Friday, May 8, 2009

Nothing "Alternative" about Mediation

Most lawsuits end by settlement. Mediation is increasingly being relied upon as the court's preferred mode for reaching a settlement. Therefore, instead of being thought of as an adjunct to the "normal" litigation process, mediation needs to be better integrated into the standard procedure for processing lawsuits. Let's start with the courthouse itself. Since most cases are never going to be resolved by trial or any other sort of courtroom procedure, why do we even call it a courthouse? Why not call it, say, a dispute resolution center?

Why start the process by filing a complaint? Would it not make more sense to initiate a dispute resolution proceeding by serving one's adversary with a paper called something like a "notice of dispute," rather than a complaint? Most people's natural response to a complaint is outrage or defensiveness. The complaint provokes an adversary to fight. But a notice advising an adversary that the parties have a conflict that they have not been able to resolve, merely reminds the adversary that both parties have a common problem, and that they need assistance in solving it. So instead of filing an answer, which I once heard a judge call the most useless piece of paper filed in a case, the defendant would file a response indicating that he either agrees that the parties have a dispute, or he agrees with some or all of the claim that the plaintiff is making. Either way, the parties are already making progress in acknowledging their common problem, and beginning to deal with it.

Discovery should also be handled by a mediated process. The rules already encourage the parties to resolve discovery issues by a negotiated agreement, in federal court by requiring an initial meeting of counsel to address discovery and in both state and federal court by requiring the parties to meet and confer before filing any discovery motions. Greater use of mediation at this stage of the proceedings could reduce the need for discovery motions, and get the parties accustomed to resolving issues by negotiation and agreement, rather than by accusation and counter-accusation.

Even as we currently practice, the term "alternative dispute resolution" is outmoded and misleading. It merely stigmatizes a process that is in fact central to the way actual court cases get resolved. But because we consider mediation to be an "alternative" process, it takes place in the hallways, or in an unused courtroom, or a mediator's private office, as if mediation were an unwelcome stepchild that does not belong in court. Instead, mediation should serve as the front office of the dispute resolution system, with the traditional courtroom reserved only for the most intractable of cases, where a public battle over the issues is necessary and appropriate.

(A variation of this post appears on the Southern California Mediation Association website, as well as on my law office blog.)

No comments: