Should Mediation Be Mandatory?
Jurisdictions throughout the country are increasingly establishing mandatory mediation programs. 
At first glance, “mandatory mediation” would seem to be an oxymoron to the mediation community where “self-determination” is a fundamental tenet of theory and practice, trumpeted for years as one of mediation’s highest goals.
Is forcing people into mediation contrary to a fundamental underpinning of the field and therefore doomed to failure? If it is, why are more and more jurisdictions adopting mandatory mediation programs? And, most importantly, does mandating mediation work?
It appears it does. First, let’s look at the numbers. It turns out that in almost all jurisdictions with mandatory mediation programs, the success rate is somewhere between 60% and 65%. This in itself underscores the enormous success of the programs and highlights their potential benefits:
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Reduced court caseloads
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Reduced time and expense spent on litigation
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Case resolutions where the parties can directly participate in the outcomes
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Resolutions with long lasting, positive effects
I do not know if “dissatisfaction statistics” are kept, but if dissatisfaction were significant, presumably the success rates wouldn’t be so high.
So how is it that mandatory mediation programs, which seem contrary to the basic spirit of mediation, are successful? My conjecture is that once people get involved in the mediation process they recognize its value, and for reasons that are not hard to understand.
We all know the difficulties and pitfalls of litigation. It’s time-consuming, expensive, and sets up a winner take all process, which doesn’t allow for creative decision making that can be mutually beneficial, or at least more beneficial than a verdict or judicially imposed decision. And even though most cases settle, these are very often eve of trial settlements that limit the opportunity for conversation, connection, and alternative resolutions.
In every area in which I have mediated – Family, Commercial, Employment, even Personal Injury – mediations allow for and can result in better outcomes.
In Family matters it permits families to continue on a firmer footing over time with less anger and bitterness.
In Commercial litigants sometimes figure out ways to continue doing business together or at least put the matter behind them.
In Employment matters (which often feel like family cases), mediation allows both sides to be heard so that resolutions (even re-employment occasionally) can be achieved with less bitterness and ongoing consequences.
In Personal injury matters litigants, especially plaintiffs, may feel that they received a fair hearing and a fair result.
Mediations can also give attorneys some room for maneuvering, both with their clients and the other side, that can open up logjams.
What has your experience been with mandatory mediation? Does it work? What are the benefits? Are there pitfalls? Does it work better in some areas than others?
I look forward to the discussion.
Gary Shaffer
347.314.2163
