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Forcing mediation upon litigants is not always helpful.

August 17, 2011

Court-ordered or court-referred mediations are now a fixture in this legal community.  I am in favor of, and participate in, court-connected mediations that provide access to mediation at low or no cost to a class of litigants that otherwise might not be able to utilize (i.e., to afford) mediation as a resource. I also recognize that others are ordered or referred to mediation by the court, justifiably, and I participate in these mediations as well, because the courts are choking with pending litigation, they have insufficient budgets/resources to try these cases, it’s a way for me to “give back” to the court, and it suits my own needs to practice my craft regularly, and to meet people.

Notwithstanding the altruistic purposes of the programs in which I participate that support court-connected mediation, I also perceive that some courts brazenly, indiscriminately (unwisely? carelessly? arbitrarily?) order or refer cases to court-annexed mediation, for their own selfish purposes without regard to the wishes of the participants, the sensibilities of the mediators voluntarily serving the courts, or the timing for success.  I participate in these as well, as I must, since I am on the panels that receive these assignments.

In one mediation recently that had to go forward because of the judge, the attorneys knew that the mediation was not well timed (we would say that the matter was not yet ripe for mediation):  insufficient time prior to a court imposed completion date had passed for the attorneys to develop their cases, to commence discovery, to flesh out the issues, even to ready their clients for an otherwise useful, productive, rewarding alternative to trial.  Certainly one or more of the litigants just didn’t want to be there or participate, at all.

Of course, the mediation session was short in duration and unrewarding at best for all concerned.  More specifically, I believe everyone found the session frustrating – the litigants, the attorneys, even the mediator.  It could have been perceived as a waste of time.

Fortunately, the attorneys were smarter than that, and utilized the time well to help their clients prepare for what was coming ahead and to set the stage hopefully for a more productive session sometime in the future.

But forcing this mediation session upon everyone was not such a good idea.  It was perceived as a selfish, intrusive, coercive move by a court, which did not help that day to promote an alternative to trial.


From → Mediation

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