Pre-Litigation Compulsory Mediation: A Concept Worth Negotiating

Kendall D. Isaac
Fort Valley State University

2011

La Verne Law Review, Vol. 32, May 2011

Abstract:

Since its inception, mediation has steadily grown into a viable dispute resolution mechanism. Indeed, it has grown from a seldom understood concept – frequently confused with meditation – to a common platform that has risen so high in popularity that the USA Network has even based a sit-com on it! Anthony M. Lanzone, who has contributed to many ADR panels, defines the mediation process as “a non-binding, confidential dispute resolution process before one or more third party neutrals. Individuals and entities generally participate in mediation in order to resolve their dispute through non-binding negotiations.”

From humble beginnings, mediation is now a staple of the administrative charge and litigation process. Many governmental agencies have implemented mediation into their charge handling process. For instance, the Equal Employment Opportunity Commission (EEOC) offers mediation to charging parties and respondents both at the onset of a discrimination charge filing and later in the process if a “probable cause” finding is made and the case is set for a trial before an administrative law judge. The process has been so successful for the EEOC that they now boast a 70% settlement success rate. Similar success rates have been stated in other mediation settings as well. Regardless of the actual settlement percentages touted, it cannot be denied that mediation is an extremely valuable and viable dispute resolution mechanism.

The growth and acceptance of mediation in the court system has been clearly evident in the past decade. It is common to see courts employ a team of both staff and volunteer mediators to help resolve disputes and ease an overly congested court docket. But while the concept of voluntary mediation has been readily accepted by the legal community and the parties that they represent, the acceptance has been largely due to the fact that there is little cost to participate, the process has an advantageous confidentiality component, and – most importantly – the decision regarding participation in mediation is just as voluntary as the option to enter into a negotiated resolution. Everyone has a choice to walk away from the concept of mediation just as they have the option to walk away from a potential resolution at the table. No harm, no foul.

But what if parties were forced to mediate their disputes? What if no case could proceed to trial unless there was first an attempt at mediation? Better yet, what if virtually all civil lawsuits/complaints could not be filed in court without first presenting evidence that the parties have attempted to mediate their dispute? Is this a crazy concept? Perhaps it is, but as we will see, the concept is not unheard of, and it is definitely plausible.

Pre-Litigation Compulsory Mediation- A Concept Worth Negotiating

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