ADR scholar and law professor Michael Moffitt has rightly lamented the lack of meaningful guidance that professional rules of conduct for mediators provide the practitioner. This is especially so when more than one ethical duty is at stake, since codes of conduct provide no instruction on how best to balance one ethical duty against another.

A case from Pennsylvania demonstrates the challenges real-life issues raise. The York Daily Record reports on the controversy generated by the selection of a neutral to mediate a land seizure dispute between county commissioners and land owners. The mediator had served as re-election campaign manager for the president commissioner, who had voted in favor of the land owners. All parties were aware of the mediator’s ties, yet selected him because of his reputation for honesty as the best person to help them settle their differences. Meanwhile, some members of the public are not pleased by the decision.

It’s a real-life case that pits two ethical duties against each other: party self-determination on the one hand, and on the other, the duty to identify, disclose, and avoid conflicts of interest.

If it were you, what would you have done?

Over 30 years ago at the historic Pound Conference Harvard Law School professor Frank Sander delivered a paper in which he set forth his vision for a multi-door courthouse. In “The Pound Conference: Perspectives on Justice in the Future”, Sander reminded his audience of litigation’s limits with its:

“use of a third party with coercive power, the usually ‘win or lose’ nature of the decision, and the tendency of the decision to focus narrowly on the immediate matter in issue as distinguished from a concern with the underlying relationship between the parties.

and described the transformative effects of mediation, particularly:

its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.

Sander described a courthouse which offered many avenues for justice, uniquely suited to the dispute and the disputants. Sander’s paper helped launch a revolution in ADR and the American legal system.

While ADR today is institutionalized in courts throughout the U.S. and the world, not all would agree that the result has been better access to justice.

New Zealand mediator Geoff Sharp points his readers this morning to a post by Tulane University Law School Professor Alan Childress on the Legal Profession blog that argues for the “Value of Litigation: Against Settlement and Mediation“.

Professor Childress raises serious questions about a justice system that seems to place greater value on settling cases than on serving justice. He evokes New York subway vigilante Bernhard Goetz, who shot four youths in 1984. Several years earlier, Goetz was mugged and beaten by three youths in a Manhattan subway station. The court offered him the opportunity to mediate his dispute with one of his assailants, but Goetz declined.

Childress speculates that “[i]t is quite possible that Goetz was not snapped by subway crime or ‘kids today,’ but rather by a legal system that no longer wants to state right or wrong, or enforce norms, just dispute-resolve”. He reminds readers that “The Goetz example was used well to argue that law and courts have important social value, in many kinds of cases, that go way beyond dispute resolution, or even trendy alternative dispute resolution”, citing Albert W. Alschuler’s “Mediation with a Mugger: The Shortage of Adjudicative Services and the Need for a Two Tier Trial System in Civil Cases“, 99 Harv. L. Rev. 1808 (1986) (not available free online).

From “Mediation with Mugger”:

Goetz’s unwillingness to rely on a legal system that had invited mediation with his attacker — as well as the public’s initially favorable response to Goetz’s act of violence — suggests what can befall a society whose legal system fails or is perceived to fail.

Although Goetz’s act suggests a lesson about retribution and criminal justice, it also offers a broader lesson about procedure. Goetz’s despair and indignation may not have been entirely the product of his sense that his attacker had gone unpunished. More fundamentally, Goetz may have concluded that no one in the legal system had been willing to listen and to determine whether this mugger deserved punishment. In place of a prompt hearing at which a judge or jury would decide what had happened, this system had offered a conciliation proceeding designed to encourage the victim and the victimizer to resolve their differences and go on their way. The apparent procedural default of a bureaucratized and overburdened legal system may have fueled Goetz’s sense of injustice as much as his misperception of the substantive outcome.

(Emphasis added.)

It is true that overburdened courts often place undue emphasis on getting cases settled. And there is evidence to support the claim that all too often litigants, particularly those who are unrepresented and unfamiliar with the law, are coerced to mediate and settle cases. And few these days would credibly claim that mediation is appropriate for every dispute. Justice must always come first — and certainly well ahead of administrative or bureaucratic goals.

I agree with Childress that the courts serve a crucial role, and that the Goetz case does raise disturbing questions that the mediation field should not shy away from. But I wonder whether the Goetz case serves as the best example of a very real and vexing problem. It involved a criminal complaint, not a civil one. Should the failings of a criminal justice system serve as evidence to condemn the mediation and settlement of civil disputes?

In addition, the problem may not have arisen from the offer of mediation but instead with the failure of the court to communicate with a victim of crime. Goetz was sent home without ever learning of the fate of his attacker. According to “Mediation with a Mugger,”

[Goetz's assailant] was ultimately punished for his crime. He later received a three-to-nine year penitentiary sentence for additional robberies committed after his release. At last word, he was still in prison. The victim of the mugging, however, was never told what had happened to his attacker. He thought that the case had ended when he declined the offer of mediation.

This seems more of a bureaucratic failing — a failure to keep a victim informed. While there are many problems that can be laid at the doorstep of ADR, is this one we want to add?

No matter what, an important lesson emerges here. In opening multiple doors to resolution, courts must remember that one size does not fit all. A process that fails to fit is not a just process. Let the process be appropriate for the dispute and those most affected. We must always be asking ourselves, is our priority to settle cases and clear dockets? Or is it to serve justice?

Let’s make it the latter.

The International Mediation Institute (IMI) has convened an Independent Standards Commission to determine the standards, criteria and guidelines which together will make up the IMI global mediator competency certification system.

IMI has posted for international comment first drafts of the standards which can be reviewed and downloaded from the IMI web site. These drafts combine into a competency system that IMI hopes will work internationally. IMI highly values the input of professionals in the field and has established a comment period of 6 weeks to 2 months. The Commission will then convene to review the details in the light of comments received.

If you wish to provide the IMI with your input, please visit IMI online.