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.