It is axiomatic that for mediation to meet its promise, for the process to provide the setting for mediators and lawyers to assist parties in finding mutually acceptable, interest-based solutions to complex disputes, those parties must be present.
It is submitted that the current reluctance of parties to attend mediation sessions in person has had and will continue to have significant and long-lasting negative impacts on the efficacy of the mediation process.
Mediation is a process, starting before and extending beyond the traditional meeting or “session.”
There was universal consensus when mediation was introduced in the early 1990s that mediations should be “confidential.” The ADR rules adopted in Indiana and most other states, however, failed to set forth clear standards and guidelines for courts and mediation participants faced with issues of confidentiality of mediation communications.
The recent trend toward only “meet and greet” joint sessions in mediation presents a serious challenge to lawyers in discharging one of their primary mediation functions: to advocate on behalf of their clients to get the best settlement option on the table.
Although mediation has been an integral part of the civil justice system for more than 30 years, there was not at its inception, nor is there today, a commonly accepted definition or agreement as to what constitutes the “process” of mediation.
In his article, “The Disappearance of Civil Trial in the United States,” Yale Law School professor John H. Langbein explored the factors leading to civil trials having all but “vanished.” He concluded that the largest single cause of the decline in the number of jury trials was the robust and extensive fact discovery promoted, if not mandated, by the adoption of the Federal Rules of Civil Procedure.
A recently published book chronicles the decades-long work of Hans Rosling, a social scientist and international professor of health. The book, “Factfulness,” published in the spring of 2018, reveals how human instincts and intuition lead the majority of people to see the world incorrectly.
In the 25 years since Ross Stoddard’s first program on mediation, he has conducted over 4,500 additional mediations. This highlights the growth of the mediation process in Indiana and in all other states.
Here is a quick look back at some interesting observations about mediation from journals and law review articles in 2017.
As the mediation process has evolved, one of the most significant changes is the trend in many jurisdictions, and among many lawyers and mediators, to dispense with the initial joint session. Perhaps because most of today’s litigators did not have experience with the pre-mediation settlement process, some of the fundamental factors and dynamics that make the joint session important in the settlement process are not evident.
The phenomenon known as the “vanishing trial” has been a topic of serious discussion, and in some quarters, serious concern, since statistics showing a marked decline in the number of criminal and civil trials were first reported in 2004.
The tendency for decision-makers to respond first with an intuitive (and often wrong) response has significant implications for both mediators and advocates.
The preamble to the mediation rule could have easily provided, as do the rules of golf, that the mediation rules are guided by the historical principles of the legal profession and the importance that mediation be conducted with integrity and in accordance with these principles.
Although mediation became the main thrust of the ADR Rules, mediation as now known was not the central feature of the rules originally proposed.
The recent Indiana Court of Appeals decision Jonas v. State Farm Life Ins. Co., ____N.E. 3d ______, 2016 WL 1248589 (Ind. Ct. App. 2016) highlights several issues concerning mediation and settlement in both state and federal courts.
Comments following the DirecTVdecision have been consistent: Unless Congress acts or the makeup of the court fundamentally changes, mandatory arbitration of consumer disputes and the corresponding limitations of some remedies (such as class actions) is here to stay.
A recent Indiana Court of Appeals opinion reaffirmed prior Indiana cases holding that settlement agreements, whether reached with or without mediation, are governed by the general principle of contract law and generally not required to be in writing.
The legal malpractice case of Cassel v. Superior Court of Los Angeles County, 244 P. 3d 1080 (2011), continues to ricochet through the California mediation community and court system, and the issue it raised is now headed to the Legislature.