Mediation

Sections within this essay:

Background

Mediation refers to one of several methods used to resolve legal disputes other than through formal court trial. Mediation and arbitration constitute methods of "alternative dispute resolution" (ADR). Arbitration is used as a substitute for trial, but mediation merely assists the parties in reaching their own resolution of a disputed matter. Instead of a judge or jury rendering a judgment or verdict, or an arbitrator rendering a binding decision, a "mediator" merely facilitates open discussion and tries to assist the parties in resolving their differences on their own. Mediation thus avoids the "win-lose" set-up of a trial or arbitration.

Those who go through formal mediation tend to achieve settlement through their own spirit of mutual compromise. For that reason, mediation may be particularly helpful or appropriate in situations where parties have an ongoing relationship (neighbors, business associates, divorcing parents of minor children, etc.) and do not want that relationship destroyed by the adversarial process of trial. In addition to being less adversarial than trial or arbitration, mediation tends to be less expensive, faster, and nonbinding.

Mediation also may be used as a pre-trial initiative to provide a way for litigating parties to gauge the relative strengths and weaknesses of their claims and defenses before they get to the point of trial. This does not mean that mediation is used as a practice trial; rather, it represents a joint effort in good faith to resolve the matter before it gets to trial. In this form of mediation, after parties consider all sides to the dispute, a recommendation for settlement is given to the parties for their consideration. If the parties are unwilling to compromise their respective positions, and no settlement of the dispute results, at least the mediation experience will have given them a better understanding of how the dispute may or may not play out in court.

Voluntary versus Mandatory Mediation

Mediation of a dispute may occur as a result of voluntary private agreement, community program, or court order (which includes statutory mediation of some matters prior to trial). However, the term "mandatory mediation" may be misleading. It merely means that the parties are "forced to the table" to try to resolve their dispute prior to trial. It does not mean that they are required to settle their dispute; it merely requires that they attempt to do so in good faith. The decision to accept the outcome of the mediation and settle the matter remains voluntary. If the attempt at mediation fails to resolve the dispute, the parties may continue to litigate the matter.

A voluntary agreement to mediate a dispute may pre-exist the dispute, as in a private contract provision in which the parties agree to mediate any dispute that may arise in the future. Alternatively, a decision to mediate may come about after a dispute has already occurred and the parties are merely considering a way to resolve the matter without going to court.

Statutory mandatory mediation usually governs disputes concerning certain subject matters, such as labor relations, family matters (e.g., custody disputes), or consumer matters. Many states also have mandatory mediation provisions for civil disputes in which the dollar amount in controversy falls within a certain range. In those circumstances, mediation becomes an integral part of "pre-trial procedure," promoting the resolution of the dispute at a stage before the cost of litigation has begun to accrue.

The Mediation Process

Unlike arbitration, mediation is not similar to a trial. In voluntary mediation, there is no "decision," judgment, or verdict rendered. Rather, the neutral mediator acts as a go-between and does not take sides or advocate the cause or defense of any party. The setting is more often informal than not, and the parties may or may not be represented by attorneys (usually, court-ordered mediations are handled by the attorneys representing the parties). Often, the mediation hearing takes place in a conference room at a local hotel, court building, or state bar association.

The mediation hearing itself differs substantially from a trial, in that there is generally no formal presentation of evidence, and generally no witness testimony. Rather, each party summarizes its position in written papers filed with the mediator(s) prior to the mediation. In the written summary, each party describes the evidence it intends to produce at trial, if mediation is unsuccessful. The mediation papers may include photographs, affidavits from witnesses who will appear at trial, formal opinions or reports from experts, etc. There is a summarized statement of the issues and the respective positions of the parties, as well as factual/legal arguments identifying the strengths and weaknesses of the opposing position(s). The mediator(s) will review the premediation documents in order to become familiar with the issues and arguments, and thus be able to facilitate settlement. It is important that mediations are kept confidential, either by express agreement or by law, so as not to affect trial of the matter if mediation is unsuccessful.

Most often, there is a single, neutral mediator who facilitates and encourages open discussion and negotiation between the parties. However, in court ordered mediation, a panel of mediators may be selected. In many states that utilize mediation panels, the preferred number of mediators is three, one of whom is neutral in role and the other two serve as advocates for the causes of the opposing parties. In such cases, the mediators, after listening to both or all sides of the dispute, render a mediation recommendation (which sometimes is referred to as a mediation "award" or a mediation "decision," but in fact is not binding). The parties will have a set number of days to accept or reject the recommendation of the mediation panel.

In many states that have court-ordered mediation, there are consequences for rejecting mediation recommendations, and/or for failure to negotiate in good faith. For example, if a party rejects a mediator's recommended "award" of a certain dollar amount to settle the case, and instead goes on to trial, that party must succeed at trial and/or improve his/her position with a substantially better verdict than that recommended in mediation. In other words, the rejection of a mediation settlement offer must be premised on a good faith belief that the party has a reasonable chance of substantially improving its position at trial. If the party fails to do better at trial, a monetary penalty for rejecting the recommended mediation amount may be imposed. The justification for this rule is that by rejecting mediation, the rejecting party has caused the other party to sustain the cost of trial even though the rejecting party has not ultimately obtained a better result at trial. It follows that the rejecting party should bear the cost of this.

Deciding to Mediate a Dispute

For individuals who have decided to attempt resolution of their disputes through private mediation, the following may prove helpful.

Finding an Appropriate Forum and Mediator(s)

The local district court is a good starting source for mediation referral. Some state and local (attorney) bar associations also offer mediation programs. The non-profit National Association for Community Mediation is comprised of member community organizations across the nation that provide local mediators and forums for the resolution of local disputes. Often, the mediators may belong to such entities as the Better Business Bureau or local chambers of commerce, etc. and are quite familiar with the issues presented for resolution.

If the dispute involves more national interests or parties, individuals should consult one of the more established mediation providers, such as the American Arbitration Association (AAA) (which also handles mediations and supplies mediators). Most of these providers will be able to supply individuals with a list of mediators, a set of rules for the mediation, and a date and place for the mediation hearing.

If the forum individuals have chosen does not provide a mediator, but rather requests the parties to select the mediator(s), they should consider, among other factors:

• The appropriate experience
• The appropriate training
• The appropriate site (neutral)
• The fee schedule
• The "neutrality" (absence of bias or conflict of interest on the part of the mediator).

If the parties cannot agree on a mediator, the general procedure is to alternately strike names from a list (either provided by an outside source or created by the parties) until only a single name remains. Other alternatives (for panel mediation) include each party choosing any person at all (whether or not on a list) and then both parties choosing a neutral third mediator from the formal list.

Checklist

Once the mediation date, time, place, and mediator(s) have been decided upon, as well as an agreed procedure and/or rules, the following should assist individuals in completing the process:

• People should double check to make sure that confidentiality provisions have been included in their mediation agreement.
• They should make sure that, prior to the mediation, the subject of allocating the costs of mediation has been resolved.
• If the type of mediation allows the appearance of witnesses, individuals should double check to make sure everyone knows when and where to be.
• They should ensure that the person who has authority to settle the matter will be present at the mediation hearing (if different from the actual parties, such as a representative from an insurance company).
• They should make sure that their mediation summary contains a concise statement of issues and positions.
• Try to identify both weaknesses and strengths of opposing positions. They should build on one; diminish the other.
• They should know in advance the least favorable offer they are willing to accept, and be prepared to consider even less than that if surprise testimony or disclosure of previously unknown facts alters their present position.

Uniform Mediation Act

The Uniform Mediation Act (UMA), drafted and approved for adoption in August 2001 by the National Conference of Commissioners on Uniform State Laws, was endorsed by the American Bar Association in early 2002. However, it will take several years for introduction and adoption of the UMA by each state's legislature because legal rules affecting mediation (such as those regarding confidentiality or legal privilege) are spread out in more than 2,500 existing state statutes. Notwithstanding, in a growing global economy that enjoys increased interstate commerce through Internet business, uniformity and standardization of procedure may be a desirable objective.

Federal Mediation

The Alternative Dispute Resolution Act of 1998 (ADRA) (28 USC 651 et seq.) mandates that courts establish and authorize the use of ADR, including mediation and arbitration, in all civil actions. Courts maintain their individual discretion to decide at what stage in the litigation process a court offers mediation or other ADR to the parties. Local rules establish ADR procedure in the federal courts.

In the area of statutory ADR, the Federal Mediation and Conciliation Service was created by Congress in 1947 as an independent agency poised to assist and promote sound labor-management relations. It offers ADR services in a variety of formats, including dispute mediation and preventive (issue) mediation.

The U.S. Equal Employment Opportunity Commission's (EEOC ) mediation program began as a pilot experiment in 1991 in four field offices. By 1999, the EEOC's proposed budget included a $13 million allocation for the expansion of its mediation program. EEOC continues to develop and train internal mediators employed by EEOC s well as external mediators hired on a contract basis, to promote mediation as a possible resolution for some EEOC claims.

The federal government also encourages mediation and arbitration within its own ranks. Federal agencies are free to set up their own procedural ADR programs for the handling of both internal and external disputes. The Administrative Dispute Resolution Act of 1996 provides a mediation forum for handling disputes within agencies, or between citizens and agencies (claims against the government).

State Mediation Provisions

The following state laws provide for ADR (mediation/arbitration) for certain types of disputes:

ALABAMA: Alabama Code, Ch. 25-7-4 applies to labor disputes.

ALASKA: Alaska Statutes 42.40.840 and 23.40.190 address labor disputes. Family disputes are governed by 25.20.080 and 25.24.080. Disputes involving automobile warranties are governed by 45.45.355.

ARIZONA: Statutory provisions for arbitration/mediation of family disputes is covered under 25-381.01 to 25-381.24. Automobile warranties are covered under 44-1265.

ARKANSAS: Arkansas Statutes 11-2-201 to 11-2-206 governs labor disputes.

CALIFORNIA: California's Code contains extensive provisions for the arbitration and/or mediation of many types of disputes. Labor disputes are addressed under Sections 65, 66, and 3518. Family disputes are covered in Sections 5180 to 5183. Education matters are covered by 48260.6, 48263, 48263.5 (truancy), and 56503 (special education). There is a special provision for the arbitration of cable TV franchise disputes under 53066.1(n)(1). Environmental regulatory disputes, including issues involving pesticides, are covered under 13127(c)(1). Water rights disputes are handled under 1219. Community disputes of a business or professional nature are covered under 465 to 471.5.

COLORADO: Colorado's statutes provide ADR for labor disputes under 8-3-113. Family matters are covered by 14-10129.5. Agricultural debts are governed by 6-9-101 to 6-9-106. A special statutory provision exists for ADR of disputes involving mobile homes under 38-12-216. Dispute resolution in general is covered by 13-22-301 to 13-22-310.

CONNECTICUT: Labor disputes are covered under Connecticut Statutes 31-91 to 31-100, 5-276 and 5-276a. Family disputes are resolved under 46b-59a. Public Act 87-316 Section 8 (1987) is covered under 42-182.

DELAWARE: Delaware's Code covers labor disputes under Title 14 Section 4002 and 4014, Title 19 Section 110 and 113, and Title 19 Section 1614. Automobile warranties are covered under Title 6 Section 5007.

FLORIDA: Florida Statutes Annotated 448.06 and 681.110(4)9d) cover labor disputes. Family disputes are addressed under 44.101, 61.183, 39.42, 39.427 to 39.429, 39.436, 39.44, and 39.442. Automobile warranty disputes are provided for under 681.108 and 681.111 Mobile home disputes fall under 723.037 and 723.038. The state maintains "citizen dispute settlement centers" for ADR assistance under 44.201.

GEORGIA: Labor disputes are covered under Georgia Code 34-2-6(5), 25-5-1 to 25-5-14, 45-19-32, and 45-19-36. Public employee grievances and "unlawful practices" labor arbitrations are mandated under 45-19-36.

HAWAII: Hawaii Revised Statutes 371-10, 98-11(b)(1)(d), 89-12(a) and (b), 380-8, and 377-3 cover ADR for labor disputes. Automobile warranty disputes are covered under 490-2 and 313-1. Medical conciliation is addressed by 671-11 to 671-20. There is a special statutory provision for ADR of geothermal resources disputes under 205-5.1. International disputes are covered by 1988 Haw. Sess. Laws, Ch. 186, Sections 1-9.

IDAHO: Idaho Code Section 44-106 governs labor disputes.

ILLINOIS: Labor disputes are covered by Illinois Compiled Statutes, Ch. 48, paragraphs 1612, v1706, 1712, 1713(b); and Ch. 10, paragraph 26. Family disputes are covered by Ch. 40, paragraph 602.1 and 607.1. Automobile warranty disputes are covered by Ch.121.5, paragraph 1204(4). Disputes involving public utilities fall under Ch. 11, paragraph 702.12a. Illinois operates several nonprofit community dispute resolution centers under the auspices of Ch. 37, paragraph 851.1 to 856.

INDIANA: Labor disputes are covered under Indiana Code 5-14-1.5-6.5(2), 22-1-1-8(d), 22-6-1-7, 20-7.5-1-9 to 20-7.5-1-13. Family disputes are covered under 31-1-24-1 to 31-1-24-9, 31-1-23-5 to 31-1-23-9. Automobile warranties are handled under 24-5-13-19. Civil Rights disputes are covered under 22-9-1-6. Consumer protection disputes are covered under 4-6-9-4(a)(4). There is a special Code provision for water rights disputes under 13-2-1-6(2).

IOWA: Labor disputes are covered under Iowa Code 20.19 to 20.20 and 679B to 679B.27. Family disputes are covered under 598.16 and 598.41(2). Agricultural debts are handled under 654a1 to 654a14. Civil Rights disputes are covered under 601A.15(3)(c). Informal dispute resolution in general is addressed under 679.1 to 679.14.

KANSAS: Labor disputes are covered under Kansas Statutes 44-817, 44-819(j), 44-820(c), 44-826, 44-828, 72-5413(h), 72-5427, 72-5429, 72-5430(b)(7), 72-5430(c)(7), 75-4322, 75-4323, 75-4332, and 75-4333. The ADR provisions for family disputes are covered under 23-601 to 23-607 and 23-701. Automobile warranties are handled under 50-645(e). Civil Rights disputes are covered under 44-1001 to 44-1005. There is a special ADR provision for barbershop business disputes under 65-1824(4).

KENTUCKY: Kentucky has extensive ADR provisions in its Kentucky Revised Statutes (KRS). Labor disputes are covered under KRS 337.425, 345.080, 336.010, 336.020, 336.140, and 336.151 to 336.156. Family disputes are covered under KRS 403.140(b) and 403.170. Automobile warranties are handled under KRS 367.860 to 367.880. Civil Rights disputes are covered under KRS 344.190 to 344.290 and 337.425. Education matters are covered under KRS 165A.350 and 360. Disputes involving the production and distribution of agricultural products are covered under KRS 260.020.030(e) and 260.020.040(l) There is a special provision for community agency funding at KRS 273.451.

LOUISIANA: Labor disputes are covered under Louisiana Statutes, Title 23, Section 6. Family disputes are covered under Title 9, Sections 351 to 356. Automobile warranties are handled under Title 23, Section 1944. Housing civil rights matters are addressed under Title 40, Section 597. Barbershop disputes are covered under Title 37, Section 381. There is a special provision for a Medical Review Panel at Title 40, Section 1299-47.

MAINE: Maine's statutes provide ADR for the following areas of dispute: Labor disputes are covered under Title 26, Section 1026, 965, 931 to 936, 979-D, 1281, 1282, and 1285. Family disputes are covered under Title 4, Section 18 (1 to 5), Title 19, Section 214 (1,4), Title 19, Section 518 (1,2, and 4), Title 19, Section 656,665, and Title 19, Section 752(4). Automobile warranties are handled under Title 10, Section 1165. There is a special ADR provision for professional negligence claims (malpractice ) under Title 24, Sections 2851 to 2859.) Disputes involving the production and distribution of agricultural products are covered under Title 13, Sections 1956 to 1959.

MARYLAND: Labor disputes are covered under Maryland Code Article 6, Section 408(d) and Article 89, Sections 3, 9, and 11. Maryland also has an employment agency dispute ADR provision under Article 56, Section 169.

MASSACHUSETTS:. Labor disputes are covered under Chapter 150, Sections 1 to 3 of the General Laws. There is an ADR provision for cable television disputes under Chapter 166A, Section 16. A Community Mediation provision is at Chapter 218, Section 43E.

MICHIGAN: MCR 2.403 (Michigan Court Rules) covers court-ordered mediations of civil actions involving money damages or division of property. Domestic relations mediation is governed by MCR 3.211. Mediation of health care matters is covered under Michigan statutes, MCL 600.4901 to 600.4923. ADR provisions for labor disputes are covered under MCL 432.1, 423.9 to 423.9c, 423.25, and 423.207. Disputes involving the production and distribution of agricultural products are covered under 290-714. A small claims conciliation statute is contained under MCL 730.147 to 730.155.

MINNESOTA: Labor disputes are covered under Minnesota Statutes 179.01, 179.03, 179.04, 179.06, 179.14, 179.15, and 179.02 to 179.09. Family disputes are covered under 518.167 and 518.619. Automobile warranties are handled under 325F.665. Civil Rights disputes are covered under 63.01, and 63.04 to 63.06. Conciliation Courts are provided for under 487.30. Civil Mediation is outlined under 572.31 to 572.40. Civil litigation ADR is covered separately under 484.74. There is also a statutory ADR provision for community dispute resolution programs under 494.01 to 494.04. A special provision for debtorcreditor mediation is found under 572.41, and worker's compensation disputes under 176.351(2a). Disputes involving the production and distribution of agricultural products are covered under 17.692, 17.695, 17.697 to 17.701. Environmental issues are covered under 40.22, 40.23(3), 40.242, 40.244, 221.035F, 221.036(9), 116.072(1), and 116.072(6) to 116.072(8). Environmental waste management issues are covered separately under 115A.29(2)(a) and 115A.38(2).

MISSISSIPPI: Automobile warranties disputes are handled under Code provisions, 63-17-159 and 63-17-163. Agricultural debt is addressed under 69-2-43 to 69-43-51.

MISSOURI: Labor disputes are covered under Statutes 290.400, 290.420, 290.430, and 295.030 to 290.190, as is 105.525. Civil Rights disputes are covered under 213.010(1), 213.020, and 213.075.

MONTANA: Labor disputes are covered under Montana Code 39-31-307. Family disputes are covered under 26-1-81 and 40-3-111 to 40-3-127. Agricultural debt ADR is handled under 80-13-191 and 80-13-201 to 80-13-214. Civil Rights disputes are covered under 49-2-501(1), 49-2-504 to 49-2-506, and 49-2-601. Worker's compensation disputes are covered under 39-71-2401 to 39-71-2411. There is a special Code provision for special education matters under 20-7-462(4). Medical malpractice panels are covered under 27-6-101 to 27-6-704. Disputes involving the production and distribution of agricultural products are covered under is handled under 80-1-101 and 80-11-103(9).

NEBRASKA: Family disputes are covered under 42-801 to 42-823, and 42-360. Agricultural debt is covered under 2-4801 to 2-4816. Civil rights disputes are covered under 20-113.01, 20-114(1)(2).

NEVADA: Nevada has copious provisions for ADR in its statutes. Labor disputes are covered under 288.190, 288.200, 288.205, 288.215, 288.220, 288.270, 614.010, and 614.020. Automobile warranties are handled under 598.761. Civil Rights disputes are covered under 233.020 to 233.210, and 244.161. Consumer credit and civil rights disputes are covered under 598B.150. Educational dispute ADR is found under 394.11, and mobile home disputes are handled under 118B.024, 118B.025, and 118B.260.

NEW HAMPSHIRE: Labor disputes are covered New Hampshire Statutes 273-A:1, 273-A:12, 273.215, 273.220, 273.270, 614.010 and 614.020. Automobile warranties are handled under 357.0:4.

NEW JERSEY: Labor disputes are covered under 34-13A-4 to 34-13A-16 and 34-13A-15.Civil rights disputes are covered under 52:27E-40, 52:27E-41. A general ADR provision is found at 2A:23A-1 to 2A:23A-19. Disputes involving the developmentally disabled are covered under 52:27E-40 and 41. Home warranties are covered under 46:3 B-9. Radioactive waste issues are handled under 32:31-5.

NEW MEXICO: Family disputes are covered under 40-12-1 to 40-12-6, and 40-4-9.1(B) and (J)(5). Automobile warranties are handled under 57-16A-6. Small claims are handled under 34-8A-10.

NEW YORK: Labor disputes are covered under Sections 205 and 209 for civil service, and Sections 750 to 760 for labor. Family disputes are covered under Sections 911-926. Automobile warranties are handled under Section 198-a (general business) Tax matters fall under Section 170(3a). Community Dispute Resolution Programs are governed by Sections 849-a to 849-g (judicial law).

NORTH CAROLINA: Labor disputes are covered under Statutes 95-32 to 95-36. Automobile warranties are handled under 20-351.7. Civil Rights disputes are covered under 143-422.3 (unemployment) or 41A-6(6), 41A-7(a), 41A-8 (housing).

NORTH DAKOTA: Family disputes are covered under Code Sections 14-09.1-01 to 14-09.1-08, and 27-05.1-01 to 27-05.1-18. Automobile warranties are handled under 51-07-18(3). A provision for ADR of agricultural debt can be found at 6.09.10-01 to 10-09. Debtor-creditor disputes are covered under 11-26-01 to 11-26-08.

OHIO: Lengthy provisions under Ohio's Code for labor disputes are covered under 4117.02(A), (E), (H)(7), (N),4117.14(A) and (C). Family disputes are covered under 3117.01 to 08. Automobile warranties are handled under 1345.75 and 77. Civil rights disputes (housing matters) are covered under 1901.331.

OKLAHOMA: Automobile warranties are handled under Statute Title 15, Section 901(f). Civil Rights dis-putes are covered under Title 25, Sections 1505, 1704, and 1705. 22-9-1-6. General dispute resolution programs are covered under Title 12, Sections 1801 to 1813.

OREGON: Oregon's statutes covering labor disputes are found at 662.405 to 455, 662.705(4), 662.715, 662.785, and 243.650 et seq. Family disputes are covered under 107.510 to 107.615, 107.755 to 107.795, and 107.179(4).

PENNSYLVANIA: Pennsylvania Statutes, Title 43, Section 211.31 to 39, and Title 43, Section 213.13 cover general labor disputes, as well as Title 43, Section 1101..801,.802, and Title 43, Section 217.3. Automobile warranties are handled under Title 73, Section 1959. Civil Rights disputes are covered under Title 43, Section 957(i) (unemployment) or Title 43, Section 959(a) to (c) (employment. Eminent domain issues are covered under Title 52, Section 1406.15.

RHODE ISLAND: Labor disputes are covered under General Law 28-10-1, 28-9.4-10, 28-9.4-17, and 28-7-10. ADR for consumer issues is found at 42-42-5 to 42-42-7.

SOUTH CAROLINA: Codified laws in South Carolina include ADR provisions for labor disputes under 41-10-70 (wage mediation) and 41-17-10. Civil rights disputes are covered under 1-13-70 and 1-13-90 (employment). Consumer disputes are covered under 37-6-117. Employment grievances are covered under 8-17-360 and 8-17-370.

SOUTH DAKOTA: South Dakota has ADR for labor disputes under 60-10-1 to 60-10-3.

TENNESSEE: Bank patrons may resolve their disputes under Tennessee's Code 45-1-301 to 45-1-309.

TEXAS: Labor disputes are covered under Article 5154c-1, Section 9. ADR procedures in general are covered under Article 4590f-1, title 7, 154.001 to 154.073 Section 3.07(d).

UTAH: Family disputes are covered under 30-3-16.2 to 30-3-17.1, 30-3-4.1, and 30-3-4.3. Automobile warranties are handled under 30-20-7. Medical malpractice resolution is provided for under 78-14-1, 78-14-2, and 78-14-12 to 16.

VERMONT: Labor disputes are covered under Vermont Code Title 21, 924 and 925, Title 3, 8.25, and Title 21, 521 to 554. Special education matters are covered by Title 16, Section 2941, 2959.

VIRGINIA: Labor disputes are covered under Virginia's Code, 40.1-70 to 40.1-75. Family disputes are covered under 16.1-69.35 and 16.1-289.1. Automobile warranties are handled under 59.1-207.15. Civil mediation programs are found under 16.1-69.35(d) There is a special Code provision for local government dispute mediation at 15.1-945.1 et seq.

WASHINGTON: Labor disputes are covered under 49.08.010, 41.56.430, 41.56.440, 41.56.450, and 41.59.120. Family disputes are covered under 26.09.015. Automobile warranties are handled under 19.118.150. Civil Rights disputes are covered under 49.60.130. Dispute resolution centers are found at 7.75.010 to 7.75.100

WEST VIRGINIA: West Virginia has an ADR provision for labor disputes at Code Section 21-1A-1. There is also an ADR provision for automobile warranty disputes at 46A-6A-8 and 46A-6A-9.

WISCONSIN: Wisconsin Statutes cover ADR for labor disputes under 101.24, 111.11, 111.39, 111.53-56, 111.70, and 111.77. Family disputes are covered under 753.016 (conciliation), 767.081-82, 767.001(3) and (4), 767.11, and 767.327(1) and (2). Automobile warranties are handled under 218.015(3) to (7). Civil Rights disputes are covered under 118.20 (employment), 230.85 (employment), and 1419 (governor and mediation).

WYOMING: Automobile warranties are handled under Statute 40-17-101(a) and (f). Agricultural debt is covered under 11-41-101 to 110. Environmental issues are handled under 35-11-701(a) to (c).

Additional Resources

"A Brief Overview of the American Arbitration Association." Available at http://gov.news/press/2001pres/01fsprivacy.html.

Administrative Dispute Resolution Act of 1996. U.S. Congress, 1995. Available at http://gov.news/press/2001pres/01fsprivacy.html.

"Arbitration and Mediation." Consumer Law Center. Available at http://gov.news/press/2001pres/01fsprivacy.html

Civil Justice Reform Act of 1990. 28 U.S.C. Section 471 et seq.

"History of EEOC Mediation Program." The U.S. Equal Employment Opportunity Commission. Available at http://www.eeoc.gov/mediate/history.html.

How and When to Be Your Own Lawyer. Robert W. Schachner., Robert W., Avery Publishing Group, Inc.., 1995.

Law for Dummies. John Ventura., John, IDG Books World-wide, Inc., 1996.

U.S. Code, Title 29, Labor, Subtitle B, Chapter XII, Federal Mediation and Conciliation Service. Available at http://lula.law.cornell.edu/cfr/.

Uniform Mediation Act. National Conference of Commissioners on Uniform State Laws. 2000. Available at http://gov.news/press/2001pres/01fsprivacy.html.

Organizations

American Arbitration Association (AAA)

335 Madison Avenue, Tenth Floor
New York, NY 10017-4605 USA
Phone: (212) 716-5800
Fax: (212) 716-5905
URL: http://www.adr.org

American Bar Association (ADR Section)

740 15th Street NW
Washington, DC 20005 USA
Phone: (202) 992-1000

Global Arbitration Mediation Association (GAMA)

3660 Druids Drive
Conyers, GA 30013 USA
Phone: (770) 235-7818
URL: http://www.gama.com

National Association for Community Mediation

1527 New Hampshire Avenue NW
Washington, DC 20036-1206 USA
Phone: (202) 667-9700
URL: http://www.nafcm.org

National Institute for Dispute Resolution

1726 M Street NW, # 500
Washington, DC 20036 USA
Phone: (202) 466-4764

MEDIATION

When a marriage is dissolving, the spouses must reach agreement on property division, spousal support, child custody, and parental visitation. With the advent of "no-fault" divorce laws, the process of reaching a settlement between the divorcing spouses has become increasingly private. The high costs associated with the more public and formal legal processes has led many divorcing spouses to seek a low-cost alternative: divorce mediation. Much has been written about the reasons for this trend toward the "privatization" of divorce, including the increase in no-fault divorce and the elimination of the "tender years" presumption, which used to influence judges to award child custody to the mother. When divorce is no longer contingent on proving fault, and when the courts have no strong guidelines for making custody determinations, there are few compelling reasons to rely on legal intervention to dissolve a marriage.

Another influence on the growth of private approaches to determining divorce agreements has been the research on the effects of divorce on children's development. Divorce often results in the loss of contact with the noncustodial parent, less effective parenting, and reduced financial resources. These negative consequences have been linked to more behavior and peer problems in children. Studies have shown that cooperation between the ex-spouses on parenting issues, despite their continued personal conflict, can mitigate the negative effects of the divorce on children's development.

For these reasons, divorce mediation has emerged in recent years as a more suitable alternative to court-ordered approaches. Mediation holds the promise of being cheaper, takes less time to reach settlement, and can effectively prevent many custody disputes from going to court. By allowing the exspouses to reach agreement on child custody privately, the amount of conflict between the parents might diminish, the settlement might be fairer for both parties, and contact between the child and each parent can be maintained. These improvements in the period immediately following the divorce should then attenuate any short-term negative effects on the children and improve their adjustment. This article examines the evidence for the benefits of mediation and its effects on parent and child adjustment.

How Mediation Works

Mediation is defined as any strategy or approach to resolving conflict that arrives at a settlement agreeable to the parties. In divorce mediation, the spouses meet with an impartial third party to reach an agreement regarding child custody and other issues. Two forms of divorce mediation are generally recognized. Child custody mediation is specific to the issues of each parent's right to custody and visitation of their children. Comprehensive divorce mediation deals with other issues such as property distribution and spousal support. Some mediation programs involve an average of two or three sessions, whereas others may use as many as ten sessions.

Unlike adversarial methods of reaching divorce settlements, such as litigation or out-of-court negotiation between the spouses' lawyers, mediation occurs with one professional, assumes the parties will cooperate to reach an agreement rather than compete to get the most for themselves, and allows the spouses to make their own decisions. Although some forms of mediation may address underlying interpersonal or individual problems, mediation is unlike marriage therapy because it does not aim for reconciliation. The goal of mediation is for the couple to reach a fair settlement that allows the marriage to be dissolved.

As of 1994, five states (California, Maine, New Mexico, Oregon, and Wisconsin) required mediation as a mandatory first step in resolving child custody disputes, while seven states (Alaska, Colorado, Connecticut, Illinois, Iowa, Kansas, and Louisiana) provided for mediation as part of the state family courts on a discretionary basis, depending on the nature of the divorce disputes. As of 1999, some states still did not have statutes regarding mediation but allowed individual jurisdictions within those states to enact local rules, whereas in other states (Michigan and New Hampshire) mediation was voluntary, that is, the courts mentioned its availability to the parties involved.

In addition to court-based mediation, there is now a growing use of mediators in private practice. While court-based mediators often are social workers or other mental health professionals, private mediators tend to be attorneys, many of whom have also served as divorce attorneys. As divorce mediation becomes a "growth industry" for attorneys, questions have arisen about the appropriate role for lawyers and the potential ethical dilemma of dual representation. Researchers have raised questions about the appropriateness of mediation in cases of domestic violence or abuse. Mediation also may not be appropriate when other severe power imbalances exist between the two parties, such as in cases of alleged child abuse or neglect, mental health problems, or borderline intellectual functioning.

How Mediation Affects the Settlement Process

There are important limitations to studying the effects of mediation. First, the vast majority of divorce cases end in out-of-court settlements, with only 10 percent of cases going to trial. Other than mediation, settlements are reached out of court by negotiations between the parties' lawyers. In some mediation cases, each party's lawyers review the settlement before the agreement is presented to the court, a process that still involves lawyers and the courts. Second, the prevalence of privately held mediations is difficult to measure, because no reporting is required and the divorce judgment often does not indicate whether the settlement was arranged by a private mediator. Thus, it is sometimes hard to compare mediated and litigated settlements, especially among those that are reached out of court. Finally, couples may "self-select" for mediation or litigation based on such factors as the degree of conflict and cooperation (more acrimonious disputes and less cooperative couples tend to bypass mediation) and socioeconomic factors such as employment, education, and income (parents with higher income, education, and employment status tend to select mediation, particularly private mediation).

Much of the research evaluating mediation has shown positive results, but there are some notable gaps. Mediation appears to improve the rate at which couples reach agreement. In a 2000 review of the literature, from 50 percent to 85 percent of mediated divorces reach agreement and most studies report agreement rates in the upper part of this range. Settlement rates are equally high for all forms of mediation and do not vary according to the amount of time the mediation required. Mediation also substantially reduces court caseloads by diverting some couples before they reach the court. Reports from Los Angeles County in the mid-1980s, shortly after California became the first state to mandate mediation, suggest that custody hearings may be reduced by as much as 75 percent. Evidence also supports the lower cost of mediation compared with litigation, and, because the settlement was reached cooperatively, mediation may reduce the number of couples who return to court, that is, the rate of relitigation. This is an important consideration in light of reports that as many as one-third of all litigated divorces involving child custody typically return to court within two years.

The evidence for the effects of mediation on relitigation rates is nevertheless mixed. One study that tracked couples for two years found that those who reached a divorce settlement through mediation were less than half as likely to return to court than those couples whose settlements were court-ordered. Also, mediated divorce settlements were reached in about half the time. In another two-year study, couples with mediated agreements were six times less likely to return to court than those whose disputes were settled in court. Although little research has followed couples beyond the two-year postsettlement period, one study tracked couples over a nine-year period but found no differences in relitigation between those who mediated and those who litigated the initial settlement. There was, however, a relatively high attrition rate of 48 percent, which is to be expected after nine years. There are other studies that have also reported no differences in relitigation rates.

Typically, after the initial settlement is reached in litigation, the custodial parent faces the possibility that the noncustodial parent will not comply with the court order, including both child support payments and custody arrangements. Because mediation is more cooperative, parents should show higher levels of compliance. Research supports this notion: In practically all studies, parents who used mediation reported fewer difficulties with compliance.

How Mediation Affects Parents and Children

The negative psychological effects of divorce on parents and children may be directly or indirectly a function of the adversarial approach, which often maintains and even fuels hostility between divorcing parents. Mediation should provide psychological benefits for both parents and children, such as decreasing bitterness and tension and increasing communication between the parents. The research findings are not completely clear, however. While some studies indicate that couples in mediation show greater cooperation and improved interpersonal relationships after the divorce settlement, some studies have found no consistent differences in psychological adjustment that could be attributed to the mediation itself. These inconsistent findings may be due to preexisting differences between the mediation and litigation groups. Other studies found that the couples who had mediation were more satisfied with the divorce settlement and reported doing much better up to one year following the settlement.

Mothers and fathers appear to differ in their satisfaction with mediated settlements. These differences, however, may be related to the type of custody presumption applicable in the states where the research was done and differences in custody outcomes between mediation and litigation. Generally, litigation is more likely to result in the award of sole custody to the mother. In states where the primary presumption of custody favors the mother in a sole custody arrangement, mothers tended to be more satisfied with their settlements than fathers. Mediation tends to produce more joint legal custody agreements, and in those states where the custody presumption favored sole mother custody, fathers who mediated were more satisfied than those who litigated. But in states where the custody presumption favored joint legal custody, both fathers and mothers who mediated were more satisfied than those who went to court.

Compared to litigation, mediated settlements also resulted in both parents maintaining greater involvement with their children. In one long-term study, nine years after the initial divorce settlement, couples who used mediation reported more contact with each other than those whose settlements were litigated. As well, both parents were more involved in their children's lives and reported more frequent communication with the other spouse about the child or children.

It is logical to presume that mediation will positively influence children's adjustment, by improving parental cooperation and communication and maintaining contact between the noncustodial parent and the children. Studies of the effects of divorce on children's adjustment strongly support the positive effects of increased parental cooperation and decreased conflict in the post-divorce period. For mediation, however, the research is surprisingly sparse. Studies have failed to show significant improvements for children as a result of the parents' mediation. This lack of empirical support parallels the mixed evidence on the benefits of mediation for the parents' adjustment.

The critical question is whether one should expect such enduring effects on children and parents. The benefits of mediation appear to occur primarily in the short term by improving compliance, reducing relitigation, and decreasing the time required for the couple to reach a settlement. While mediation has significant benefits over litigation, the research evidence is far from conclusive, particularly concerning the link with improved psychological adjustment of parents and their children. Mediation has an important place in helping families through the initial stress of divorce, but it should not be viewed as a solution for coping with the long-term issues that arise after the dissolution of a marriage.

See also:CHILD CUSTODY AND SUPPORT; DIVORCE

Bibliography

Beck, Connie J. A., and Bruce D. Sales. Family Mediation: Facts, Myths and Future Prospects. Washington, DC: American Psychological Association, 2001.

Dillon, Peter A., and Robert E. Emery. "Divorce Mediation and Resolution of Child Custody Disputes: Long-Term Effects." American Journal of Orthopsychiatry 66 (1996):131-140.

Emery, Robert E. Renegotiating Family Relationships: Divorce, Child Custody, and Mediation. New York: Guilford Press, 1994.

Emery, Robert E. Sage Developmental Clinical Psychology and Psychiatry Series, Vol. 14: Marriage, Divorce, and Children's Adjustment. Thousand Oaks, CA: Sage, 1999.

Emery, Robert E., and Melissa M. Wyer. "Divorce Mediation." American Psychologist 42 (1987):472-480.

Emery, Robert E., Sheila G. Matthews, and Melissa M. Wyer."Child Custody Mediation and Litigation: Further Evidence on the Differing Views of Mothers and Fathers." Journal of Consulting and Clinical Psychology 59 (1991):410-418.

Hahn, Robert A., and David M. Kleist. "Divorce Mediation: Research and Implications for Family and Couples Counseling." Family Journal: Counseling and Therapy for Couples and Families 8 (2000):165-171.

Johnston, Janet R., and Linda E. G. Campbell. Impasses of Divorce: The Dynamics and Resolution of Family Conflict. New York: Free Press, 1988.

Kelly, Joan B. "The Determination of Child Custody." Future of Children: Children and Divorce 4 (Spring 1994):121-142.

GaryResnick

MEDIATION

MEDIATION, an alternative means for the resolution of disputes in which the mediator, a neutral professional, meets with the parties to the dispute and aids them in reaching an agreed upon resolution. Unlike a judge, the mediator has no authority to render a decision in the dispute. In the mediation process, the parties are given the opportunity to express themselves, to voice their arguments, and to reach, by themselves, a solution that is appropriate for them.

Mediation is appropriate for the resolution of most types of disputes, be they commercial disputes, private disputes, disputes regarding the family, or even public disputes and international disputes between states.

Jewish legal literature contains many sources that refer to disputes. Many of these sources point to the increase in litigation and consider the use of the judicial process, terminating in a definitive judicial decision as the preferred method to resolve disputes.

Alongside this approach, there are many sources that refer approvingly to making peace between parties, whether this is achieved by a dayyan (rabbinical court judge) in the rabbinical court who works out a "compromise" between the parties (see *Compromise), or by means of mediation that takes place outside the court. It seems that it was not coincidental that the Israeli legislature, in Section 2 of the Foundations of Law Act, 5740 – 1980, provided that "peace" is one of the values according to which the court is obligated to act in the case of a lacuna, a unique provision in comparison to legal systems in other countries. Thus, where the court encounters a legal question which must be resolved, and it is not addressed in legislation or case law and cannot be resolved by way of analogy, the court is instructed to decide "in light of the principles of freedom, justice, equity and peace of the Jewish tradition."

An expression of the important role of "peace," alongside that of "law" as a means to dispute resolution, may be seen in the Book of Zechariah, 8:16, "…execute the judgment of truth and peace in your gates." The Mishnah in Avot elaborates upon this verse, stating: "The world exists on three foundations: On truth, on judgment, and on peace." The verse from the Book of Zechariah served as the basis for the teaching of the sages in the Mishnah, as follows: "What is the judgment that contains peace? Let it be said: it is compromise." The Maharsha – Rabbi Samuel Edels, a rabbinic sage in Poland in the 16^th century – commented as follows: "Compromise is arrived at with the agreement and willingness of both of the parties, which is not the case with judgment." (For further explication of this subject see the opinion of Justice Menachem Elon in ca 61/84 Biazi v. Levi, 42(1) pd 446.)

As opposed to modern legal systems that view the court as a central means for conflict resolution, the Torah commands each individual – and not just the legal institution – to try to bring about accord between opponents in a dispute. An expression of this is found in the Mishnah in tractate Pe'ah, that is recited daily in the morning prayers: "These are things that have no measure [that the reward for them is immeasurably great] …a person enjoys their interest in this world and the principle awaits him in the world to come: …and making peace between people and between a husband and his wife" (the last phrase, "between a husband and his wife," does not appear in all of the ancient manuscripts of the Mishnah, but is found in some of the versions of the prayer and is common in the Sephardi and the Eastern versions of the prayer).

In his classic commentary on the Mishnah, the author of Tiferet Yisrael, Rabbi Israel Lipschutz (Germany, 18^th century), discusses the special expression "bringing peace" rather than "making peace," and he comments as follows:

Bringing peace – even if the two parties do not desire it, one should go to the trouble of persuading them to come together and bring about peace between them. And this is the reason that the tanna did not say "to make peace" but rather "to bring peace," in other words, to bring counsel from afar in order to compel them by his soft words to bring peace between them.

In the Midrash, the figure of Aaron the Priest, about whom it was said in the Mishnah (Avot 1:12) that he "loved peace and pursued peace," serves as the archetype for the commandments of bringing about peace. The Talmud even contrasts between Moses, the head of the judges and Aaron's brother, and Aaron, who serves as a symbol for mediators seeking to resolve disputes outside of court: "Moses used to say: The law must be carried out to its fullest, but Aaron loved peace and pursued peace, and made peace between people." Rashi commented "Because he would hear the disputes between them before they came before him for a judgment, he would pursue them and impose peace between them." In other words, as is the case with modern day mediation proceedings, the "mediator," Aaron the Priest, met with the parties before the legal hearing and outside of the "court," in order to spare them the pain and suffering that accompany the legal proceedings.

The end product of mediation, unlike a legal proceeding, is not a legal decision in which one side prevails and the other side feels that he has lost, but rather the end of the conflict and its resolution in a "peaceful" manner, in which both sides feel that they are satisfied.

An interesting description of the mediation process is found in Avot de-Rabbi Nathan (12:3): "Two people had quarreled with one another. Aaron went and sat with one of them. He said to him: My son, look what your friend has done, his heart is distraught and he has torn his clothes (out of sorrow regarding the quarrel), and he is saying: Woe is to me, how will I raise up my head and look at my friend? I am embarrassed in his presence, because I am the one who wronged him. And he [Aaron] sits with him until he removes the jealousy from his heart. And Aaron then goes and sits with the other party and says to him: My son, see what your friend has done, his heart is distraught and he has torn his clothes and he is saying: Woe is to me, how will I raise up my head and look at my friend? I am embarrassed in his presence, because I am the one who wronged him. And he [Aaron] sits with him until he removes the jealousy from his heart. And when they met [the two opponents who carried on the dispute between them], they embraced and kissed one another."

According to the description in this Midrash, Aaron the Priest uses a technique similar to that used by contemporary mediators, of holding separate mediation meetings alongside the joint meetings, with the goal of aiding the parties to end the dispute. In this respect as well, the difference between the mediation process and a court proceeding, which has to be held in the presence of both of the parties, is readily apparent.

It is not unusual for a dispute between parties to be so serious that the two parties cannot communicate with each other. Due to the lack of trust between them, each one is suspicious of the other and holding separate meetings allows them to express themselves freely in front of the mediator and to talk about their feelings in a calm and non-threatening atmosphere, without worrying that what they say will be conveyed to the other party. In this manner, the mediator can assist each of the sides to identify his interests and needs, and to understand the interests of the other party. In the case described in Avot de-Rabbi Nathan, the mediator uses "neutral" language, while emphasizing points that are likely to lead to a resolution of the dispute. Aaron the Priest emphasizes the sorrow of the other party to create an opening to decrease the tension between the parties and to encourage discussion between them. Unlike a judge, the mediator does not express an opinion regarding the dispute before him. He abstains from "awarding grades" to the parties to the dispute, does not appraise their character, and does not judge their deeds. His role is purely one of assisting in carrying out the negotiations between them to resolve the dispute.

In Court Decisions in Israel

Israeli law accords a wide degree of expression to the desired place of reaching a compromise by the court, relying on the position of the Jewish Law sources regarding this matter (see, for example, ca 807/77 Sobol v. Goldman, 33(1) pd 789, per Justice Elon and hcj 2222/99 Gabai v. The Rabbinical Court of Appeals, 54(5) pd 401; see *Compromise). However, a distinction must be made between a compromise arrived at by a judge and a mediation proceeding handled by a neutral professional outside of the courtroom. Section 79c of the Courts Law [consolidated version], 5744 – 1984, refers to mediation, along with compromises that take place within the court, as appropriate proceedings for the resolution of disputes. Pursuant to that section, "the court may, with the agreement of the parties, transfer a matter in litigation to mediation." If the parties reach an agreement in the mediation, the court is authorized to give the agreement the force of a judgment. Detailed regulations have been enacted to govern the mediation process.

bibliography:

M. Elon, "Ha-Din, Ha-Emet, Ha-Shalom ve-ha-Pesharah: Al Sheloshah ve-Arba'ah Amudei ha-Mishpat ve-ha-Ḥevrah," in: Meḥkarei Mishpat, 14 (5758 – 1998), 269–342; Y. Bazak, "Yishuv Sikhsukhim be-Derekh shel Pesharah ba-Mishpat ha-Ivri," in: Sinai, 71 (5732 – 1972), 64; A. Hacohen, "Lo Yakhlu Dabru le-Shalom – Gishur, Pishur, ve-Yishuv Sikhsukhim," in: The Ministry of Justice, Daf Parashat ha-Shavu'a, 54 (5762 – 2002); E. Shochetman, Seder ha-Din (5748 – 1988), 208–16.

[Elisheva Hacohen (2^nd ed.)]

Mediation

Mediation is a facilitated negotiation in which a skilled, impartial third party seeks to improve relations between parties to resolve a conflict by improving communication, identifying interests, and exploring possibilities for a mutually agreeable resolution. The mediator has no power to impose any solution. Instead, the disputants remain responsible for negotiating a settlement. However, once signed, mediated agreements typically enter the regulatory process to become binding. The mediator's role is to assist the process in ways acceptable to the parties. Mediation most often is a voluntary process, but in some jurisdictions may be mandated by court order or statute. Many believe that mediation is more cost effective and produces better resolutions than settling a dispute out in court.

see also Arbitration; Consensus Building; Enforcement; Litigation; Public Policy Decision Making; Regulatory Negotiation.

internet resource

U.S. Institute for Environmental Conflict Resolution Web site. Available from http://www.ecr.gov.

Susan L. Senecah

MEDIATION

A settlement of a dispute or controversy by setting up an independent person between two contending parties in order to aid them in the settlement of their disagreement.

In international law, mediation is the friendly interference of one state in the controversies of nations. It is recognized as a proper action to promote peace among nations.

The individual who intervenes in order to help the other parties settle their dispute is called a mediator.

cross-references

Alternative Dispute Resolution.