From FOI Lela Love (Cardozo) – dispatches from the Melnick Symposium at Cardozo – Is Mediation a Sleeping Beauty?

On November 2, 2014, at the Cardozo Journal of Conflict Resolution fall symposium, speaker after speaker asked Is Mediation a Sleeping Beauty?” It was a taking stock event with luminaries from the field seeing this as a turning point in reviving core elements of mediation or succumbing to the devolution of mediation in the direction of an adversarial litigation-lite process or, at best, a settlement conference. Most thought that mediation was indeed sleeping and not all together beautiful and that action was needed to revive her.

Here are highlights from the speakers:

  • Professor Giuseppe De Palo (ADR Center in Rome, Italy) proposed mandatory mitigated mediation (mandatory mediation with an easy opt-out) as a response to the underuse of mediation throughout the European Union.  Thanks to this process, Italy leads countries in the EU in the use of mediation.
  • Kim Kovach suggested that mediation is in a coma due to its marriage with litigation in court settings, and the resulting mutant child (liti-mediation) is indeed unattractive.
  • Professor Jacqueline Nolan-Haley (Fordham Law School) described these times as a season of light with mediation’s popularity at a high point and also a season of darkness from abuse of process and confusion of the mediator’s role.
  • Professor Robert A. Baruch Bush (Hofstra University School of Law) concluded that mediation had been drawn into an intoxicating problem-solving culture—resulting in many mediators being too focused upon the “drug-like high” of settlement.
  • Professor James Coben didn’t mince words when he said that he believed mediation has turned ugly – another tool for litigators to delay and abuse the judicial system. He also described our current system for selecting mediators as an “aristocracy,” not based on mediator skill but instead on inflated reputations.
  • Professor Josh Stulberg explored whether interest-based bargaining theory, often the mediator’s privileged approach for fostering negotiation, operates to reinforce party inequalities and undermine party self-determination, contrary to the presumptively salient values of the mediation process.
  • Eric Galton blamed commercial mediators for caving in to lawyer demands to eliminate joint sessions, limit party participation, and provide evaluations.
  • Professor Nancy Welsh shifted to the fairy tale of Cinderella, arguing that as courts prioritize case closure and lawyers’ preferences over process quality or the protection of parties’ self-determination, they too often behave like the self-interested and vain stepmother. Maybe the courts can be the Fairy Godmother, though, by granting mediation the markers of legitimacy and thus enabling others to appreciate the process’ inherent beauty.
  • Professor Erez-Navot pointed to “wicked witch” elements in child permanency mediation, including reduced party participation and representatives who are more concerned with their professional relationships with judges and adversaries than the welfare of the parties they represent.
  • Professor Carol Liebman suggested candidates for Prince Charming might be: mandatory mediation (for certain cases), pay for mediators (in situations where other professionals are being paid), and adherence to core mediation values.
  • Tracy Frisch discussed several efforts of the AAA to respond crises, such as Hurricane Sandy and the bankruptcy crisis in Florida.
  • Brad Heckman shared his experience using social media to promote mediation and described the unparalleled access and exposure he found in using outlets such as Twitter and participating in TEDx.
  • Laurel Kaufer struck a positive note, finding beauty in mediation as she described the success of Prison of Peace, a nonprofit organization she co-founded that trains long-term inmates in mediation, life, and peacemaking skills.

The Journal of Conflict Resolution will be publishing a symposium edition in Spring 2015.  Many of the presenters at the symposium will be publishing articles in line with the themes discussed at the symposium.

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By Art Hinshaw

Art Hinshaw is a Clinical Professor of Law and the Director of the Lodestar Dispute Resolution Program at ASU Sandra Day O'Conner College of Law. His research and teaching interests focus primarily on mediation and negotiation, often bridging ADR theory and practice. He is an avid writer and contributor to ADR Prof Blog.