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Those of us who have practiced for more than 30 years remember when mediation, still an under‑utilized tool at the time, became more ubiquitous.
Indiana’s turning point was the early 1990s, when the Supreme Court adopted the statewide ADR Rules effective Jan. 1, 1992, making mediation a routine tool in resolving most civil cases. Many of us were skeptical, but it caught on and is now widely accepted, with the majority of contested divorces settled.
This column looks at three familiar settings — civil settlements, protective orders and criminal plea bargaining — and argues that while it is well‑intended to “work it out,” compromise can entrench the very wrongs we are trained to resist.
Civil cases
The bad news is when a client is urged to accept something from an institution, corporate entity or competitor that has costed‑out wrongdoing as a business expense. A common gripe from environmentalists is that consent decrees blur separation of powers, sideline public participation and non‑settling parties, and lock in what a court would have been unable to order after trial. Put another way, the civil release may function to normalize harm rather than deter it.
Protective orders
Protective orders are civil on paper but enforced with criminal teeth, typically through invasion of privacy charges and contempt, with violations often prosecuted as Class A misdemeanors in Indiana. Serial violations are quite common. When counsel encourages a protected party to “work with” the respondent on side arrangements instead of insisting on formal modification, safety is privatized, setting up the next violation. The unintended consequence is that this quietly teaches that court orders are negotiable suggestions until someone ends up jailed or harmed.
Criminal pleas
Modern criminal justice runs on pleas, which dispose of the vast majority of cases — well over 90% in many jurisdictions. When an innocent or over‑charged defendant pleads guilty to avoid a harsher post‑trial sentence, we can at least agree they are under systemic pressure. Stories are legion about defendants who “admit” guilt for a get‑out‑of‑jail ticket.
Certainly, resolving low‑level cases keeps dockets moving. But does it also sanction dubious searches and overbroad statutes, making unconstitutional practices routine and normalizing the very injustices all sides are sworn to abhor?
What is the takeaway?
None of this is an argument against compromise. But let’s not kid ourselves that it is morally neutral just because both sides sign and the court ratifies.
It is not morally neutral.
The real question is whether the path of least resistance has become a path of shared responsibility for what happens next. The cobra effect — a metaphor for when an attempted solution makes a problem worse — applies here as well.•
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Graham is a criminal and family lawyer in Bloomington. Opinions expressed are those of the author.
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