Mediation

Use

Mediation is used in virtually every type of dispute, from the smallest local tort case to the largest complex international affair. Mediation is used primarily to resolve disputes, but it has applications in dispute prevention, transactional bargaining, and planning. Mediation is most often used in discrete civil disputes such as divorce, problems between neighbors, employment problems, and commercial transactions gone awry, but it is also used in large-scale environmental cases, in disputes with governmental agencies (including, among others, the U.S. Internal Revenue Service), and in intellectual property and land use disputes. Many would say that if a dispute could be filed in a court, it could be mediated. However, mediation also may be used in cases in which a court would have no jurisdiction (such as peer-to-peer mediation between high school students having problems sharing a locker).

In the United States, mediation has been instituted in nearly every administrative agency and every court. At the federal level, the Administrative Dispute Resolution Act of 1996, 5 U.S.C. § 571 (2000), and the Civil Justice Reform Act of 1990, 28 U.S.C. § 473 (2000), require that agencies and courts explore alternatives to trials for the disposition of cases. Mediation has become the most widely used alternative method. The vast majority of states have passed similar laws, with similar effect.

Consensual Process

Mediation is consensual and voluntary, at least to the extent that the disputants retain the right to veto any proposed solution. However, in many legal disputes, the parties may be ordered to attend and participate in a mediation session. These orders may come because of a court rule, a judge's order, or a legislative enactment. In these mediations, attendance is mandatory but settlement is not.

In court-ordered mediation, the parties are typically subject to a requirement that they participate in good faith. In this context, judges have defined good faith as sending a person with settlement authority to the mediation for at least the opening session. That person need not ever make an offer or respond to an offer. Thus, good faith in mandatory mediation does not mean the same thing as good faith in negotiation.

The aspiration that mediation be consensual impels that mediation be noncoercive. In the early days of court-ordered mediation, it was common for a mediator to make a report about the parties' behavior in mediation and to pass that report along to the judge overseeing the litigated claim. In the event that mediation resulted in an impasse, the mediator might report that one party or the other caused the impasse, and the assumption was that the judge would retaliate against a recalcitrant party. The threat that a mediator might make an unfavorable report gave the mediator coercive power over the parties. More recently, this practice has changed, and now a mediator's post-mediation report to a judge presiding over a case is rare.

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