The Indiana ADR Rules govern five methods of alternative dispute resolution: mediation, nonbinding arbitration, mini trials, summary jury trials and private judging. In the 30-plus years the rules have been in effect, however, only mediation has been used to any significant degree. The fact that the other four ADR methods have seldom — if ever — been used has led some stakeholders and commentators to suggest that the rules should be amended to eliminate the four other methods, leaving only mediation governed by the rules.
It is suggested, however, that the discussions concerning the amendments could provide an opportunity for a wider, more holistic examination and reimagining of the ADR Rules and mediation, generally.
Multidoor courthouse concept
In 1976, the late Frank E.A. Sander, professor of law at Harvard University, delivered a paper at the Pound Conference, an assembly organized to address causes of and potential remedies for popular dissatisfaction with aspects of the civil justice system, particularly civil litigation. Professor Sander’s paper advocated for “a flexible and diverse panoply of dispute resolution processes, with particular types of cases being assigned to differing processes.” An initializing force of the ADR movement, the Pound Conference suggested that the courthouse of the future could have many doors — that some disputes would benefit from mediation, others from arbitration, still others from neutral evaluation, mini trials, private judging, summary jury trials or any number of similar or hybrid processes. Some of these processes were considered facilitative, some evaluative and some adjudicative. Sander envisioned a courthouse with an intake or screening desk, with disputants being assigned to the door that led to the ADR process best suited for their dispute. The challenge — and promise — of ADR, it was argued, was to submit the dispute to the appropriate process — “to fit the forum to the fuss.”
Mediation becomes the ADR form of choice
Although Sander’s view of a courthouse with multiple doors leading to discrete and differing ADR techniques did not emerge in Indiana — nor in most jurisdictions — the core substantive goal of his proposal was nevertheless realized in that the mediation process as initially imagined and practiced was robust and multifaceted, designed and implemented to incorporate facilitative, evaluative and adjudicative dynamics and a robust risk analysis to aid disputants in finding mutually acceptable interest-based resolutions.
Back to the future
Although as originally practiced mediation incorporated the basic dynamics of the other multiple ADR processes, two relatively recent trends have tended to degrade or chip away at the efficacy of the original process. First, parties and counsel have become increasingly reluctant to have meaningful exchanges of positions and advocacy, and second, ultimate decision-makers no longer routinely and consistently attend mediation sessions in person. The result too often is that mediation ends up being more like a settlement conference or a “settlement week” session than the full-throated process contemplated by pioneers like Sander.
Therefore, instead of conversations and initiatives aimed at simply amending the ADR Rules to delete nonbinding arbitration, mini trials, summary jury trials and private judging, perhaps a better approach would be to collectively endeavor to reimagine the mediation process itself, to reinstitute a process designed to blend and meld various ADR concepts together, a process designed and conducted to foster principled negotiation, using standards as swords and shields to reveal or actually create settlement options available for each party. When those settlement options are developed, the process should shift to a well-conducted risk analysis, allowing the parties to measure their respective settlement options against the educated guesses/judgments as to the range of possible litigation outcomes. Simply amending the rules to eliminate the four nonmediation methods will not serve to reframe the mediation process.
Perhaps the circumstances are ripe for an “Indiana Pound Conference” — an opportunity to reimagine the mediation process and endeavor to ensure that, although it may be the only “alternative” door in the courthouse, it is robust and dynamic enough to achieve the original goals and objectives.•
John R. Van Winkle, of Van Winkle Baten Dispute Resolution, was a participant in the founding and was the second chair of the American Bar Association’s Section of Dispute Resolution. Opinions expressed are those of the author.