I recently mediated a case pending in federal court, in which we had a productive session that brought the parties a lot closer to resolution. Both sides had agreed that only the main defendant needed to attend the mediation, as the others lived on the other side of the country and had little willingness or ability to contribute anyway. But at the end of the session, there was still a gap to bridge, and defendants' counsel proposed that he confer with these absent parties to see if they could raise enough additional commitments to close the gap. We left it that counsel would continue settlement discussions between themselves, and call me in if necessary. Both sides left in a positive frame of mind.
Then, in a version of "good cop, bad cop," the court stepped in and scheduled another settlement conference to help push the parties to resolution. I use the term "bad cop" because the court's order was filled with very specific instructions and threats of sanctions. The parties were directed to submit offers and counter-offers at specified dates and times, to appear at the designated time for mediation, to file briefs conforming to very strict guidelines, to make sure that all parties attended and that they had full authority to settle the case. And in case these directives were not followed, the order set forth the exact monetary penalties that would be imposed.
My point is not so much to criticize this approach, even though it is at odds with the voluntary ideal of mediation, because the court's method may also have pushed the case closer to resolution. My point is that courts have a natural tendency to solve problems using the tools of rules, orders and sanctions. That is what courts do. It comes naturally to them. So even when courts hold settlement conferences, they still tend to rely on their customary tools. Sort of like the way Arnold Schwarzenegger dealt with children in the movie "Kindergarten Cop." Effective, maybe, but coming from a mind-set that is fundamentally different from the mediation process. And sometimes that is what the parties want and might even need.
On the other hand, the court's heavy-handed approach might have only created resentment, and still not settle the case. Is that how parties should expect to be treated when they become involved in a lawsuit?
How much coercion is justified to get the job done? What if, for example, courts had a standing order that every time someone files a lawsuit, both sides are fined $1000 per day (make it $10,000 per day in a really big case) until the case is resolved? That would force parties to the bargaining table in a hurry, but would also be antithetical to the business that courts are supposed to be in, of resolving disputes in a just and expeditious manner, according to the law.
Mediators should not need to resort to the tools of coercion. Parties should seek mediation voluntarily, and approach it in the spirit of cooperation and understanding. No one should be forced to settle. Anyway, the costs and risks of litigation are usually sufficient incentive to drive most cases to settlement. Most of the parties I see involved in litigation are in a great deal of pain, and the lawsuit is usually a kind of private hell for them. Why would I want to add to that pain? Mediators do not need to impose additional burdens on the parties. Getting people to recognize that they have the power to end their painful conflict is usually sufficient incentive to settle. And courts should think carefully before penalizing people too severely for failing to settle, unless they want to acknowledge that the business they are in is that of punishing people for using their services.