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.