Stephanie West Allen, who publishes the blog Idealawg, sent me this article which attributes an increase in professional civility among lawyers to the use of mediation and arbitration to resolve disputes.

(Thanks, Stephanie, for the link.)

An interesting report on mediation appeared this week in the U.K. online journal Legal Week by attorney Tim Ashdown, a commercial litigator and partner with the British law firm DMH Stallard.

The article describes benefits mediation offers clients in commercial litigation, including early settlement, cost savings, more direct participation by clients in their own case, and greater flexibility in creating outcomes than litigation offers. The article also draws attention to factors which can limit mediation’s effectiveness.

However, that’s not the reason why you should read this report (despite the fact that we mediators always appreciate a thoughtful, well-written article highlighting the benefits mediation offers written by someone who understands the subject matter very well indeed, as Ashdown does).

What’s most striking about this article is its discussion of a current trend in British jurisprudence for judges to sanction litigants who “unreasonably refuse” to go to mediation to resolve their disputes, particularly when a judge has recommended mediation. Ashdown cites a number of examples of cases in which courts in Britain have approved cost sanctions against parties who have refused to mediate.

This imposition of sanctions in my view undermines two of mediation’s defining principles: voluntariness and self-determination. These principles are among the chief factors which account for mediation’s tremendous appeal for disputants. The process works precisely because of this absence of coercion—parties are more willing to participate in a process which is theirs alone and in which they themselves define the outcome. Autonomy matters.

It is true that courts everywhere—in Britain and certainly here in the U.S.—promote mediation and other forms of ADR as a means of relieving the demands litigation places upon overburdened court systems. But here in the U.S., at least here in the state in which I practice, we approach the issue of sanctions in mediation very differently.

In Massachusetts, Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution requires court clerks to make information on court-connected dispute resolution available to both attorneys and pro se parties, and requires attorneys to

provide their clients with this information about court-connected dispute resolution services; discuss with their clients the advantages and disadvantages of the various methods of dispute resolution; and certify their compliance with this requirement on the civil cover sheet or its equivalent.

However, although Rule 6 permits a court to impose sanctions on parties who fail to attend a scheduled dispute resolution session, it also prohibits courts from imposing sanctions for failure to settle and stresses the importance of ensuring that settlements are reached without coercion, particularly when parties are unrepresented by counsel:

Courts shall inform parties that, unless otherwise required by law, they are not required to make offers and concessions or to settle in a court-connected dispute resolution process. Courts shall not impose sanctions for nonsettlement by the parties. The court shall give particular attention to the issues presented by unrepresented parties, such as the need for the neutral to memorialize the agreement and the danger of coerced settlement in cases involving an imbalance of power between the parties. In dispute intervention, in cases in which one or more of the parties is not represented by counsel, a neutral has a responsibility, while maintaining impartiality, to raise questions for the parties to consider as to whether they have the information needed to reach a fair and fully informed settlement of the case.

Voluntariness and self-determination, along with confidentiality, may be under assault here in Massachusetts: as some of you no doubt recall, back in January a Superior Court judge issued a decision which penalized a party for failing to heed a mediator’s advice. This decision, fortunately, has been appealed.

As I have discussed here before, this is a path we do not want to embark upon. Sanctioning parties for failing to settle through mediation will only erode support and public confidence in the mediation process. While this approach may provide incentive to parties in Britain to come to the mediation table and reach a deal, there are other and better ways to promote settlement through mediation.

In a recent article entitled The Company We Keep: ADR, tort reform, and the erosion of justice, I took up cudgels in defense of litigation and attorneys.

It was not unreasonable of me then to hope for a little professional courtesy from my fellow attorneys who might perhaps return the favor by expressing as much support for mediation as I did for litigation.

My hopes were dashed at a program I attended recently on divorce law practice (the sponsoring organization and the location of this event shall remain nameless).

One of the topics on the agenda was the use of mediation by divorcing couples. There was no mistaking the fact that the program panelists, all of them attorneys, had strong opinions about mediation, none of them especially favorable:

“Mediators are not formally licensed by the state. All they need to have is 30 hours of training,” cautioned one panelist.

“Mediation can make sense when there are parenting issues to be discussed,” said a second panelist, “but generally speaking mediation can be a big waste of time and money. There are just too many cases that aren’t appropriate for mediation.”

“Mediation makes no sense when one party has a domineering, overpowering style and is a far stronger negotiator than the other party,” said a third panelist.

“It’s a waste of time for me to review an agreement that a mediator has drafted,” complained another, referring to the small amount of billable hours involved, “and it’s frustrating that they didn’t come to me first before going to a mediator—I could have helped them prepare for mediation.”

It’s not as if these folks weren’t making some valid points. Yes, currently mediators are not licensed or certified by the state. Yes, mediation is not appropriate for every case. Yes, it can be a problem when the parties are not equal in terms of bargaining power. And, yes, it’s an issue when parties insist on making important decisions without consulting with attorneys or other professionals first.

It was the lack of balance and accuracy in what the panelists had to say about mediation that was so troubling. Therefore, I provide here the counterpoint that was missing from the panelists’ discussion:

First, while it is true that there is currently no formal licensing or credentialing of mediators, most of us, regardless of what kind of work we do, have substantially more than 30 hours of training under our belts. Many of us undergo many hours of advanced training and continuing education, are members of professional associations, and attend on a regular basis conferences, roundtable discussions, and other programs relevant to our practice to keep our skills and knowledge up-to-date.

There are numerous sources of ethical rules as well at both the national and local levels which guide our professional conduct. In addition, many of us bring to our work as mediators relevant experience and training from our professions of origin—law, social work, psychology, finance, education, and so on.

Secondly, while it is true that not every case is appropriate for mediation, no one knows that better than mediators themselves. We conduct thorough intake, carefully screen cases before accepting them, and spend substantial time educating prospective clients about the process long before the first session gets underway. We are always alert for signs of physical or emotional abuse, financial malfeasance, or a lack of good faith on the part of any of the parties. Our goal is to ensure that mediation is going to be a good fit for the clients and the dispute. Because mediation is voluntary for both the parties and the mediator, something we make sure that clients understand up front, a party can walk away from the table at any time, and a mediator can terminate the mediation if continuing the process would violate ethical rules or not be in the best interest of the disputants or of third parties not present at the mediation (children, for example).

Third, while parties at the negotiating table are not always equals in terms of bargaining power, sophistication, and knowledge, skilled mediators work hard to address power imbalances and make sure that all parties are able to negotiate effectively. We ask tough questions of all parties, making sure our clients examine both the short-term and long-term consequences of the choices they’re considering. And, if the disparity in power between the parties is so great that one party cannot participate meaningfully in the mediation process, then a mediator will end the mediation.

Finally, mediators are just as concerned as attorneys that parties make fully informed decisions. It’s one of the fundamental principles of mediation. Therefore, as part of the intake process in divorce mediation, mediators typically recommend that parties consult with attorneys at all phases of the mediation process—to speak with attorneys in preparation for the mediation, to seek legal advice before making decisions or commitments, and to have their attorneys review any memorandum of understanding or agreement that the mediator drafts before the parties sign it. In fact, mediators encourage parties to consult with other kinds of professionals as well, depending upon the advice and input that’s needed—this could include the involvement of accountants, financial planners, appraisers, therapists, and so on. And these professionals, attorneys included, may participate in the mediation, if the parties choose.

Being an attorney myself, I would prefer to think that this distrust of ADR that I witnessed at the program I attended was rooted in a lack of understanding of mediation, rather than a competitor’s concern that mediation could spirit business away from a thriving divorce law practice.

As a mediator, I believe that there is a place for all of us at the table.

Mediators can save a divorcing couple time and money, enabling them to identify their areas of agreement, narrow the issues for the attorneys to address, communicate better, and, in the case of families, help parents continue to be partners in raising children.

And attorneys can provide individuals going through divorce with the advice and guidance they need to make rational, informed choices that will make sense not just for today but for years to come.

The contributions that both attorneys and mediators bring can make the divorce process less stressful and painful, and more productive and positive, for the clients who go through it. That seems reason enough for us to recognize, not diminish, the value that each of us brings.