Elden Rosenthal was spot-on in his article Second Thoughts on Mediation, A Trial Lawyer’s View. Mediation is not appropriate or necessary for every case. Mandatory mediation contravenes the most fundamental principle of mediation: self-determination regarding what process to use to resolve the dispute. See, OREGON MEDIATION ASS’N. CORE STANDARDS OF MEDIATION PRACTICE (Rev. 2005).
The expectation of mediation discourages negotiations. Not long ago, another attorney initially refused to negotiate. He said, “I do not want to put a number out there before mediation.” I responded that I would not mediate the small case. As Mr. Rosenthal urged, attorneys should refuse mediation unless the parties are unable to negotiate their own resolution.
The expectation of mediation in which the parties remain separated can discourage good faith. As Mr. Rosenthal notes, when attorneys and parties never expect to talk with one another, it can lead to overly aggressive litigation ploys. When the parties never sit face-to-face, then neither needs to “keep a straight face” when they open with unrealistic “demands” and “offers.” The results are predictable. Litigation is more expensive than necessary, and mediations begin with impasse over who will step into the realistic range first.
Some courts have responded to slashed budgets and reduced personnel by requiring mediation as THE alternative to trial, and some lawyers prefer mediation because they lack confidence in their negotiation skills. Perhaps the Oregon State Bar should be more directive in what CLEs an attorney must take during the first 3, 6 and 9 years. Perhaps forcing attorneys to study negotiation would encourage them to negotiate and, thereby, resolve cases without trial or mediation.
Some courts that order mediation simply find an available trial judge to mediate. If the parties must pay for involuntary mediation, then, at the very least, the parties should be able to select their own mediator. Mediators vary in skill and dedication to their profession. Some trial judges are terrific mediators, but not everyone ranks in the top 10%.
I agree with Mr. Rosenthal’s biggest point: the pendulum has swung too far toward mediation as the primary alternative to trial. Members of the bar need to push back and negotiate first.