Should Mediation be Mandatory?

Many courts in the United States make participation in some form of alternative dispute resolution mandatory for most civil actions. See, e.g., N.H. Super. Ct. R. 170(A). By far, the method of ADR preferred by the courts is mediation. Since most lawsuits settle anyway, the theory behind requiring the parties to mediate seems to be that the courts might as well nudge litigants in that direction so that settlements will be more likely to occur sooner, rather than later.

There is some force behind this reasoning. Inertia is probably the primary reason why many cases don’t settle until the parties are "on the courthouse steps," and forcing all the litigants to look at their files and sit down together at the same time can often settle cases that would have otherwise gone the distance.

In my view, when the parties want to settle, this imposition by the court does no harm, either to the litigants or to the public’s perception of the legal system. However, as much as I believe in the process of mediation, some cases are just not suitable for it, and it becomes a useless exercise, doomed to failure from the beginning. In my role as volunteer mediator for the New Hampshire Superior Court, I have participated in many like that. One in which I was involved within the last year is fairly typical — damages fairly well established, but hotly contested liability and an insurance company that clearly indicated it would roll the dice if the plaintiff didn’t reduce his demand to a level that would net him a figure roughly equivalent to the price of a case of beer. The plaintiff could afford to roll the dice too. All participants agreed that it would be stupid for the plaintiff to settle within the insurance company’s range, so the case didn’t settle.

Besides wasting the time of all participants, forced mediations where some or all of the parties really do not want to settle also have the effect of undermining the public’s confidence in the neutrality of the courts. Despite official protestations that mediation is an entirely voluntary process, many litigants and their attorneys maintain the rather cynical view that if they are being forced to mediate, they are really being pushed to settle; and if the case doesn’t settle, those whom the judge perceives as "unreasonable" will have cause to regret it.

The right to a trial in a completely neutral forum is firmly imbedded in our national consciousness. Any policy that has even the flavor of abridging that right should be avoided. Mediation as an option for resolving disputes is now well established in the legal community and the insurance industry. All who are motivated to settle cases are fully aware of this option, and need no nudging by the court to exercise it, if they want to. The choice should be theirs, not the court’s.