[*] Fonvielle & Hinkle Professor of Litigation, Florida State University College of Law. B.A., University of Minnesota, 1977; J.D., Yale Law School, 1981. Special thanks to James Alfini, E. Donald Elliot, Ann McGinley, Robert Moberly, Sharon Press, Mark Seidenfeld, and Jean Sternlight for ideas and assistance. Thanks also to the Florida Dispute Resolution Center staff as well as the Fifth Annual DRC Conference panelists and participants, and to Dean Donald Weidner and the Florida State University College of Law for continued support, which included research leave time during which this Article was finalized. Return to text.

[1] See Act effective Jan. 1, 1988, ch. 87-173, 1987 Fla. Laws 1202 (codified as amended in scattered sections of FLA. STAT. ch. 44 (1995 & Supp. 1996)). Return to text.

[2] See Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. (forthcoming 1997) (noting growth of mediator ethical costs and emerging questions). Return to text.

[3] See James J. Alfini, Moderator, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919, 922, 927-28, 932, 934-35 (1997) [hereinafter Panel Discussion]. Return to text.

[4] See James J. Alfini, Trashing, Bashing, and Hashing It Out: Is This the End of "Good Mediation"?, 19 FLA. ST. U. L. REV. 47, 47-50, 73-74 (1991) (noting that many or even the bulk of mediation professionals define proper or "good" mediation as employing exclusively facilitative approaches that preside over party-generated resolutions and suggest areas for party exploration, but refrain from providing legal judgments or rendering evaluation of the matter or any party positions). Return to text.

[5] A recent exception, published just after the panel discussion, is Jacqueline M. Nolan-Haley, Court Mediation and the Search for Justice Through Law, 74 WASH. U. L.Q. 47, 62-75 (1996), which focuses on the degree to which mediation differs according to whether it occurs solely through the parties' efforts or is required as part of the court-related dispute resolution process. Although Professor Nolan-Haley does not emphasize the facilitative-evaluative debate, it is apparent that she concludes that a court-affiliated mediator should, on occasion, take affirmative steps to prevent the mediation from becoming an arena of injustice, even when the parties appear to have made a "voluntary" agreement. Although this proactive mediator should ordinarily avoid direct evaluation if possible, Professor Nolan-Haley's concern for unrepresented parties and for mediation outcomes that, at least largely, parallel likely adjudication outcomes implicitly suggests a role for judicious use of evaluative techniques by mediators in appropriate cases. See id. at 88-100. Return to text.

[6] The formal title of the panel discussion—"Evaluative v. Facilitative Mediation: A Discussion"—suggests that the two modes of mediation are polar opposites with no common overlap. See Panel Discussion, supra note 3, at 1. Return to text.

[7] The facilitative-evaluative dichotomy has been widely accepted, at least for purposes of framing discussion, by many ADR commentators. See, e.g., ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION 11-12 (1994) (describing the mediation movement as being at a "crossroads" where it must choose between a "problem-solving" method of mediation, which makes use of evaluative techniques as a spur to settlement, and a "transformative approach," generally described as more facilitative in tone with an eye toward "fostering empowerment" of the parties); Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOTIATION L. REV. 7, 10-16 (1996) (reviewing variants of evaluative and facilitative approaches to mediation); Jeffrey W. Stempel, Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?, 11 OHIO ST. J. ON DISP. RESOL. 297, 340-42 (1996) (noting a variation in mediation and other ADR methods according to whether the device provides a primarily adjudicatory (evaluative) or settlement-brokering (facilitative in combination with evaluative) role); Leonard L. Riskin, Two Concepts of Mediation in the FHA's Farmer-Lender Mediation Program, 45 ADMIN. L. REV. 21, 24-30 (1993) (noting the presence of a primarily evaluative and a primarily facilitative approach in mediations conducted under the auspices of the federal farm lending program); Craig A. McEwen, Pursuing Problem-Solving or Predictive Settlement, 19 FLA. ST. U. L. REV. 77, 78-84 (1991) (describing varieties of evaluative and facilitative approaches); Carrie Menkel-Meadow, Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-Opted or "The Law of ADR", 19 FLA. ST. U. L. REV. 1, 1-4, 18-20 (1991) (perceiving a tension between a facilitative, party-centered view of mediation and systemic goals of case resolution consistent with legal norms); Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 J.L. & POL'Y 7, 19-20 (1986) (describing evaluative and facilitative techniques employed by mediators).

Although some degree of polarity can be a useful analytic device or means of organizing discussion, labels of this type inevitably tend to organize thought as well, sometimes constricting it and leading analysis astray. Return to text.

[8] Professors Robert A. Baruch Bush and Lela Love, for example, are two prominent and respected commentators who can at least be interpreted as arguing that facilitative mediation is the one true way and that any infusion of evaluative techniques essentially corrupts mediation and alchemizes it into something else and something less. For example, Professor Bush has argued that mediation be defined in a more or less singular fashion and, implicitly, that his version of the facilitative approach—transformation and empowerment of the parties—should be the standard:

[F]or every mediator to choose for himself what conception to adopt—which may be close to the present situation—does not seem a good idea at all. The result would be that different mediators would handle similar dilemmas in entirely different fashion. Not only would this be unfair to individuals, it would be damaging to the reputation of mediation as a whole. The lack of uniformity and common standards would undermine confidence in and respect for mediation.
Robert A. Baruch Bush, Ethical Dilemmas in Mediation 20 (1989) [hereinafter Bush, Ethical Dilemmas] (unpublished manuscript, on file with author); see also BUSH & FOLGER, supra note 7, at 7-8; Robert A. Baruch Bush, The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implications (Nat. Inst. Disp. Resol. monograph 1992) (presenting revised and updated version of 1989 paper).

Professor Love makes a similar case for the benefits of facilitation and the need to define mediation as an essentially facilitative enterprise in her contribution to this Symposium. See Lela Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937, 946 (1997) ("A Uniform Understanding of Mediation Is Critical to the Development of the Field.").

For reasons set forth below, I disagree that such singular uniformity is required or desirable. Return to text.

[9] Most polar models are wrong if taken too rigidly. See, e.g., Robert G. Bone, Lon Fuller's Theory of Adjudication and the False Dichotomy Between Dispute Resolution and Public Law Models of Litigation, 75 B.U. L. REV. 1273, 1274-76 (1995) (arguing persuasively that litigation generally serves both dispute resolution and policy-setting functions and that adjudication cannot be exclusively or even primarily defined by either model).

Dichotomous models are useful heuristic devices for aiding understanding, particularly for framing issues and enabling discussion to proceed within a realm of common terminology and understanding. For example, even though I criticize the "evaluative-facilitative" model as inaccurate, this Symposium demonstrates the model's utility for framing and fomenting vigorous discussion. When another participant speaks of facilitative techniques, I have a basic understanding of what they mean. When I talk of evaluative approaches, they know basically what I mean. However, even good heuristic models work mischief when they are used not only to illustrate, but also to limit debate or thought or to create bright line criteria for identifying mediation practice as good or bad, legitimate or illegitimate, or pure or vulgarized. Return to text.

[10] See Panel Discussion, supra note 3, at 934 (comments of Professor Lela Love) (noting that when confronted with a party's desire to enter into an agreement barred by applicable law, mediators can raise "concerns about the legality of the agreement and advise them to get legal counsel"); id. at 922 (comments of Professor Cheryl McDonald) (rejecting the mediator's authority to state an opinion about a judge's decisionmaking reputation in landlord-tenant matters because "there are a lot more ways and more neutral ways in which both parties could be alerted to the possibility that judges, being human beings, might have particular biases that might have an impact on their case and that's something they should both be thinking about"); id. at 928 (comments of Professor McDonald) (noting that to educate parties and attempt to correct misimpressions, a mediator "might point them towards the library" but should not offer his or her own assessment); id. at 923 (comments of Professor Robert Moberly) (noting that Florida Rule for Certified and Court-Appointed Mediators 10.090(d) "doesn't prohibit all opinions, but it does prohibit [a mediator's announced opinion] as to how the judge in that particular case will rule"); id. (comments of Professor Moberly) (suggesting a distinction between permitted and prohibited types of evaluation and urging "great caution in utilizing this sort of opinion and evaluation"); id. at 925 (comments of Professor Moberly) (observing that the mediator is allowed "to provide information . . . . [although] [t]he line between information and advice may not always be so clear"); id. at 929 (comments of Professor Moberly) ("The Florida Rules don't prohibit all or even most evaluations. They only prohibit those specifically mentioned, or those that relate impartiality or self-determination. The Rules specifically allow mediators to point out possible outcomes of the case."); id. at 924 (comments of Javier Perez-Abreu) (accepting the premise that mediators are permitted to at least advise participants of relevant law and legal factors because in doing so "[y]ou're not giving them legal advice, you're telling them what's in the statute and what the law provides. You're not giving an opinion as to the law or as to its merits. I guess if you take it further and start analyzing the statute or interpreting the statute, you may get into trouble"). Return to text.

[11] See id. at 928 (comments of Lawrence M. Watson, Jr.) (observing that the evaluation of party positions is permissible and useful and "becomes dangerous only when you start taking the decisionmaking process away from the parties"); id. at 922 (comments of Jeffrey W. Stempel) (noting that if the mediator provides an assessment of the merits of an issue or the likely adjudication outcome too early in the mediation process, it may warp the process and preclude the opportunity for a mutual resolution by the parties); id. at 928 (comments of Donna Gebhart) (approving nonevaluative techniques of alerting the parties and raising their consciousness as a required prelude to offering an assessment of position, circumstances, or possible outcomes). Return to text.

[12] See, e.g., Penelope E. Bryan, Killing Us Softly: Divorce Mediation and the Politics of Power, 40 BUFF. L. REV. 441, 444-46 (1992) (suggesting that mediation's elimination or de-emphasis of legal rights in pursuit of resolution disadvantages the typical woman in a domestic dispute due to the imbalance of power); Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545, 1549-51 (1991) (contending that more informal processes of mediation may discourage women disputants from asserting legal rights and encourage mediators to overlook such rights in seeking resolution of domestic matters). Both of these authors, however, are critical of both evaluative and facilitative mediation: an evaluative mediator might bludgeon a more pliable party into settlement by disparaging her case, while a facilitative mediator might encourage her to resolve the matter quickly, even at substantial cost to her legal entitlements. Return to text.

[13] See Joseph Singer, Nonjudicial Resolution Mechanisms: The Effects on Justice for the Poor, 13 CLEARINGHOUSE REV. 569, 575 (1979) ("It is generally agreed that mediation between parties of significantly unequal power is inappropriate."); see generally RICHARD ABELLED, THE POLITICS OF INFORMAL JUSTICE (1982) (various contributors arguing that weaker parties do better in more formal disputing systems). Return to text.

[14] See Panel Discussion, supra note 3, at 921 (comments of Moderator James J. Alfini):

The first scenario I'd like to present [to the panel] is basically one you would find in the county courts in Florida. It's a landlord-tenant dispute. It's a dispute over the withholding of rent until an unsafe condition in an apartment is fixed up. Both parties, as is the case in most county mediations, are unrepresented. Both the landlord is unrepresented, and the tenant is unrepresented.
See also id. at 928 (comments of Dean Alfini):

Let's move on to the context in which we generally see the evaluative versus facilitative issues most clearly framed: big civil case mediation. Here in Florida, this is circuit court mediation. We have a circuit court mediation, a personal injury case, and the insurance adjuster is taking a hard line that there is no liability in this case. The mediator is a retired judge, and he knows, or thinks he knows that juries almost always find liability in these kinds of cases in that venue. May he reveal this to the parties? Return to text.

[15] In his professional responsibility casebook, Professor Stephen Gillers uses a similar hypothetical to prompt discussion regarding the lawyer's duty to settle a claim in the manner desired by the client, even though the lawyer thinks the proposal is completely inadequate and unfair to the client. See STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEMS OF LAW AND ETHICS 85-86 (4th ed. 1995) [hereinafter GILLERS, REGULATION OF LAWYERS] ("Accept the Offer" problem); see also STEPHEN GILLERS, TEACHER'S MANUAL FOR REGULATION OF LAWYERS: PROBLEMS OF LAW AND ETHICS 40 (4th ed. 1995) [hereinafter GILLERS, TEACHER'S MANUAL] (commentary on problem). In the hypothetical, a matrimonial lawyer is faced with

a low-ball offer, in the ballpark for first offers but low and obviously an invitation for a counteroffer. I presented the offer to [the client] because I'm supposed to and told her not to be offended it's so low . . . . What she said next blew me away. "Take it." She doesn't want to negotiate, not even if she assumes—as I told her based on my experience she should—that I can get another $250,000 on the property division and $35,000 a year more on the support. Maybe more.

GILLERS, REGULATION OF LAWYERS, supra, at 86.

Professor Gillers concludes that the lawyer may continue to advise the client, implore her not to settle so quickly, and even withdraw (pursuant to Model Rule of Professional Responsibility 1.16(b)(3)) because he finds the client's decision "repugnant or imprudent." GILLERS, TEACHER'S MANUAL, supra, at 40. The lawyer may not, however, obstruct or sabotage the settlement if the duly informed client continues to insist on the low-ball offer.

Although mediators are not lawyers and do not represent the parties (and therefore should not give "legal advice" to the parties), it seems incongruous that a mediator who presides over the case due to court order has, under the facilitative model, so little discretion to attempt to prevent foolish settlements. The lawyer can not only advise the client, but also can fire a warning shot across the client's metaphorical bow by threatening to withdraw. The mediator can withdraw but not advise. Undoubtedly, the mediator can also ask the probing questions noted in the text. At some point, however, probing questions may become tantamount to advice or evaluation. Fans of the facilitative model would forbid this. I would not only endorse it in situations such as the lopsided divorce-settlement hypothetical, but would also urge that mediators be permitted to leapfrog the indirect approach, at least when a disputant has no counsel or has inadequate counsel. Ultimately, however, the mediator, like the lawyer or judge, probably must permit competent parties to enter into even foolish settlements, unless the proposed agreement is not just unwise but unconscionable. Return to text.

[16] At least I hope no court would tolerate it, although the settlement might be deemed unwise but not unconscionable or violative of public policy. If the settlement imperils the children's well-being, a court would presumably have authority to reject it (if in midtrial) or modify it on later motion. Whatever the trial court's decision, it would be subject to reasonably rigorous appellate review that would be likely to correct at least gross errors of law, procedure, or equitable distribution. By contrast, judicial review of private settlements or mediated settlements is highly deferential. A court at either the trial or appellate level is unlikely to disturb any but the most facially unconscionable mediated settlements. Return to text.

[17] See Craig A. McEwen et. al, Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317, 1322-23, 1358-62 (1995) (concluding that the presence of attorneys substantially reduces the possibility that one party will take advantage of the other in family law mediation). Return to text.

[18] Love, supra note 8, at 942-43. Return to text.

[19] This scene should probably be avoided by the statutory authority of courts to direct disputes away from mediation when it is deemed futile. Stranger things have happened, however. See Albert W. Alschuler, Mediation with a Mugger: The Shortage of Adjudicative Services and the Need for a Two-Tier Trial System in Civil Cases, 99 HARV. L. REV. 1808, 1809-11 (1986) (describing a failed victim-offender mediation attempt involving mugging victim Bernhard Goetz, who later became notorious for the shooting of men intimidating him on a New York City subway train); Jennifer Gerarda Brown, The Use of Mediation to Resolve Criminal Cases: A Procedural Critique, 43 EMORY L.J. 1247, 1273 (1994) (finding victim-offender mediation widespread but ill-advised in criminal matters). Return to text.

[20] When disputants have competent counsel, many of the concerns attending mediation or any other form of dispute resolution are greatly allayed. See McEwen, supra note 17, at 1322-23, 1346-47, 1358-62 (concluding that potential unfairness due to imbalances of power or sophistication are greatly reduced when parties have counsel). Unfortunately, a high percentage of parties participating in court-mandated ADR do so without lawyers. See id. at 1344-52; see also Nolan-Haley, supra note 5, at 82-83, 94-95 (noting that many or perhaps most disputants in mandatory mediation participate without counsel). Return to text.

[21] Jim Alfini, graciously commenting on this Article, found the hypothetical jarring and over-the-top in its absurdity. Although his grasp of reality is probably better than mine, I disagree with Alfini: if we had better information about characteristics of the parties, I predict we would find many mismatches between a disputant who is essentially fair and one who is ruthlessly selfish. Part of the lawyer's role is to level the playing field.

For a dispiriting example of attempted facilitative mediation when the parties are imbalanced in resources and attitude, see Scott H. Hughes, Elizabeth's Story: Exploring Power Imbalances in Divorce Mediation, 8 GEO. J. LEGAL ETHICS 553 (1995). Notwithstanding legal representation, the wife in this divorce saga appears not to have received either full justice or adequate voluntary resolution. See id. at 595:

Under the laws of many states, attorneys have an ethical duty to advise clients about alternative dispute resolution. Although I would have advised Elizabeth about mediation, I would not have recommended it.

. . . [F]avorable indicators [for a positive outcome] began to melt away during mediation as the ugly presence of the power imbalance between [her husband] Paul and Elizabeth, seemingly dormant, began to reappear from deep within the relationship. Even with the help of her attorney and accountant, Elizabeth could not overcome Paul's power. The push to settle, the persuasive presence of the mediator, and the non-confrontational atmosphere conspired to render Elizabeth impotent against Paul. As the mediation progressed, Paul was more and more competitive and Elizabeth was increasingly cooperative, unconditionally so. Return to text.

[22] See Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073, 1075 (1984) (suggesting that even fair settlements may disserve justice by preventing full and public adjudication of controversies). Professor Fiss is clearly correct in noting that settlement resolutions are not necessarily wise or just. However, he is incorrect to the extent he suggests that adjudication is inevitably a preferred alternative. Courts render plenty of injustice. Disputants should be entitled to avoid or minimize these instances by exiting the system through settlement, provided that the settlement, even if unwise, is not coerced or unconscionable. When ADR is court-ordered, courts must be sensitive to the coercion issue lurking simply because the parties have been ordered to mediate, arbitrate, or obtain a third-party evaluation. Return to text.

[23] See, e.g., BUSH & FOLGER, supra note 7, at 18-21; see also Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, 14 ALTERNATIVES TO HIGH COST LITIG. 31, 31-33 (1996). Return to text.

[24] For example, Bush and Folger, although stressing facilitation, also emphasize the need to empower the parties and prompt them to recognize the concerns of one another. They also advise mediators to note and compensate for differential power relationships. See BUSH & FOLGER, supra note 7, at 70-85. Return to text.

[25] See, e.g., Panel Discussion, supra note 3, at 922 (comments of Jeffrey W. Stempel); id. at 924 (comments of Lawrence M. Watson, Jr.). Return to text.

[26] See generally Panel Discussion, supra note 3 (despite ideological differences among participants, general concerns existed regarding appropriate mediator behavior in concrete situations). Return to text.

[27] Love, supra note 8, at 939 (emphasis added). Return to text.

[28] FLA. STAT. § 44.1011(2) (1995). Return to text.

[29] FLA. R. CERT. & CT.- APPTD. MEDIATORS Rule 10.020(b) (preamble) (emphasis added); see also FLA. STAT. § 44.1011(2) (1995). Return to text.

[30] FLA. R. CERT. & CT.- APPTD. MEDIATORS 10.020(d) (emphasis added). Return to text.

[31] FLA. R. CERT. & CT.- APPTD. MEDIATORS 10.020(c). Return to text.

[32] FLA. R. CERT. & CT.- APPTD. MEDIATORS 10.060(f) (wording of the self-determination article of the Rules). Return to text.

[33] FLA. R. CERT. & CT.- APPTD. MEDIATORS 10.050(b) (providing that the "mediator shall assist the parties in evaluating the benefits, risks, and costs of mediation and alternative methods of problem solving available to them"). Return to text.

[34] FLA. R. CERT. & CT.- APPTD. MEDIATORS 10.060 committee note. Return to text.

[35] See id. Return to text.

[36] For example: "Settlement of a legal dispute is an important event and becomes no less important because the settlement results from a mediated agreement. Any settlement you make as a result of this mediation will be legally binding and will conclude the matter at issue. You may take time to consult with a lawyer or other professionals prior to agreeing to any settlement that comes up during your mediation efforts." Return to text.

[37] FLA. STAT. § 44.102(2)(b) (Supp. 1996). Return to text.

[38] I realize that many observers would characterize it as abusive for a spouse to essentially slough off all child rearing onto the other spouse and devote available time to earning money and developing a career while the other spouse performs nanny operations at the expense of her own education and career. Without taking a position on this issue, I am using "abuse" to refer to more distinct and focused mistreatment of a spouse or child by the other spouse, such as physical violence or sustained verbal attack or other psychological abuse. This connotation of abuse, which I believe to be that generally held by judges, would not apply to cases such as the investment banker's divorce and to other domestic relations matters in which nonevaluative mediation poses significant issues of fairness and tacit coercion. Return to text.

[39] See Risette Posey, Latest MQAP Advisory Opinions, RESOL. REP., Oct. 1995, at 2 (Mediator Qualifications Advisory Panel Op. 95-002); id. at 14 (Mediator Qualifications Advisory Panel Op. 95-005). Return to text.

[40] See id. at 2 (Mediator Qualifications Advisory Panel Op. 95-002). Return to text.

[41] Id. Return to text.

[42] Id. (emphasis omitted). Return to text.

[43] Id. at 3 (emphasis omitted). Return to text.

[44] Id. (emphasis omitted). Return to text.

[45] Id. (emphasis omitted). Return to text.

[46] Although the "you'll be paying forever" statement is, of course, not literally true for a relatively small debt (even at 30% annual interest, monthly payments of $110 will extinguish the debt in about 18 months, at a total approaching twice the outstanding debt principal), a more charitable Panel might have interpreted the mediator's comment as a figure of speech. "You'll be paying forever" can be construed simply to suggest that the interest payments will be out of proportion to the debt if repayment occurs on a limited piecemeal basis under a high interest rate. If the debt had been $112,500 instead of $1250, and the settlement provided for $11,250 per month payments by the debtor, the mediator's statement about proportionality would be even more telling. On balance, however, this type of comment is both too exaggerated and too evaluative to be permitted absent compelling circumstances not reflected in the hypothetical. Return to text.

[47] Posey, supra note 39, at 3 (summary of Mediator Qualifications Advisory Panel Op. 95-002). Return to text.

[48] Id. at 5. Return to text.

[49] Id. at 4. Return to text.

[50] Id. at 5. The Panel did provide something of an escape valve for the pressure felt by the mediator in this hypothetical situation:

The mediator may, however, often obtain the desired information if the question is framed more generally. . . . by asking the following: 'Is interest levied on a judgment? Do either of you know?' These two questions set the stage for the parties to provide information to the mediator and to each other without placing the mediator in the position of providing that information. In so doing, the mediator assists in maximizing the exploration of alternatives, and adheres to the principles of fairness, full disclosure, self determination, and the needs and interests of the participants [Rule 10.020(d)(1), (2), (5)], while honoring the commitment to all parties to move toward an agreement [Rule 10.070(a)].

Id. Return to text.

[51] See FLA. STAT. ch. 44 (1995 & Supp. 1996). Return to text.

[52] The Panel opinion is also regarded as extreme by Professor Moberly, an architect of the Florida mediation system, but someone with more agnosticism about evaluation than me. See Moberly, supra note 2 (evaluation permissible as last resort if even-handed); see also Robert B. Moberly, Ethical Standards for Court-Appointed Mediators and Florida's Mandatory Mediation Experiment, 21 FLA. ST. U. L. REV. 701, 712-15 (1994) (stating that mediators may evaluate but must remain impartial). Return to text.

[53] Despite their professed commitment to the moral high ground of noninterference, facilitative mediators are vulnerable on this score. For example, many mediators have taken to referring to the disputing parties as the mediator's "clients" or "principals" rather than merely the disputants who have retained the mediator. Although this characterization is touching in its connotative closeness, it misperceives the relationship. A disputant does not use a mediator as an "agent" in the way in which clients or other principals use lawyers or representatives as agents. In addition, of course, the party has no particular claim to the mediator's zealous advocacy (far from it). The mediator has a duty to serve the parties and the situation in the aggregate rather than to represent either party as such. Return to text.

[54] See FLA. CONST. art. X, § 4. Indeed, Florida law is famous or perhaps infamous in that the state's homestead exemption has no limit. A millionaire deadbeat with a $100 million estate and a billion dollars in debts can live in the estate secure in the knowledge that the creditors may never take any portion of the property. Most notoriously, former baseball commissioner Bowie Kuhn and former Kidder, Peabody investment banker Martin Siegel, accused of illegal insider training, are generally perceived as having relocated to Florida when their debt and other legal problems arose to obtain the benefit of the unlimited homestead exemption. See generally JAMES B. STEWART, DEN OF THIEVES: THE UNTOLD STORY OF THE MEN WHO PLUNDERED WALL STREET AND THE CHASE THAT BROUGHT THEM DOWN (1991) (describing Siegel's move from Connecticut to Florida during the fallout from the Dennis Levine-Ivan Boesky-Michael Milken insider trading scandals). Return to text.

[55] Even suggesting legal aid counsel may be futile for less sophisticated debtors who are hesitant to approach lawyers or who, although poor, may fail to meet legal aid guidelines for obtaining free legal assistance. See Russell G. Pearce et al., Project, An Assessment of Alternative Strategies for Increasing Access to Legal Services, 90 YALE L.J. 122, 140-45 (1980) (finding, based on a statistical analysis of the ABA-ABF Survey of Legal Needs of the Public, that the use of lawyers is reduced when individuals have no pre-existing social or business contact with them). Return to text.

[56] Posey, supra note 39, at 14 (Mediator Qualifications Advisory Panel Op. 95-005) (emphasis omitted). Return to text.

[57] Id. at 15. Return to text.

[58] Id. at 14 (emphasis omitted). Return to text.

[59] Id. at 15. Return to text.

[60] Id. at 16. Return to text.

[61] Of course, efforts to encourage the parties to discuss their feelings do not inevitably provide positive catharsis. For example, if a marriage is fraught with conflict and anger, airing those feelings may only make the parties more confrontational, impeding further mediation and settlement. Sending husband and wife to a marriage counselor is undoubtedly a facilitative strategy, but it may not lead to cooperation if during the course of venting their frustrations, husband and wife lose whatever remaining reservoir of goodwill they possessed when first entering mediation. Return to text.

[62] See COMMITTEE ON LONG RANGE PLANNING, JUDICIAL CONFERENCE OF THE U.S., LONG RANGE PLAN FOR THE FEDERAL COURTS 8-13 (1995) (finding that from 1904 to 1990, the federal appellate caseload alone increased 3868% while the number of appellate judges increased from 27 to 167 (in 1994) and that the civil case load alone has increased by more than 1400% since 1960, making it practically impossible for the judicial system to resolve cases swiftly and on a steady basis). Return to text.

[63] In Florida, for example, the court may order nonbinding arbitration. See FLA. STAT. § 44.103 (1995). However, Florida courts have ordered arbitration only infrequently in the more than eight years of the statutory authority. For example, from 1991 through 1995, fewer than 500 cases were arbitrated, while more than 300,000 matters were mediated in county, family, and circuit court mediation programs. See Telephone Interview with Sharon Press, Director, Fla. Disp. Resol. Ctr. (Jan. 28, 1997). Return to text.

[64] The court can also order arbitration, even though it, like mediation, is nonbinding. Return to text.

[65] This is not always so. Settlement agreements are contracts, and the judicial system has long policed contracts using the yardstick of unconscionability. Unconscionability is generally defined as an agreement that is unreasonably favorable to one of the parties. See E. ALLAN FARNSWORTH, CONTRACTS § 4.28, at 327-29 (2d ed. 1991). Return to text.

[66] Again, this freedom to make bad deals is not absolute. Class action settlements must ordinarily be approved by the court, as must settlements involving minors or antitrust claims by the government. Return to text.

[67] At a minimum, however, the legal system has provided default rules that will govern resolution of the dispute if it is litigated. This creates a "shadow of the law" under which the parties must bargain. See Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 968-70 (1979) (noting that when reaching divorce settlements, disputants negotiate and settle cases with an eye to the range of likely outcomes at trial if settlement is not achieved). Return to text.

[68] See ZELIG (United Artists 1985). Return to text.

[69] See Alfini, supra note 4, at 66-72 (identifying the popular tactic of "trashing" that is highly evaluative, another "bashing" tactic that strongly incorporates evaluation, and the third identified tactic of "hashing" that most closely resembles the facilitative model of mediation). Return to text.

[70] See John Lande, How Will Lawyering and Mediation Practices Transform One Another?, 24 FLA. ST. U. L. REV. 839, 844-53 (1997); see also Margaret A. Jacobs, Renting Justice: Retired Judges Seize Rising Role in Settling Disputes in California, WALL ST. J., July 26, 1996, at A1. Return to text.

[71] See, e.g., Panel Discussion, supra note 3, at 929 (comments of Professor Lela Love) ("It would be a different case if the parties chose the mediator for her evaluation abilities and specifically requested the mediator's evaluation. In that situation, the process is 'mixed'—not pure mediation . . . ."). Return to text.

[72] Bush, Ethical Dilemmas, supra note 8, at 17-18; see also BUSH & FOLGER, supra note 7, at 11-12. Return to text.

[73] There are exceptions, of course, in any modern welfare state. Medicare, Medicaid, Social Security, public education, and the income tax can all be viewed as attempts at distributive justice, and to the extent that these programs create concrete legal rights, courts enforcing these rights can be seen as effecting distributive as well as corrective justice. Return to text.

[74] See McEwen, supra note 17, at 1322-23, 1346-48, 1358-62 (suggesting that lawyer involvement makes mediation outcomes fairer, more rational, and more in general conformity with prevailing law and policy). Return to text.

[75] See Mnookin & Kornhauser, supra note 67, at 968. Return to text.

[76] See Marc Galanter, Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95, 103-04 (1974) (suggesting that experienced litigants as well as those with greater resources will generally have advantage over episodic or poorer opponents). Return to text.

[77] For example, under current rules requiring securities fraud to be pleaded with heightened particularity, a disgruntled investor's claim may not be sufficiently detailed to survive a motion to dismiss in litigation, but New York Stock Exchange arbitrators may hear the matter and award damages, something that quite likely would not have occurred had strict legal formality been observed. See Marc I. Steinberg, Securities Arbitration: Better for Investors than the Courts?, 62 BROOK. L. REV. (forthcoming 1997) (noting many securities plaintiffs will do better in arbitration than in litigation). Return to text.

[78] MARK SEIDENFELD, MICROECONOMIC PREDICATES TO LAW AND ECONOMICS 85 (1996). Although considered a branch of microeconomics, game theory involves a significant analytic wrinkle:

Traditionally, price theory posits rational economic actors who pursue the maximization of wealth straightforwardly in situations for which the opportunities available to one individual are considered independent of the choices of other individuals. In reality, however, the economic opportunities available to one actor may depend directly on the choices made by another.

Id. at 85. For further discussion of game theory, see id. at 85-89. See also DOUGLAS G. BAIRD ET AL., GAME THEORY AND THE LAW (1994); ERIC RASMUSEN, GAMES AND INFORMATION: AN INTRODUCTION TO GAME THEORY (1989) (game theory suggests that parties will seize opportunities for strategic behavior, at least when the "game" is not a cooperative one, but they can be at least partially restrained by enforcement of particular rules or exposure of strategies); DONALD P. GREEN & IAN SHAPIRO, PATHOLOGIES OF RATIONAL CHOICE THEORY: A CRITIQUE OF APPLICATIONS IN POLITICAL SCIENCE 130 (1994) (noting literature that observed a game player to have "obtained a disproportionately large payoff by misrepresenting her utility function in order to upset consensus on a fair outcome"); id. at 142-44 (noting that current political science scholarship sees most games as noncooperative rather than cooperative); Ian Ayres, Playing Games with the Law, 42 STAN. L. REV. 1291, 1295-96 (1990) (noting that even with well-defined "rules" of the "game," such as litigation or settlement, parties will try to take advantage of one another).

The classic illustration of game theory is the "prisoner's dilemma" hypothetical, which posits that two suspects have been separated by the police and offered incentives to turn against one another and provide incriminating testimony. The first suspect to agree to cooperate is offered a plea bargain that involves no incarceration, while the government will seek the maximum ten-year sentence against the noncooperating defendant. If both remain silent, the expected chance of conviction is only 10%, making the "estimated" sentence for each one year in jail if they remain firm in their noncooperation. If both cooperate, they will be convicted and the prosecutor will seek seven-year sentences. Under these circumstances, each defendant has a powerful incentive to race to cooperate to save himself at the expense of the co-defendant. In reality, of course, the probabilities and penalties are seldom so clear cut, but the theory works in practice (i.e., despite the adage about honor among thieves, many criminals turn state's evidence to obtain a lighter sentence) and has substantial value in explaining strategic behavior. Return to text.

[79] For a description of the prisoner's dilemma, see supra note 78. Return to text.

[80] See discussion supra Part III (describing Florida law, as interpreted by Florida Mediator Qualifications Advisory Panel, as precluding any hint of mediator evaluation). Return to text.

[81] See BAILEY KUKLIN & JEFFREY W. STEMPEL, FOUNDATIONS OF THE LAW: AN INTERDISCIPLINARY AND JURISDICTIONAL PRIMER 44-45 (1994). Return to text.

[82] See id. at 45. Return to text.

[83] See J.B. Ruhl, The Fitness of Law: Using Complexity Theory to Describe the Evolution of Law and Society and Its Practical Meaning for Democracy, 49 VAND. L. REV. 1407, 1409-10 (1996). Return to text.

[84] See, e.g., Ian Ayres & Jennifer Gerarda Brown, Economic Rationales for Mediation, 80 VA. L. REV. 323, 324-31 (1994). Return to text.

[85] See E. ALLEN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE 101-06 (1988); see also McEwen, supra note 17, at 1378-84; E. Allan Lind et al., In the Eye of the Beholder: Tort Litigants' Evaluations of Their Experiences in the Civil Justice System, 24 LAW & SOC'Y REV. 953, 980-83 (1990) (noting that disputants have more satisfaction with the process when they can participate and be heard before a neutral third party). Return to text.

[86] See McEwen, supra note 17, at 1378-84 (realizing that a lawyer's contributions of legal rules and options not only protect parties, but also add information that may increase settlement options); see also Ayres & Brown, supra note 84, at 373-85, 395 (suggesting that information imparted by the parties to the mediator, drawn from the parties by the mediator, or contributed by the mediator may increase opportunities for an informal resolution of the conflict). Return to text.

[87] See Stempel, supra note 7, at 361-89 (proposing greater government operation of ADR premised on flexible intake and initial assignment of cases according to specific characteristics). Return to text.

[88] See Kimbrough v. Holiday Inn, 478 F. Supp. 566, 568 (E.D. Pa. 1979) (holding that compulsory court-annexed arbitration did not violate the Seventh Amendment as long as the dissatisfied party may demand a trial de novo with jury). Return to text.