significance of mediation charges is likely to be more symbolic than financial, considering that the differences in mediation costs are likely to be relatively small in the context of total litigation costs. Note that the criteria described in this paragraph are fairly standard, objective, and easy to ascertain.
Given the substantial populations of mediators in many markets, however, these criteria may not be adequate to weed out enough mediators to narrow the shopping search sufficiently to select a particular mediator, or these may not be the primary criteria that some buyers use. No doubt, some buyers will be very interested in whether particular mediators are more or less sympathetic to some types of parties (notably those with characteristics like the principals in a given dispute) and thus whether they are truly impartial. Although classic mediation theory requires or assumes that mediators are impartial, certainly many lawyers and principals hope that a mediator will be especially helpful to their side. For example, in mediation of tort cases, mediation shoppers may wonder whether the mediator tends to favor plaintiffs or defendants. If the opposing party or lawyer is "difficult," can the mediator effectively "handle" them? If there are cultural differences between the parties, is the mediator sensitive to these differences? While all these distinctions may be helpful, mediation buyers may be especially interested in distinguishing mediation services based more on what mediators actually do in mediation. In the next subpart, we consider some differences in mediators' styles and philosophies.
Mediation buyers will often want to distinguish the working styles of the mediators and match them to the perceived needs in particular cases or to the buyers' own general preferences about mediator styles and goals. This is where empirical research on mediators' promotional communications about their styles and especially the buyers' investigation and decisionmaking would be helpful. It would be interesting to see how the classifications used by mediation buyers and sellers relate to those developed by theorists. For example, when mediators describe their services and lawyers shop for mediators, do they refer to the distinction between facilitative and evaluative styles? Perhaps some of the more sophisticated buyers and sellers do and do so explicitly in those terms. However, it is probably somewhat more common for them to refer to this issue but to use different terms. For example, market participants may describe mediators and their styles as weak or strong. Other, more colloquial expressions may also be used. Thus, more directive mediators may be referred to as "muscle mediators," "Rambo mediators," "Attila the mediator(s)," or mediators who will "knock some sense" into the principals by "banging their heads together" or "twisting their arms." More facilitative mediators may be referred to as "soft," "touchy-feely," "therapeutic," "potted plant," or "new age-y." It is worth noting that most of these terms have strong and generally negative connotations. Although classic mediation theory clearly favors minimal directiveness by mediators, a substantial number of mediation buyers and sellers highly value "strong" mediators and look down upon those they consider too "touchy-feely." Thus, the issue of mediator directiveness clearly stirs fervent passions of theorists and market participants alike and is probably a factor used in promoting and shopping for mediators.
Many mediation buyers and sellers probably also focus on the mediators' goals in mediation. Professor Robert A. Baruch Bush developed a typology of mediators based on their identification with one of five primary goals. Bush labels these five types of mediators as "settlors," "fixers," "protectors," "reconcilors," and "empowerors." Settlors "see their job as settling cases, period—as many as possible, as quickly as possible." They tend to believe that what the principals most want (or need) is simply to end the case. When using a positional (rather than a problem-solving) approach to mediation, settlors often assume that all participants will be pleased to be rid of the dispute even though some, and possibly all, of the participants may be disappointed with the outcome of mediation. Not surprisingly, the mediator's settlement rate is likely to be critically important to mediation buyers and sellers for whom settlement is the primary goal. An emphasis on settlement lends itself to being highly directive and thus may be characterized in practice with some of the same terms—such as "strong"—as a directive style generally. However, mediators who focus on other goals may also be quite directive, as we shall see shortly.
Another type of mediator, whom Bush calls "fixers," emphasizes the development of optimal solutions. For fixers, "their job is to help the parties by relieving them of their problem and finding them the best possible solution to it—best for both parties, that is." The quintessential fixers are "getting-to-yes" joint problem-solvers. They want to consider all the relevant information and options and then craft the solution that works best for all the principals. Fixers probably vary in their levels of directiveness. Some may develop strong opinions about the best result for the principals and press them to accept it, while other fixers may be content to generate desirable options but be relatively detached about the principals' decisions. Mediation buyers looking for fixers might identify the desired quality as being especially "knowledgeable," "creative," or "smart."
Some of Bush's other types of mediators seem like variants of the general "fixer" species. "Protectors" are especially concerned with preventing any principal (especially those perceived to be weaker) from experiencing an unfair process and/or receiving an adverse outcome. Protectors "see their job as making sure that nobody gets hurt or taken advantage of in the mediation process, and—in some cases—that not only the process but the final outcome is basically fair." Like the fixers, protectors focus generally on the quality of the outcome (or process), but focus primarily on avoiding harm rather than producing optimal benefit. Mediation buyers might describe protectors as "protective" or "prudent."
Mediators of Bush's "reconcilor" type are particularly concerned about the relationships between the principals and try to get the principals "to come to some kind of a new and more accepting understanding of one another." One might think of these mediators as fixers who focus on the quality of the process in mediation itself—and especially the quality of the resulting relationships—as possibly more important than the specifics of any agreements reached. Moreover, reconcilors may expand the scope of attention to include relationships with individuals not in the mediation. One might expect reconcilors to be concentrated in the ranks of community and family mediators, though there may well be a cadre of reconcilors who handle stereotypically hard-boiled problems such as those in business. Mediation buyers might refer to reconcilors as "sensitive" or "therapeutic." Many reconcilors may favor less-directive tactics (which is why the term "therapeutic" might be used regarding both techniques and goals), though this need not always be the case. Some therapeutic mediators with strong beliefs about the importance of relationships may be quite directive, such as, for example, when a family mediator presses divorcing parents very hard to develop a good working relationship for the benefit of their children.
Bush refers to the fifth type of mediators as "empowerors." They focus on helping the principals "to exercise their power of self-determination to resolve the dispute on whatever terms they think best." One might think of empowerors as fixers who reject a directive approach. Empowerors are likely to work hard to get the principals to examine their options and their own interests, but display detachment about the options selected as long as the principals have engaged in a certain amount of careful deliberation. Lawyers are not typically interested in promoting their clients' self-reflection, so it seems unlikely that many lawyers would seek out mediators with empowerment philosophies. Still, some disputants may be most interested in this approach. Such mediation buyers might describe the kind of mediators they seek as "thorough and systematic."
As this tour of mediator styles and goals demonstrates, some widely different activities take place in the name of mediation. Should all these activities be entitled to carry the mediation label? I consider this question in the next subpart.
This exercise speculating about the process of shopping for mediation services is useful for analyzing how mediation markets may become institutionalized by developing a generally accepted vocabulary reflecting distinctions within these markets. This institutionalization process entails both the conscious activity of "intellectual entrepreneurs" (such as promoters of mediation services, policymakers, and academic theorists and researchers) and the less-conscious interactions of individual buyers and sellers in the market. Over time, some conceptions gain currency and others fall into disuse. Institutionalization processes occur in relatively unsettled situations with Sbursts of ideological activism" in which ideologies compete for dominance. After these ideological contests are settled, actions are guided by taken-for-granted traditions and what is perceived as common sense. It seems clear that we are now right in the middle of such a period of ideological contest.
A fundamental issue in this institutionalization of mediation is whether there should be a single, relatively pure, conception of mediation that is appropriate for all mediators (which I call the "single-school" view), or whether a variety of conceptions should be accepted as legitimate (which I refer to as the "pluralist" view). The "single-school" view seems to be quite popular among mediators, judging from casual conversations I have heard at gatherings of mediators, though single-school mediators differ as to just what that school should be. Dean James Alfini captured this ethos in quoting a comment by a mediator who distinguished what she believed to be "good" mediation—some mediators call it "real mediation"—from what she considered substandard mediation practice. For example, many mediators can identify quite clearly whether they subscribe to a facilitative or evaluative approach and to which goals they aspire. Not only do these mediators attest to the merits of their own approach, but they cast doubt on the merits of the others, as reflected in the less-than-flattering characterizations of the others as described above. Professors Kimberlee Kovach and Lela Love clearly articulate a positive rationale for a single standard of acceptable mediation:
To develop rules, standards, ethical norms and certification requirements, legislators and administrators need well-defined and uniform processes. Similarly, meaningful program evaluations require uniformity. . . . "Mediation" should mean the same thing from state to state, and from one court to another within a state.Some who hold a single-school view somewhat reluctantly accept the legitimacy of what they view as substandard mediation practices but plead, "Just don't call it mediation."
I am skeptical of a single-school approach for both philosophical and pragmatic reasons. Although I have my own preferences in mediation philosophy—I lean toward an approach promoting principals' exercise of responsibility in decisionmaking—I am a pluralist because I believe that there is a positive value in having a diverse market that offers a wide variety of legitimate options for both mediation buyers and sellers. As a practical matter, I doubt that it is possible either to limit the style of mediator practices or to enforce a single-school usage of the term "mediation." Rather than trying to maintain distinctions about what is and isn't "real mediation," it would be more productive to try to concretely define distinct varieties of mediation in ways that are clearly recognizable by participants in the mediation market. While this would be no easy task in itself, I believe it is more likely to be successful and productive.
As we have seen, the mediation market is quite diverse and currently in the process of institutionalization. Theorists and market participants are struggling to develop what they hope will become taken-for-granted definitions. These arguments over terminology are not "just" academic exercises; these debates shape the practices of mediators and lawyers regarding what it means to be a "good" practitioner, referring to shared meanings and norms within one's practice community. Thus, for mediators and lawyers to succeed in practice, especially in liti-mediation environments, most mediators will need to relate their practices to generally-accepted definitions, and lawyers will need to distinguish key differences in mediation practices. The next part of this Article illustrates a behavioral description of one important dimension of mediation.
As suggested in Part II, there is now a major controversy over whether the primary goal of mediation should be to achieve the outcome of case settlement (the view of Bush's settlors) or to provide a deliberative decisionmaking process in which principals exercise their best judgment (the view of Bush's empowerors). There is also a related contest over the degree of pressure, if any, that is appropriate for mediators to exert on principals (Riskin's facilitative-evaluative distinction). This Part focuses on these controversies, which are important issues that lawyers and mediators will increasingly need to confront. These issues define significant distinctions that lawyers and mediators will rely upon in the mediation market because they reflect important variations in actual lawyering and mediation procedures.
Part III.A examines an empowerment perspective or, as I prefer to call it, an approach promoting principals' exercise of their decisionmaking responsibility. This subpart analyzes the goals of this approach and examines two cases illustrating problematic mediation practices from this perspective. To provide a contrast with the higher standards of what I call "high-quality consent," Part III.B reviews the legal standards of consent required for any settlement. In Part III.C, I define "high-quality consent" as a condition in which a principal has exercised his or her responsibility for making decisions in a dispute by considering the situation sufficiently and without excessive pressure. This subpart identifies seven factors that can be used to define the quality of consent that a mediation process has achieved; I contend that achieving high-quality consent should be an important goal in mediation. Because high-quality consent is defined as a continuous, rather than a dichotomous, concept, it suggests that the issue is not whether high-quality consent has been achieved but rather the level of quality.
Recently, there has been a revival of interest in "empowerment" as the principal goal of mediation. This was often the motivation for mediation at the dawn of the modern ADR era, especially in neighborhood mediation projects. As lawyers and courts became increasingly involved in offering or encouraging use of mediation in the 1980s, much of the focus shifted to efficiently handling larger volumes of cases and removing them from court dockets. That shift of emphasis toward settlement was accompanied by the use of more directive mediation techniques. I suspect that much of the current revival of interest in empowerment is a (often horrified) reaction to the institutionalization of directive, settlement-focused mediation. This revival is reflected by the recent publication of several books on empowerment, especially Bush and Professor Joseph P. Folger's The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition, which has stimulated a great deal of discussion and controversy within the mediation community.
What do people mean by the term "empowerment"? Professor Edward Schwerin presents a fascinating analysis of how the term has been used in social science literature generally as well as in the mediation literature. Schwerin finds that theorists differ in the extent to which they refer to empowerment of individuals or transformation of large-scale social and political relationships. While some of the mediation movement literature (and much of the social science literature) focuses on achievement of macro-political goals, virtually all of the mediation theorists (as well as the social science theorists) include individual transformation as a major element of empowerment.
This Article focuses only on individual-level empowerment. This narrower definition of transformation deals with the development of individuals' knowledge, skills, and resources, typically focusing on those needed to resolve a particular dispute. Bush and Folger's definition of empowerment encompasses elements of individual empowerment, using particular disputes as opportunities for personal transformation generally. They write that "empowerment is achieved when disputing parties experience a strengthened awareness of their own self-worth and their own ability to deal with whatever difficulties they face, regardless of external constraints." In this view, people become empowered in mediation when they better understand their goals, options, skills, and resources, and then make conscious decisions about how they want to handle a dispute. Thus, Bush and Folger contend that a mediator oriented toward promoting empowerment would routinely and persistently act to help the principals become more deliberative in making decisions in a dispute. Bush and Folger do not conceive of empowerment as requiring mediators to be passive. Indeed, they argue that good transformative mediators should "push" principals to focus on the issues as much as possible, and that failing to do so would deprive principals of the greatest potential benefits of mediation. In essence, transformative mediators try, gently but firmly, to help the principals in a dispute responsibly exercise their decisionmaking authority.
Why do theorists and practitioners who are concerned about empowerment consider the principals' exercise of their responsibility to be so important? There are several reasons. For some, at least part of the reason is instrumental: they believe that if principals exercise responsibility for their decisions and actions, it will produce benefits for the principals themselves, those they deal with, and society generally. For some, exercising responsibility is an ultimate value in itself—or really two related values. Probably most commonly expressed is the belief in the value of individuals making uncoerced decisions for and about themselves as an intrinsic good. The terms "autonomy" and "self-determination" reflect this view that values individuals' unrestrained freedom to act as they choose, obviously limited by the rights (and perhaps reasonable expectations) of others. A refinement of this perspective particularly values the making of informed and considered decisions. In this view, principals carefully consider their situations and accept responsibility for making possibly difficult choices.
As noted above, some advocates of empowerment are motivated in reaction to the spread of a strongly directive style of mediation. From this perspective, directive-style mediation actively undermines principals' self-determination by pressuring principals to accept particular proposals based on others' judgments rather than the principals' own careful deliberation. We can get a sense of the problems seen in directive mediation by reviewing the description of a mini-trial conducted by Professor Eric Green. Green is a pioneering and prominent mediator who was a co-founder of Endispute, and who "likes the role of 'power mediator' or 'mediator with clout.' " In one case described by a colleague and protégé of Green's, an employer fired a sales representative who sued the employer for breach of contract and willful infliction of emotional distress. In this case, Green received a referral from a judge, then called the principals' lawyers, explaining that the judge suggested that he (Green) might be able to help settle the case. The judge had provided a great deal of information about the case to Green, including his impressions of the merits of the case. To prepare for the mini-trial, during the weeks preceding its onset, Green had a series of conversations with both sides, mostly with each side separately. In a conversation with the researcher writing the profile, Green described his process as gathering information and developing his own early assessment of prospects for settlement, including key issues and appropriate settlement values. For example, apparently early in the mini-trial itself, Green told the researcher that he thought that the settlement range was $500,000 to $600,000. Green freely expressed his opinions to the principals and gave them strong advice based on his assessments. For example, in a private conversation before the mini-trial began, he told the plaintiff, "Do you really think the court will exclude that evidence? I disagree." At another point, he said, "My advice would be to drop the claim for 'willful infliction of emotional distress.' In my opinion, that claim could be extremely messy." When the plaintiff insisted on more than $600,000, the maximum appropriate amount under Green's litigation decision analysis, he asked the plaintiff, "How greedy can you get?" Green got very angry late in the process when the defendant's representatives refused to accept a $550,000 offer which, from their earlier statements, Green had inferred they might accept. The formal mini-trial session went nonstop for thirteen hours—from noon to 1:00 a.m. The day was even longer than that, considering that Green started the day with an 8:00 a.m. meeting with the president of the defendant company and its attorneys. Green used caucuses extensively, keeping the sides separated for seven hours. At 11:00 p.m., the plaintiff suggested stopping for the night, but Green told the researcher that he "want[ed] to keep the heat on and settle tonight . . . . Their desire to go home may be the fuel needed for final settlement." Pressing hard on the defendant's representatives, Green said the defendant should know "that the judge has no desire to hear this case," suggesting that the court might rule against the defendant if it fails to "live up to its moral obligations" to settle the case. Green finally brought the parties together after hammering out an agreement in which the defendant agreed to pay $550,000 in three installments over a period of two years. The parties signed a handwritten agreement on the spot and the attorneys agreed that the defendant's lawyer would draft a final agreement.
This case demonstrates many features that disturb some people about a directive style of mediation. When judges make "suggestions," attorneys and principals often feel strongly pressured to accept the suggestions, even if the judges do not intend to limit the litigants' choices. The attorneys and principals may experience extra pressure when approached by a private-sector ("third-party") ADR provider who conveys the judge's suggestion and offers to mediate. When he entered the case, the third party already had significant information about the case and had developed ideas about what the ultimate result should be. He purposely used a variety of strong moves to push the participants toward his conception of the appropriate result. Although he certainly listened to the participants, his extensive use of caucusing limited the amount that the participants could communicate directly with each other. This procedure gave the third party tremendous power to influence the participants through careful characterization of the other sides' positions. The third party joined forces (at least temporarily) with one attorney to pressure the attorney's own client to take a more "reasonable" position. The third party used the pressure of time to prod the principals, in this case by continuing the process until the principals finally agreed. In addition to these relatively indirect forms of pressure, the third party strongly expressed his opinions, disparaged the participants' positions, and pressed hard for the participants to accept a particular agreement. He apparently implied that if the defendant did not make what he considered reasonable movement toward settlement, he (Green) might so inform the judge. While this case may represent an extreme on the scale of directiveness, a directive style is not unusual. Researchers Deborah Kolb and Kenneth Kressel find that many mediators extensively use heavy-handed "pressure tactics and arm twisting."
The tactics that Green used were relatively overt. Mediators' moves to influence the participants are often much more subtle than the ones that Green used. Professors David Greatbatch and Robert Dingwall describe a process that they call "selective facilitation," in which the mediator directs the discussion toward some proposals and away from others. Using sophisticated conversation analysis techniques to analyze an audiotape of a mediation session, they present a case in which a divorcing couple owns a family residence (where the wife and the couple's two young children were then living) and a less valuable piece of rental property. The wife wanted an agreement in which she would keep the family residence and the husband would keep the rental property. The husband wanted to sell both properties and divide the proceeds. A casual reading of the transcript might give the impression that the mediator did not favor either option, but a close examination reveals that the mediator subtly moved the process toward one option and away from the other. The mediator never directly expressed an opinion about these two options, but she repeatedly returned to the option of keeping the properties; whenever the husband raised the sale option, the mediator either raised questions about it or steered the conversation back to the option of keeping the properties. Although the couple did not reach agreement in mediation about the real estate, the mediator apparently salvaged an agreement about support payments. Greatbatch and Dingwall report that the selective facilitation in this case was not unusual among the forty-five mediation sessions that they analyzed.
For settlors, the mediation process in the two cases described in this subpart are not very problematic because the mediators focused intensely on trying to get an agreement. For those concerned about values other than simply settlement, these cases may be quite troubling. For example, if the plaintiff in Green's case had second thoughts in the following day or two and did not want to proceed with the agreement, one might question the quality of his consent. In the following subpart, we examine the legal standards of consent, which would almost certainly have been satisfied in this situation. In Part III.C, I suggest some standards of what I call "high-quality consent" under which there would be serious concerns about the quality of the plaintiff's consent.
To provide the legal context and a basis for comparison in defining the "high-quality consent" in mediation discussed in Part III.C, it may be useful to consider the standard of consent that the courts use in determining whether to enforce agreements, including agreements settling disputes. In general, contract law has a low standard of consent and recognizes only a few narrow exceptions. Contracts typically involve an exchange of promises in which a "promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made." In assessing a "manifestation of intention," courts use "an external or objective standard for interpreting conduct; it means the external expression of intention as distinguished from undisclosed intention. A promisor manifests an intention if he believes or has reason to believe that the promisee will infer that intention from his words or conduct." Note that under the objective standard, the courts generally do not analyze the care with which the parties negotiated the agreement (e.g., the parties' consideration of various alternatives that they might have chosen or the likely consequences of the various alternatives), the fairness of the agreement, or even their actual understanding of the agreement. Although there is a doctrinal exception for "unconscionable" agreements, as most first-year law students know, that exception is quite limited. The other factors negating assent, including misrepresentation, duress,1 undue influence, and mistake, are also fairly narrow.
As a matter of legal policy, using such an inclusive, (fairly) bright line approach seems prudent considering the courts' difficult role in adjudicating contentious disputes and the possible result that some parties will act more carefully knowing that they cannot easily evade the consequences. On the other hand, by definition, the law permits—and thus, perhaps, encourages—sharp practices that almost, but do not quite, run afoul of the law. Thus, while contract doctrine regarding the required level of consent may produce good results in the adjudication context, considering the shadow that the law casts on negotiation, it may be counterproductive or at least suboptimal in its effect on negotiation.
The fact that the law tolerates unsavory negotiation practices is one reason that many people are interested in ways to improve the negotiation process. This concern reflects an intrinsic value in the disputing process itself, independent of the merits of the outcome or even the principals' satisfaction. For example, there might be a broad consensus of experts on divorce that, under the circumstances, the retention of the family residence in Greatbatch and Dingwall's case would be in the best interests of the children and perhaps the family as a whole, especially if that option had been developed so that the father's interests could also have been addressed. Similarly, in Eric Green's case, the terms of the agreement that Green engineered might be quite appropriate under applicable legal or other norms. Moreover, if one interviewed the participants after the mediations in these cases, the participants might feel quite satisfied with both the outcome and the process, particularly considering the legitimate values of being heard by a formally neutral third party, gaining resolution, and banishing fears of litigation. Even so, many observers may not be satisfied, believing that the processes were inappropriate or did not realize their potential. If the legal standards of consent do not provide adequate guidance for determining an appropriate or desirable quality of consent for an agreement in mediation, we should consider other standards for evaluating consent, which we will examine in the next subpart.
If a mere objective "manifestation of mutual assent" is not enough to establish what one might consider high-quality consent, what is? This is obviously a difficult question to answer, and the following is the best that I have developed so far. I will use the term "high-quality consent" to refer to a condition in which a principal has exercised his or her responsibility for making decisions in a dispute by considering the situation sufficiently and without excessive pressure. Like many definitions, this relies on important terms ("sufficiently" and Sexcessive") that are very ambiguous. In this subpart, I will suggest seven factors that may make this concept more concrete (though these factors admittedly entail some subjective judgment). These factors are intended to provide principals, their attorneys, mediators, or other observers with practical criteria for determining the quality level of consent of a principal in mediation.
This task is more difficult than it might appear for at least three reasons. First, as we shall see, the goal of high-quality consent is an ideal that is not completely achievable in practice. To produce the highest possible quality of consent would require more time and money than normally would be justified. Thus, the quality of consent to be obtained must be balanced with the value of resources to be committed and other criteria for evaluation. Second, mediation processes are not single, discrete events, but are processes unfolding over time that may have more or fewer characteristics of high-quality consent at different points during the process. Finally, because the behaviors fostering (and impeding) the principals' deliberation and the application of pressure are subtle, proper analysis depends on the context.
The following list reflects my working hypotheses about factors affecting the quality of principals' decisionmaking. These suggestions are necessarily tentative and subject to revision depending on their usefulness in clinical practice and empirical research. The descriptions incorporate my own views about some controversial issues; I am hopeful that this discussion will contribute to some clarification of the issues, if not an eventual general consensus. The factors include: (1) explicit identification of the principals' goals and interests, (2) explicit identification of plausible options for satisfying these interests, (3) the principals' explicit selection of options for evaluation, (4) careful consideration of these options, (5) mediators' restraint in pressuring principals to accept particular substantive options, (6) limitation on use of time pressure, and (7) confirmation of principals' consent to selected options. I describe each of these factors below.
Note that these factors are suggested as possible indicators in a continuum of the quality of consent, not as necessary ethical or legal requirements in every situation. This set of factors is intended to suggest some possible "best-practice" guidelines oriented to enhancing the quality of principals' consent. The fact that a mediation does not fully follow all of these guidelines does not necessarily suggest that there is anything wrong with the mediation, only that it does not fully achieve an aspirational standard on one (and, I would argue, important) dimension of mediation. Unlike the legal test for fraud, in which the absence of any element negates the existence of fraud, these factors are suggestive, and not every factor is essential. This is more like the test for a type of undue influence, referred to as "overpersuasion" in a line of California cases:
[O]verpersuasion is generally accompanied by certain characteristic elements which, when simultaneously present in a significant number, characterize the persuasion as excessive. These elements are "(1) discussion of the transaction at an unusual or inappropriate time, (2) consummation of the transaction in an unusual place, (3) insistent demand that the business be finished at once, (4) extreme emphasis on untoward consequences of delay, (5) the use of multiple persuaders by the dominant side against a single servient party, (6) absence of third-party advisers to the servient party, (7) statements that there is no time to consult financial advisers or attorneys."For example, in a case in which a police officer was pressured to resign by a deputy police chief soon after the officer had been charged with rape, the court upheld a civil service board's decision setting aside the resignation, finding that the evidence could support five of the seven factors of overpersuasion.
Just as the preceding seven factors can be assessed to create an implicit scale of overpersuasion, the seven factors I propose may be used to form a continuum of quality of consent in mediation. Thus, rather than indicating distinctly whether a principal has or has not given high-quality consent in a particular situation, one might say that the quality is better or worse considering all of these factors and then judge whether the quality of consent is "enough." Given the difficulty in defining this subjective concept, there can be obvious differences of opinion over how much is enough (or how much is appropriate considering other values such as efficiency and termination of a dispute). Indeed, this is probably the heart of the difference between settlors and empowerors. Defining the quality of consent as a continuum using fairly concrete behavioral indicators such as the following could help clarify such debates.
It may seem obvious that it would be important for principals to identify their goals for resolving a dispute and the interests underlying their goals. Yet many mediators, lawyers, and principals often assume—incorrectly—that they know the goals and interests of the principals and that explicit discussion of these matters is thus unnecessary. No doubt many mediators and lawyers often assume that the principals simply want to end up with "more" of whatever they want, and that they usually just want more money. The principals may make similar assumptions about each other. Moreover, the principals and lawyers may enter mediation so fixated on obtaining particular outcomes that they do not consider what the principals' basic interests are that may be achieved with outcomes they had not considered. In terms of Leonard Riskin's typology, eliciting higher quality consent entails defining the problem broadly rather than narrowly. Riskin identifies four progressively broader levels of interests, which he calls litigation issues, business interests, personal/professional/relational interests, and community interests. Clearly, to obtain high-quality consent, one need not necessarily expand the definition of a dispute to encompass all possible interests and issues. Rather, enhancing the quality of consent entails exploration of the principals' goals and interests to an appropriate extent under the circumstances. Eliciting interests explicitly increases the likelihood that principals will identify their interests. As noted above, these interventions are not suggested as being necessary or appropriate in every case, and thus there are undoubtedly situations in which mediators quite wisely refrain from exploring all the interests.
To make an informed decision, it seems obvious that it is necessary to identify various plausible options for resolving an issue. In some cases, the discussion focuses on a single option, such as the first one suggested by a principal or thought of by the mediator. Moreover, mediators sometimes do not use a problem-solving approach seeking to develop options benefiting all principals, which is a major potential benefit of mediation processes. The quality of principals' consent is diminished to the extent that there are serious plausible options that the participants do not identify. I believe that it can be quite appropriate for mediators to identify plausible options that the participants have not thought of and that, if done properly, this enhances rather than detracts from the quality of principals' consent.
We should not underestimate the difficulty of routinely identifying a wide range of plausible options. This demands a significant amount of time and emotional commitment, especially if the participants enter the process with strong commitments to a positional approach in which the participants make a series of counteroffers to narrow and ultimately eliminate their differences. In a given case, there may be multiple issues and subissues; theoretically, mediation processes should entail explicit identification of plausible options for all the issues. Even though this is an important ideal, it may be practically impossible to realize fully. Thus, one may judge mediation processes by the extent to which the mediators do promote explicit identification of plausible options, especially for the most important issues. In some situations, such as where the stakes are relatively small or the principals are quite familiar with the circumstances, principals may intelligently decide to restrict the consideration of options. In such situations, mediators oriented to eliciting high-quality consent can explicitly check if the principals want to consider additional options.
The third factor involves the principals explicitly choosing to consider the most plausible options. This factor is an extension of the preceding ones and is subject to similar limitations. As a practical matter, it is typically impossible or undesirable to fully evaluate the complete range of plausible options for each issue. Thus, some choices must be made to restrict the range of options and extent of evaluation. This factor involves mediators helping the principals to make these decisions consciously. Moreover, it encompasses an element of impartiality by which mediators do not implicitly or explicitly steer the principals to focus on one option over another without their consent. In this respect, the selective facilitation performed by Greatbatch and Dingwall's mediators and the pressure tactics that Eric Green used reduce the quality of the principals' consent.
Normally, mediators do not threaten the quality of the principals' consent if the mediators do not press for consideration of particular options (at least if no side is taking inappropriate advantage over another). While this may reflect an ideal approach, I believe that it is often helpful for mediators to suggest that the principals focus on certain options for evaluation. In my view, this does not undermine the quality of the principals' consent if mediators do so explicitly and with limited pressure on the principals to accept the mediators' suggestions.
To produce high-quality consent, the principals, after identifying plausible options, should decide what information they need to evaluate the options and then weigh the likely favorable and unfavorable consequences. Clearly, the expected transaction costs of various options (e.g., settlement versus trial) are important subjects that should be considered. To enhance the quality of the principals' consent, mediators would elicit realistic (rather than unreasonably understated or exaggerated) estimates of the likely costs and consequences of trial. In cases pending in litigation, mediators may be especially prone to describing how judges (either generally or the particular judge sitting on the case) and juries "typically" decide cases like their case. Sometimes mediators portray litigation as almost completely negative and exaggerate the risks of litigation as a means of pressing the principals to settle. Clearly, this diminishes the quality of their consent.
Some advocates of empowerment argue that mediators should not express opinions about the substantive issues because doing so inevitably favors one side or another and excessively pressures the principals. While this may often be the result, I do not believe that a mediator's expression of opinion necessarily reduces the quality of the principal's consent (or the mediator's impartiality). For example, a mediator may present opinions about likely court results or typical resolutions in similar disputes without undermining the quality of principals' consent if the mediator first asks if the principals would like the mediator's opinion and, if so, presents this information without excessively pressing the principals to accept a particular option. This risk can be further reduced if the mediator takes actions to promote high-quality consent, such as explicitly facilitating consideration of several options. This analysis suggests that mediators' expression of opinions (and, as discussed above, identification and selection of options for consideration) do not necessarily impair the quality of the principals' consent, but rather should be evaluated to determine the extent to which these practices in fact pressure the principals and whether the pressure is excessive.
The impact of a dispute on the principals' relationships should often be an important consideration. Disputes don't happen in a vacuum. They happen in a web of relationships that give meaning to people's lives. Often, disputes arise out of problems in a relationship. In fact, considerations about the continuation of the relationship between the principals may be more important than the subject of the dispute itself. Disputes may implicate a range of relationships between the principals and others who are not formally part of the dispute, if only because the principals may provide accounts of the dispute to relatives, friends, and other associates. Important relationships are involved even in the stereotypical automobile negligence case in which the plaintiff has no prior relationship nor expected future relationship with the insurance company or its insured. Simply maintaining a dispute requires the principals to continue a set of relationships, albeit ones that are usually temporary and undesired. Often, incidents in the conduct of a dispute overshadow the event or transaction precipitating the dispute. Given the importance of relationships to most people and the fact that relationship issues can easily be overlooked in the course of fighting over the "substance" of a dispute, mediators can increase the quality of principals' consent by focusing on the significance of relationships in the dispute. This factor does not necessarily require lengthy discussion of any particular relationships, but only a sensitivity to the significance of relationships and a willingness to raise relationship issues when it appears that they are or might be important to the principals.
The choice of substantive options (e.g., whether to agree on x dollars or y dollars or not to agree at all) is the ultimate decision that principals must make in mediation and may be the most common subject of mediator pressure. Clearly, mediators reduce the quality of principals' consent when the mediators effectively pressure principals to substitute the mediator's judgment for their own judgment, as exemplified by the actions Eric Green took in the case described above. Probably more common, mediators offer their opinions about the merits of a case without expressly urging the principals to take a particular position. Expression of such opinions does not necessarily result in excessive pressure and may be quite appropriate in certain situations. In some situations, however, it creates a risk of reducing the quality of principals' consent, especially if the mediator effectively urges the principals to accept a position expressed by the mediator or described as normal. This is especially dangerous if the mediator suggests that refusal to accept the mediator's position might result in some sanction, such as a report to the court that one side was responsible for unreasonably failing to settle. An actual or implied threat to withdraw the mediator's respect and cooperation is probably a more typical and more potent sanction.
Probably the greatest pressure that mediators exert is the pressure to reach settlement for the sake of settlement, based on the assumption that settling in mediation is almost always better than not settling. Deciding whether or not to settle is the ultimate decision that principals make in mediation. The right to trial is a precious value protected under the federal and state constitutions. Principals may legitimately decide to take advantage of this right. If they are to enhance the quality of principals' decisionmaking, mediators, after discussing the principals' analysis of the dispute as described above, must respect principals' decisions not to settle if they so choose.
Time pressure can impair people's judgment and can be used to reduce the quality of principals' consent. Time pressure often results from an apparent need to make a decision within a short time, though it also may result from efforts to prolong a dispute, as we saw in Eric Green's case. In some cases, time pressure results from external constraints that may be difficult or impossible to change, such as a trial date or a relevant external transaction. In such situations, mediators help participants by periodically focusing attention on those time constraints and helping principals to exercise decisionmaking responsibility as well as possible within those constraints. Indeed, mediators may provide a valuable service by eliciting agreements about the pace of the process and any deadlines that the principals may want to set.
In some situations, the mediator or a participant in a mediation may manipulate time constraints to pressure some participants. Depending on the circumstances, this may inappropriately reduce the quality of principals' consent, especially if the mediator initiates the time pressure. Inappropriate time pressure is a serious risk in mediation when there is an unnecessary expectation that the principals can reach and sign an agreement during a single-session mediation without further opportunity for advice, reflection, or negotiation. Thus, mediators can enhance the quality of principals' consent by being genuinely open to continuing a mediation at a later time as appropriate. Mediators can enhance the quality of principals' consent by suggesting that principals take a reasonable amount of time, such as several days, to consider a proposed agreement before being expected to commit to it.
When principals are on the verge of reaching an agreement, mediators can ensure that principals' decisionmaking responsibility is honored by checking whether the principals understand the proposed agreement, need further information, and want to proceed with the agreement. Of course, this would not be effective if the mediators appear to simply "go through the motions," as some courts do when accepting plea bargains. Rather, mediators oriented to ensuring principals' high-quality consent would make a serious inquiry, especially if a principal seemed uncertain or ambivalent. This is especially important in one-session mediations in which the mediator drafts an agreement that the principals are expected to sign at that session. Although the participation of the principals' lawyers in mediation may provide some assurance of high-quality consent, if the lawyers are strongly motivated to reach some settlement in the mediation, their presence may undermine rather than support the principals' decisionmaking responsibility, as described below.
As noted above, I hypothesize that cumulatively these seven factors are good indicators of the extent to which a mediation process enhances or diminishes the quality of the principals' consent, which is an intrinsic potential benefit of the process. For several reasons, the development of a fairly clear and generally accepted conception of high-quality consent may be an important influence in the development of both lawyering practices and mediation practices in the next century. First, mediators' philosophies about principals' responsibility in mediation may be an important distinguishing feature in the mediation marketplace. If so, it will be vital for mediators to develop and project their own identities along this dimension in the market. By the same token, to serve their clients profitably, lawyers, as regular buyers of mediation services, will need to recognize these key distinctions between mediators. Second, and more important, this issue may shape actual lawyering and mediation practices, as we consider in the next Part of this Article. These factors may provide useful guidelines for mediators, lawyers, and principals who champion values of empowerment. In addition, the behavioral factors comprising the scale suggest specific procedures that mediators of all persuasions, including dyed-in-the-wool settlors, can readily include in their mediation practices without necessarily "buying the whole program." By the same token, lawyers who generally prefer settlor-style mediation may identify certain procedures that they might request to enhance their clients' interests without jeopardizing their goals of definite and efficient dispute resolution. We now consider how these and related issues will affect lawyers' and mediators' practices.
As mediation becomes a routine step in contested litigation, we can expect that mediation and litigation procedures will co-evolve, i.e., the dynamics of litigation will influence the practice of mediation and vice versa. Some obvious possibilities are that routine use of mediation in litigation could reduce the level of adversarial behavior in litigation generally, and the incorporation of mediation into the litigation process could increase the level of adversarialness in mediation. This Part examines some possible and, indeed, likely changes as these two forms of practice evolve in tandem, particularly as lawyers routinely shop, plan for, attend, and participate in mediation. Although principals are not always represented by attorneys and attorneys do not always attend mediations, attorneys often do attend and participate actively in liti-mediation environments. Part IV.A focuses on how routine participation of lawyers in mediation is likely to result in ongoing relationships between mediators and lawyers that may overshadow their respective relationships with the principals. Part IV.A also describes how lawyers' participation may induce mediators to focus on lawyers' interests in pressing the principals into settlement and inhibit mediators from independently managing the process. In addition, lawyers' participation may significantly affect the timing of the mediation process, as described in Part IV.B. In liti-mediation cultures, the scheduling of mediation is likely to be determined by local norms about whether it is most appropriate at early, intermediate, or late stages of pretrial litigation. Part IV.B also describes how the mediation process may be rushed as it is oriented toward the time frame of litigation and limitations of lawyers' time. Part IV.C analyzes how an orientation of mediation toward the needs of lawyers and courts may enhance or undermine the principals' ability to exercise their decisionmaking responsibility. Lawyers' norms of adversarial bargaining and "client control" may be incorporated into mediation. This may have an especially powerful effect given the time pressures described in Part IV.B. Despite many lawyers' interest in using a problem-solving approach that enhances the exercise of the clients' decisionmaking responsibility, Part IV.C contends that the lawyers' very participation in mediation may undermine those possibilities if the lawyers bring adversarial approaches into mediation that reduce the quality of the principals' quality consent to settlement.
As mediation becomes more common, and especially where the courts are authorized to order cases into mediation, most lawyers will feel the need to be able to advise clients about the use of mediation, select appropriate mediators, and competently represent their clients in mediation. Indeed, the institutionalization of mediation may lead to establishment of an ethical duty to advise clients about mediation and even malpractice liability for failing to do so. Nonetheless, I suspect that informal social pressure and (actual or perceived) court mandates will influence lawyers to routinely incorporate mediation into their practices much more than the threat of professional discipline or liability. As lawyers perceive that participation in mediation is normal or even the "in thing," they are likely to take it for granted as a normal feature of the legal process.
Institutionalization of mediation is likely to result in significant redefinitions of the relationships between principals, lawyers, and mediators. Over time, lawyers and mediators in the same professional community are likely to establish distinctive reputations and ongoing relationships with each other. As the lawyers are likely to be repeat players, mediators may well see lawyers as their (the mediators') clients rather than the principals, with whom the mediators are much less likely to have repeat business. This alliance between mediators and lawyers—and mediators' great stake in their goodwill with the lawyers in their community—is likely to be reinforced if the lawyers (rather than the principals) typically do the shopping for mediators. When the lawyers in a case (or their major clients) are roughly comparable in their repeat-player status, the mediator would presumably be equally dependent on both lawyers and would generally not have an incentive to favor one side or another. When one side is a repeat player (such as an insurance company or a lawyer who uses mediation frequently) and the other side is not, the mediation process could consciously or unconsciously be affected by an ongoing relationship between a mediator and a lawyer.
Local norms about whether lawyers normally attend mediation sessions and, if so, how they participate may radically affect the constellation of relationships and the dynamics of the process. In some places, lawyers routinely attend mediation sessions; in other places, lawyers rarely attend. If lawyers do attend the mediation, they may affect the process dramatically. In some situations, the lawyers take a dominant role in which they do most of the talking, typically making their sides' opening statements and often responding to offers (presumably, though not necessarily, based on prior authorizations). In other situations, the lawyers are permitted only to observe and consult with their clients, but not speak for them.
Some mediators explicitly define their expectations about the lawyers' role in the mediators' opening statement. The lawyers' role is often reflected in, and affected by, the seating arrangements. The individuals seated directly next to the mediators often act as the primary spokespeople for their side. If the principals sit next to the mediator, this often signals that the lawyers are expected to act primarily as advisors to their clients rather than as advocates with the mediator and other side. Some mediators emphasize limitations on the lawyers' advisory role by insisting that the lawyers sit behind their clients rather than sitting at the table. If principals are represented by counsel but their lawyers do not attend mediation sessions, the lawyers typically review any agreement that is reached in mediation and may or may not talk with the mediators by phone.
The complicated sets of relationships between mediators, lawyers, and principals may cause confusion about the nature of the relationships and thus about what behaviors are appropriate. For example, are the principals primarily the mediators' clients, primarily the lawyers' clients, or both equally? The significance of this issue is illustrated in a simulated mediation of a personal injury case from a training video featuring a prominent Florida mediator and trainer. After the plaintiff's lawyer completed the opening statement, the mediator turned to the lawyer and, referring to the plaintiff, asked, "Would you mind if I ask her a question or two?" The question implied that the principal was primarily the lawyer's—not the mediator's—client and that the mediator could not address the principal directly without the lawyer's consent.
Should the mediator normally assume that lawyers accurately present their clients' perspectives or should mediators periodically confirm the principals' positions themselves? If principals do not appear comfortable with their lawyers' statements, would it be an improper interference in the lawyer-client relationship to suggest that the lawyers confer with their clients or to ask the principals (perhaps in caucus) to confirm their positions? These quandaries reflect an ambiguity in the relationships between mediators, lawyers, and principals. If mediators are more assertive, they risk alienating the lawyers and perhaps the principals as well. If mediators do not pursue these issues, they clearly reduce the quality of the principals' consent by failing to examine the issues carefully. Although these problems can be addressed by mediators, especially by setting expectations in the opening statements, they reflect serious potential threats to the authority of both mediators and lawyers. If mediators assume that lawyers may legitimately use an adversarial approach to mediation, even a mediator's questions to a principal may be perceived as inappropriately interfering with the lawyer's strategy. In these situations, mediators may feel quite reluctant to probe a principal's thinking in much depth.
Consider further that the question "Would you mind if I ask her a question or two?" mirrors a typical interaction in litigation in which one attorney displays respect to an opposing attorney. Of course, rather than being the principal's adversary, the mediator is supposed to help the principals. Given the fact that some mediators use strong directive tactics to pressure principals, it may well be necessary and appropriate for lawyers to protect the principals from the mediator. On the other hand, lawyers sometimes look to the mediators to provide precisely that kind of pressure on the lawyers' own clients that the lawyers feel unable or unwilling to effectively exert themselves. It is not uncommon for lawyers to believe that their clients are taking unreasonable positions but feel that they (the lawyers) cannot argue too strongly with their clients without losing the clients' confidence. Indeed, McEwen et al. reported that more than half the Maine lawyers they interviewed spontaneously identified a benefit of mediation as having mediators "challenge clients to relinquish unrealistic positions and claims," thus reinforcing the lawyers' own advice.
This discussion shows how the participation of lawyers in mediation can complicate and confuse the relationships between lawyers, mediators, and principals. Given mediators' dependence on lawyers as regular sources of future business, it should not be surprising if mediators especially cater to lawyers' interests, possibly superseding the principals' interests. Indeed, mediators and lawyers may find that they share an interest in pressuring principals to settle, especially in those liti-mediation cultures where the dominant norm favors settlement per se as the primary goal of mediation. The following section considers how lawyers' participation in mediation may affect timing of litigation and mediation.
Institutionalization of mediation as a normal step in litigation may affect the pattern and pace of litigation. Under the mandatory divorce mediation statute in Maine, mediation has become an expected settlement event, forcing the lawyers and principals to seriously focus on the issues. McEwen and his colleagues found that the mandated mediation in Maine encouraged the lawyers and principals to settle earlier than they otherwise would have. Conceivably, institutionalization of mediation could also delay settlement, depending on local judicial or legal norms about timing of settlement negotiations. If lawyers expect that they will eventually settle the cases in mediation, they may hold off conducting direct negotiations early in litigation.
There is a split of opinion in the mediation community over the best time to conduct mediation. Some argue that mediation is most appropriate early in litigation (or better yet, before litigation), when principals have not yet hardened their positions and invested a great deal in litigation expenses. Others argue that mediation is not appropriate until late in litigation because principals can make informed decisions only after completing discovery. Whatever the local norms for the timing of mediation, where it becomes institutionalized, it is likely to be a (if not the) central settlement event around which other litigation activities revolve.
The involvement of lawyers in mediation may affect the timing of the process in several ways, generally adding time pressure to the mediation process. When lawyers attend mediation, the scheduling of mediation sessions may be more difficult because it obviously requires coordination of at least two additional schedules. Because lawyers often have tight schedules, the time available for mediation may be quite constrained. For example, in the dependency mediation clinic at my school, it is not unusual for lawyers to arrive late, have hearings or other appointments scheduled for a time soon after the mediation is set to begin, and be interrupted during mediation sessions by calls on their pagers and cellular phones. Given the pace of their schedules, they may want to settle cases as fast as possible, and they often express impatience if the principals, including their own clients, talk "too much." If the lawyers do not consider the parties' relationship concerns to be relevant or important, these issues may not be raised at all or discussed in much depth. When the principals are paying their lawyers on an hourly basis (often in addition to half of the mediator's fees), the principals may also feel a financial pressure to avoid dealing with issues that are not legally relevant and thus "get the mediation over" as quickly as they can.
Given all these time pressures, everyone involved may be reluctant to consider scheduling additional mediation sessions and thus may try to complete a settlement in a single meeting. When mediation takes place shortly before a scheduled trial date, it may be difficult or impossible to schedule a second session even if all the participants agree that it would be productive. The regular presence of lawyers may thus lead to a norm of mediations conducted in a single, possibly rushed session. Indeed, that is what McEwen and his colleagues observed in divorce mediation in Maine, where mediation usually involves a single mediation session lasting two to three hours. By contrast, Jessica Pearson and Nancy Thoennes found that in public and private divorce mediation programs that lawyers did not attend, the mediations involved an average of 3.4 to 6.2 sessions, totaling an average of 6.3 to 8.7 hours, respectively. It is possible that the difference in the amount of time in mediation is a function of whether discovery had been completed prior to mediation. Given the view of many lawyers that mediation is appropriate only after discovery has been completed, it is possible that mediations with lawyers attending are more likely to occur with discovery largely completed. Obviously, if discovery had not been completed prior to mediation, one would expect that it would take additional time in mediation to collect and analyze the relevant information. Nonetheless, the participation of lawyers is likely to add time pressure in mediation for the reasons described above.
In sum, mediation is a central settlement event in liti-mediation culture. When the lawyers and parties expect that litigation will normally end in mediation, one can assume that they will plan their activities in litigation with an eye toward how the case will "play out" in mediation. Including lawyers in the mediation sessions may often restrict the time available and the scope of issues considered appropriate for discussion. Ironically, lawyers' participation in mediation may reduce the quality of the principals' consent unless mediators prepare to handle time pressures that may accompany the lawyers in mediation.
Regular participation of lawyers in mediation sessions may also affect the negotiation dynamics in mediation, possibly encouraging use of positional dynamics of offer and counteroffer rather than a joint problem-solving effort to seek mutual gains by analyzing the principals' underlying interests. In a survey of 515 lawyers and fifty-five judges in New Jersey, Professor Jonathan Hyman and his colleagues found that, on average, the respondents estimated that about seventy percent of their cases were settled using positional methods, even though about sixty percent of the respondents said that problem-solving methods should be used more often. Hyman et al. suggest that problem-solving may be used less than lawyers would like due to fear that opponents will take advantage of them, perceived opportunities to gain advantage through positional methods, or simply habitual use of positional tactics. Thus, it would not be surprising if lawyers bring an habitual positional mindset into mediation, especially if the mediator is also a lawyer or retired judge. Mediators who also have that mindset may feel inhibited about asking questions to avoid interfering with each side's positional strategy, as suggested in Part IV.A.
As Professors David Lax and James Sebenius point out, lawyers' fears of losing strategic advantage through problem-solving tactics reflect real risks entailed in such an approach. Lax and Sebenius also show, however, that using a mediator may reduce these risks by providing a neutral third party who can receive and analyze information in confidence. Mediation can thus offer a useful forum for lawyers who want to use a problem-solving approach to negotiation. Indeed, McEwen et al.'s study suggests that mandatory divorce mediation in Maine may have offered just such opportunities and that most lawyers generally accepted them. The researchers found that lawyers generally adopt a norm of "the reasonable lawyer," who, rather than exacerbating conflict, typically tries to reduce it by "limit[ing] client expectations, resist[ing] identifying emotionally with the client, avoid[ing] substantially inflated demands, understand[ing] the likely legal outcome, assert[ing] the client's interests, respond[ing] to new information, and seek[ing] to reach a divorce settlement." This finding, though at odds with many popular conceptions of lawyer behavior, is consistent with many other analyses of lawyers' settlement orientations, even outside of mediation. Being "reasonable," however, is not the same thing as using a problem-solving approach. Indeed, being "reasonable" may involve lawyers pressuring their own clients to give up demands and expectations (perhaps correctly) perceived as unreasonable, rather than searching for options addressing the underlying interests of the principals. McEwen et al.'s data suggests that Maine lawyers may be more likely to address the concerns of both principals than lawyers in New Hampshire, where mediation practice is much less common. When asked about their primary goals in negotiating divorce cases (not limited to cases in mediation), 39.5% of Maine lawyers reported the goal of reaching "settlements fair to both parties," compared with 28.3% of New Hampshire lawyers, whereas only 15.8% of Maine lawyers reported the goal of "getting as much as possible for [their] client," compared with 33.3% of New Hampshire lawyers. This may indicate that Maine lawyers are more likely to use problem-solving tactics, especially in mediation. Nonetheless, Hyman et al.'s data described above suggests that we should be cautious about assuming a tight link between lawyers' aspirations and actual problem-solving behavior.
As we have seen, the participation of lawyers in mediation may have quite different effects on the use of adversarial and problem-solving processes in mediation. On one hand, their participation may contribute to thorough and careful problem solving. On the other hand, their participation may inhibit such a process by incorporating traditional adversarial approaches into mediation.
In liti-mediation cultures, lawyering and mediation practices may shape each other in significant ways. Where mediation becomes a routine part of litigation, the mediation market is likely to be sizable, complex, and specialized. Lawyers will recognize their clients' interests, and thus their own self-interests, in learning the variations between mediation practices in the relevant mediation markets. In a liti-mediation environment, lawyers are likely to focus their settlement efforts on mediation, displacing traditional lawyer-to-lawyer negotiation to some extent. Over time, they are likely to identify a set of mediators with whom they have good relationships and whom they can trust with their clients and favor with business referrals. Lawyers will learn how to practice advocacy in mediation, reading the mediators' moves and then coordinating or parrying as appropriate. Indeed, evidence shows that lawyers quickly come to appreciate how they can use mediators to manage relationships with their clients during the awkward process of negotiation. Mediation, especially where there is a high settlement rate, can add predictability and control to lawyers' practices.
Lawyers' routine participation in mediation is also likely to have a major impact on mediation practice in liti-mediation cultures. Mediators will feel pressure to develop distinctive professional identities with identifiable characteristics of their mediation practices to maintain and grow their mediation businesses. Mediators will need to manage relationships with lawyers as repeat buyers of their services and professional colleagues who serve the same principals. Regular participation of lawyers in mediation is likely to result in ongoing relationships between mediators and lawyers that may overshadow their respective relationships with the principals and dramatically affect the mediation process. Mediators can expect that lawyers will practice advocacy in mediation and thus mediators will develop strategies to finesse, reframe, or resist lawyers' advocacy at times. Mediators will also learn to recognize when lawyers seek the mediators' help by acting as "agents of reality" to reduce or otherwise reframe principals' expectations and demands. As this is a recurring problem for lawyers, mediators are likely to develop regular tactics for managing these interactions as part of a general definition of the mediators' relationships with the principals. Mediators will need to consider whether they see the lawyers or the principals as their primary clients.
To the extent that mediators view principals as their primary clients, mediators will develop tactics to manage their relationships with lawyers and principals to help the principals assess their goals and the best way to achieve those goals. Of particular concern are the principals' priorities among potentially conflicting mediation goals, including speedy and efficient resolution, optimal problem-solving outcomes, enhanced relationships, and principals' exercise of responsibility for their decisions. Most mediators probably try to help principals achieve efficient settlements. Focusing on the principals' interests and priorities may lead mediators to consider—and explicitly discuss with participants—whether the principals have additional goals and which goals they want to take precedence.
Although lawyers' participation in mediation may well help their clients exercise responsibility for their decisions, I suspect that lawyers' participation often undermines the principals' exercise of decisionmaking responsibility. In general, lawyers normally do help their clients exercise decisionmaking responsibility by identifying key issues and providing an analysis that enables the principals to make more informed decisions. On the other hand, lawyers often feel the need to control their clients' decisionmaking. Moreover, when lawyers attend mediation, the lawyers' participation may, possibly subtly, undermine their clients' decisionmaking responsibility. This is especially likely when lawyers take an active speaking role, which, by definition, dilutes the role of the principals. In addition, lawyers' participation is likely to result in increased time pressure, which, in itself may undermine principals' responsibility taking. Moreover, time pressure is likely to inhibit the processes that permit and encourage high-quality consent, including explicit identification of principals' goals and interests and plausible options, principals' explicit choice of options for consideration, careful analysis of the options, mediators' restraint from pressuring principals to select particular options, and confirmation of consent. These are certainly not inevitable results of lawyer participation, but I believe that they are quite likely if mediators do not develop explicit, or at least conscious, procedures for dealing with it.
Slightly reframing a question that Craig McEwen and his colleagues pose, we should consider whether the blending of mediation and the work of lawyers will favorably transform the practices of both law and mediation, thus justifying McEwen's call to "bring in the lawyers," or whether lawyers will co-opt, capture, and legalize mediation to the detriment of both law and mediation practices. My answer is "probably both."
Relying primarily on the research on mandatory divorce mediation in Maine, McEwen et al. argue that
[l]awyer participation in the mediation sessions permits intervention on behalf of clients and buffers pressures to settle. Lawyers may also counsel clients to moderate extreme demands. In addition, once lawyers become accustomed to mediation, lawyer involvement in mandated mediation does not appear to prevent the meaningful participation of parties or inhibit emotional expression between spouses.Not only has lawyer participation stabilized mediation, McEwen and his colleagues argue, but it may have moderated lawyers' adversarial attitudes about negotiation outside of mediation.
On the other hand, Professor Carrie Menkel-Meadow and others worry that institutionalization of mediation in the courts and the attendant lawyer participation have corrupted mediation without particularly changing lawyers' adversarial attitudes. She finds that what is called "mediation" (at least of the court-ordered variety) is often "just another stop in the 'litigation' game which provides an opportunity for the manipulation of rules, time, information, and ultimately, money." Similarly, mediators Nancy Foster and Joan Kelly express concern about "replicat[ing] the values, norms, assumptions, and procedures of the adversarial divorce process."
As many analysts have noted, mediation practices vary widely, so it should not be surprising that in some areas mediation and related lawyering practices take on the sunny cast that McEwen et al. depict in Maine, and that in other areas these practices have a darker (or at best a more mixed) image, as McAdoo and Welsh describe regarding Hennepin County mediation and Hyman et al. find in lawyer-to-lawyer negotiation in New Jersey. Even these geographic distinctions are too crude, as there are probably significant variations within most practice communities.
Rather than try to determine which portrayal is more accurate, I believe it makes more sense to frankly acknowledge the reality in all of these accounts. Indeed, when analyzed carefully, I think these pictures can be integrated fairly easily, yielding a composite of a glass that is both part empty and part full. McEwen and his colleagues Professors Lynn Mather, Nancy Rogers, and Richard Maiman have performed a great service by documenting liti-mediation practices in Maine and identifying important benefits that may accrue from routinely involving lawyers in mediation practice. McEwen et al. make a compelling case that Maine-style practices can benefit principals, mediators, lawyers, and the legal system more generally. On the other hand, regular participation of lawyers in liti-mediation practice can easily spoil important benefits of mediation, especially the potential for helping principals in disputes retain and responsibly exercise the power to resolve their own problems.
On balance, I would not support an unqualified call either to "bring in the lawyers" or to keep them out. Without appropriate precautions (and perhaps even with them), having lawyers regularly participate in mediation can predictably lead to the undermining of important values that mediation can promote, particularly the principals' careful exercise of their responsibility to make decisions about their disputes. On the other hand, having lawyers participate in mediation can provide real benefits and may be the optimal process in many cases, especially if some or all of the principals would have difficulty protecting their interests without professional advocates to speak for them.
How will lawyering and mediation practices transform each other in the future? I submit that this will depend on the individual and collective values, decisions, and commitments of the actors in this realm. We should expect that this will vary greatly by local culture and that local culture can, to a significant extent, be consciously developed. I conclude with some recommendations for how various actors in this collective drama might help bring this about.
I encourage mediators to embrace a great diversity of practices under the "mediation" label. Mediators of various persuasions (e.g., differently valuing promotion of settlement and empowerment) have good reasons to hold their values, and also have legitimate concerns about the implications of other philosophies. There is some merit to most mediation philosophies, and we should resist the temptation (which I confess to succumb to at times) to elevate our own approach as "real" mediation and denigrate others as false substitutes that should not share the mediation franchise. Though disparaging other approaches may feel satisfying in the moment, I am convinced that it is a counterproductive long-term strategy. It is unlikely that any camp will prevail completely, and if perchance one does, mediators, and, more importantly, principals, will lose the precious values of diversity and choice.
Instead, it would be much more helpful for adherents of differing mediation philosophies in local mediation communities to respectfully work together to concretely classify their differences as an aid to mediation consumers. Various methods exist for mediators to do this. One method is to observe and then discuss each others' work. Another is to participate in peer consultation groups to discuss mediation cases, styles, and techniques. A third method is to operate a speaker's bureau or other public education program. I participated in such a group, which developed a training program for speakers and a directory of local mediators. Our discussions regarding how to present mediation to our community helped us identify relevant distinctions between mediation services. Given the critical role that lawyers play in liti-mediation culture—especially as mediation shoppers—it would be especially important to develop materials addressing lawyers' particular interests in mediation as well as mediators' concerns about lawyer participation in mediation. When attorneys attend mediations, mediators should consider discussing at the outset how the principals would like the attorneys to participate. Those especially interested in promoting disputants' responsibility for making dispute resolution decisions should find a public education strategy to be particularly appealing.
I encourage mediators primarily committed to an empowerment philosophy to appreciate the values of settlement and efficiency in mediation, especially for principals making informed choices and selecting mediators with those orientations. If mediators provide reasonable disclosure to principals about their procedures and gain the principals' consent to use those procedures, then these are legitimate choices that should be respected. By the same token, I encourage settlement-oriented mediators to appreciate that principals may have goals that they value as much or more than settlement itself. Rather than assuming that settlement is the only or primary goal, I encourage these mediators to assess and respect the principals' goals and priorities, recognizing that the principals' perspectives may well be somewhat different than those of their lawyers. Settlors should consider using at least some of the practices promoting high-quality consent, even if they do not adopt all of them. I would hope that all mediators become more aware of their own mediation styles and philosophies and describe them clearly, both in the shopping process and the mediation process itself.
To serve their clients' interests, and thus serve their own interests, lawyers should become familiar with the various styles of mediation practice in their local culture so they can competently advise clients about use of mediation, select mediators appropriate for particular cases, and constructively participate in mediation as appropriate. Given that mediation offers the special opportunity for a problem-solving approach to negotiation, which many lawyers value, lawyers should use their role as mediation shoppers to especially assess whether a problem-solving approach would be appropriate in particular cases and whether particular mediators would use it. Lawyers should also be sensitive to the impact of their participation and how it may affect (and sometimes impair) the quality of mediation offered and their clients' opportunities to assume responsibility for their decisions. Thus, lawyers should not simply assume that their clients need or want the lawyers to act as the primary advocates in mediation and should discuss with their clients the range of possible roles that the lawyer might take.
As liti-mediation becomes more common, law schools should prepare their students to advise and represent clients regarding mediation as described in the preceding subpart. Indeed, law schools have been making progress in adding courses on mediation and ADR to their curricula. Very few ADR course offerings existed a decade ago. Today, most law schools provide some ADR courses, although these are often electives available only to a small fraction of the students. Although some schools, like the University of Missouri-Columbia, integrate ADR material into all the required first-year courses, this is beyond what most law schools are likely to do in the near future. At a minimum, however, all law schools should include some coverage of ADR in required courses like civil procedure and ethical lawyering/professional responsibility. Given the widespread use of mediation in family cases, mediation should be covered in family law courses as well. While law professors should certainly be free to expound their own philosophies of mediation in courses teaching mediation skills, as a pluralist, I would hope that they would identify and legitimize a variety of styles and philosophies of mediation, discussing the benefits and problems of each. I would also hope that they would specifically address questions about the effects of lawyer participation in mediation and strategies that mediators might use to work constructively with lawyers on behalf of their joint clients.
Officials responsible for making and implementing mediation policy should act based on an appreciation of both the reach and limits of legal authority. On one hand, courts' authority to decide cases gives them great influence, even in formally nonbinding suggestions. Thus, a judge's comment or a policy merely encouraging the use of mediation may be widely interpreted as a directive that may result in formal or informal sanctions if the "suggestion" is not followed. If officials do not intend such statements to be interpreted as being mandatory or carrying even informal sanctions, they must say so clearly. In addition, officials dealing with court policy and administration are often understandably concerned about keeping court dockets moving by regularly settling a steady stream of cases. While this is certainly a legitimate goal, it is often in tension with other goals of dispute resolution. Of particular concern here is the potentially adverse impact of time and other settlement pressures on the disputants' exercise of their decisionmaking responsibilities. Unless officials make a conscious and careful effort to protect against inappropriate pressures, such pressures may well become a regular part of the legal culture.
Although judges and other public officials dealing with dispute resolution have great authority, they are often in a difficult position to manage these processes because the regulatory tools generally used are blunt instruments and their policy directives often do not fully "penetrate" into daily practice. As McEwen et al. persuasively argue, many regulations intended to protect against unfairness in mediation are ill-defined, vague, contradictory, difficult to implement, and unlikely to be effective, but likely to increase costs. Indeed, there is a risk that such regulation will actually cause harm by lulling public officials and/or the general public into a false sense of security. Under these circumstances, I have no general prescription for officials other than to be cautious and not assume that official policies will be simply and directly implemented as intended. As we have seen with official "suggestions" to consider or use mediation, informal pressures may be quite powerful and sometimes override official policies. Indeed, various nonregulatory approaches may be more effective in assuring quality and achieving social goals. Thus, I see regulation as only one—and not necessarily the most important—component of a comprehensive approach to promote positive values in mediation.
This Article suggests a narrow agenda for empirical research as well as a broad one. Starting with the narrower agenda, in Part II of this Article, I identified some distinctions that practitioners and analysts have used to differentiate mediators. Are these distinctions, or perhaps other "native concepts," actually used in the mediation market? In Part III, I outlined a set of behavioral factors describing the quality of consent in mediation. Are these (or other factors) valid indicators? How can these factors be measured concretely? In Part IV, I hypothesized about possible changes that might occur in lawyering and mediation practices as part of the development of liti-mediation culture. Which, if any, of these changes are actually occurring and why?
More broadly, the contemporary co-evolution of lawyering and mediation practices provides a wonderful opportunity to study the development of professional cultures and markets. We are now in a period when definitions of legitimate practice are coalescing, albeit in varying configurations in different local areas. It would be fascinating to analyze the forces leading to the development of particular local disputing cultures. One possibility is that general indigenous norms (i.e., norms not specifically relating to dispute resolution procedures) affect the evolution of norms about dispute resolution. If so, the development of mediation practice (or the predominance of a particular style of mediation) in a community may be a function of more general attitudes about human relationships in that community. Thus, we might hypothesize that liti-mediation culture may be more likely to be adopted in communities where residents have more cooperative relationships than communities with more adversarial relationships. Similarly, liti-mediation culture may be more likely to grow in more interconnected communities. Alternatively, there may be an inverse relationship such that mediation may especially take hold in those communities where indigenous social connections are especially frayed or lacking.
Is the development of a local disputing culture a function of the availability and perceived quality of indigenous alternatives for handling disputes? For example, is the growth of formal mediation a result of dissatisfaction with existing informal dispute processes? Or problems with the local courts? Or reactions to initial experiments with mediation?
Are there particular types of individuals and institutions that play key roles in the evolution of local disputing cultures? The obvious suspects include lawyers, judges, mediators, public officials, and other professionals and community leaders. Perhaps less obvious may be the activity of intellectual and organizational entrepreneurs who provide the conceptual and material structures needed to sustain a culture.
To what extent is the development of local disputing culture a result of historical coincidence of several (or certain) of these factors at the same time or the fact that significant events have (or have not) previously occurred?
The better we can answer these questions, the better we will be able to anticipate and shape the future of mediation. If the spread of liti-mediation cultures continues, we can expect that both lawyering and mediation practices will be profoundly affected. Although some of the changes would presumably be beyond our control, this Article suggests ways that various actors can help define and improve the range of disputing practices in their local communities.