Twenty-five years ago, bringing a case to mediation was novel and the corps of trained mediators was relatively small. Now, the escalating cost of trying cases, coupled with the uncertainty of the result, has made mediation common, perhaps the norm, in civil litigation. What the role of trial judges should be in pressing the mediation alternative continues to be a subject of discussion.
The Massachusetts Trial Court recognizes seven categories: arbitration, case evaluation, conciliation, mediation, mini trial, summary jury trial and dispute intervention. The category to which lawyers and their clients have made the most resort is mediation. That is because it is a process in which the parties control the result. The mediator may encourage or even cajole the parties to agree to a resolution that is mutually unsatisfactory — but acceptable. The parties participate in shaping the terms of settlement. They voluntarily agree to the terms of settlement, or they don’t.
In some states, trial judges may order litigants to engage in mediation. That is not the practice in Massachusetts. Massachusetts judges may urge, perhaps even strongly urge, parties to go to mediation, but they may not compel it. That is a wise decision, not least because a compelled mediation deprives the mediator of the oppor- tunity to gaze quizzically at an obdurate party and to ask: “What did you come to mediate?”
What a trial judge may do is to explain to the parties that the date of the trial is a long way off, that discovery — particularly depositions — gobbles up time and exact an emotional and financial toll; that on the basis of the pleadings and preliminary motions the case is susceptible of rational argument that the earth is flat or round; that mediation with the help of a neutral offers means to resolve the dispute in a manner the parties can live with and get on with their lives.
If a trial judge actually attempts to mediate a case and the parties do not settle, that judge should not continue with the case. The process of mediation gets deeply into the positions, grievances, and views of the facts of the contending parties, as well as the evidence they expect to proffer. Inevitably the judge-mediator would form an opinion about the merits of the case and would be disqualified from sitting on the trial of it. That would be a waste of judicial talent and time.
The trial courts have already assembled panels of qualified mediators. Judges can urge contending parties jointly to select a mediator from such a panel and, if need be, assist in the selection process.
The District Court Department already has at its disposal such considerable assets as the Community Dispute Settlement Center, which fields a cadre of lawyers and other volunteers trained to handle disputes brought to that court. The Land Court has developed a list of mediators (including several at TMG) with experience in real property and land use law and has enjoyed success in urging the use of mediation to settle cases brought before
it. Judges in the Superior Court have steered to mediation high stakes cases that are better resolved by guided negotiation than the winner-take-all alternative.
I have, so far, left arbitration out of the discussion. Arbitration requires an agreement of the parties to submit their dispute to arbitration. Unlike mediation, the neutral (or a panel) decides the case. And the parties are bound by the decision. Parties generally choose arbitration when speed of decision, the desirability of having a finder of fact schooled in the subject matter, and certainty of scheduling are significant factors.
Encouragement by the courts of alternative dispute resolution — particularly mediation — does not require ramping up internal machinery within the trial courts. Their existing budgetary requirements already exceed appropriations. The pragmatic “no load” means by which the trial courts may deal with cases for which mediation holds promise of resolution is to make use of the sizable stable of court-approved mediators that has developed over the last two decades. Let contending parties choose from those lists. Those lists will not be static, but will reflect new entrants into, as well as departures from, the field.