Thursday, February 16, 2012
I happened to be sitting with a couple of other mediators listening to this talk, and could tell from their reaction and comments that we had mixed feelings. Of course we all want to make sure litigants continue to have access to the courts, and we hate to see justice delayed, when people have a pressing need for resolution of their disputes. Let me make clear that I personally support higher levels of funding for the court system. On the other hand, mediators tend to see the courts as a bloated, cumbersome alternative to the more enlightened form of dispute resolution we offer. Mediators would like to think they can resolve more cases faster, cheaper and better than the courts can.
Can mediation save the state money? Mediators do sometimes save litigants money, but mainly for legal bills, not as much in court costs. On the other hand, if I can help parties avoid filing an expensive motion, that will relieve a burden on the court system, and if I can settle an entire case, that might help the parties avoid an expensive trial. Still I think it's a dangerous idea to think that we can rely on alternative dispute resolution to help the state deal with budget shortfalls. For one reason, mediation functions best in a symbiotic relationship with the court system. The press of cases moving through the courts also helps move cases through alternative dispute resolution. If court delays increase due to funding shortfalls, that is likely to slow down the pace of all other forms of resolution as well. For another reason, the future of dispute resolution that many mediators imagine, while including a greatly increased role for alternative dispute resolution, is not necessarily going to be a cheaper system to operate. It's just going to operate differently. I don't think we want to encourage the use of mediation just to save money, whether it can do that or not. We want to encourage the use of mediation to increase satisfaction with the system of dispute resolution.
UPDATE (3/20/12): A longer version of this post has been published in the March issue of ADR Times.