Why Order Parties to Mediate?
I am writing this post to pose a relatively simple question to my friends and colleagues in the ADR community: If alternative dispute resolution is as beneficial as we claim, is their any good reason to force parties to mediate? If mediation is as beneficial as we claim, parties should want to mediate.
Parties make decisions to further their self interest throughout the litigation process. If engaging in mediation can help the parties, presumably the parties will mediate without being ordered to mediate. Parties engage in direct settlement negotiations and mediate voluntarily all the time.
Surely ordering parties to mediate creates more work for mediators, engages court administrators in court-connected programs and reduces judicial workload, but these are not good reasons for ordering parties to mediate.
Mediation is supposed to be a process that allows parties to exercise self-determination in order to reach a voluntary settlement as an alternative to litigation. Ordering parties to mediate under there threat of court sanction may be fundamentally at odds with the core values of mediation. To the extent that parties are able to exercise self-determination and decisions about when, how, where, with whom and whether to mediate, I believe their chances of reaching settlement increase. The more coercion is employed to force parties to mediate, the less chance the parties have of reaching settlement.
When mediation was a new process that parties could not fully understand or appreciate, courts may have been justified in ordering mediation to overcome the parties lack of knowledge. Mediation is now no longer an unknown or experimental process. If parties are so irrational that they can’t weigh the pros and cons of mediation for themselves, how can they be expected to weigh the pros and cons of settlement offers during mediation? While ordering parties to mediate may serve some special interests, I would question whether it is a good general rule.
