Remembering the Role of Justice in Resolution: Insights from Procedural and Social Justice Theories

It is surely a luxury, at this point in the field of dispute resolution, to be invited to identify those concepts that I view as absolutely essential to our canon. Borrowing a bit from Chris Guthrie\u27s wine illustration, I think it is fair to suggest that today\u27s presentations reveal a very impressive wine cellar, with many bottles of fine wine from which to choose. I will spotlight one part of this wine cellar, where concepts regarding procedural and social justice theories can be found. I will focus primarily on procedural justice but will also reference those theories of social justice that link these two dimensions of justice, particularly in a democracy

Bringing Transparency and Accountability (with a Dash of Competition) to Court-Connected Dispute Resolution

Among the various dispute resolution processes, mediation is the most widely institutionalized in American courts. As a result, this Article focuses primarily, although not exclusively, on the data collected and disseminated regarding court-connected mediation. The Article begins with a brief description of the institutionalization of mediation and other dispute resolution processes in the federal judicial system and in select U.S. state court systems. This narrative reveals substantial reference to the availability of mediation but a dizzying patchwork in terms of institutionalization and a significant lack of system-wide information in some states. The Article then focuses on the data that these courts collect and make publicly available regarding the extent of the use and effects of court-connected mediation. What do we know about the number of referrals to court-connected mediation? What do we know about the number of cases that actually mediate? What do we know about the effects of mediation, in terms of settlement and parties\u27 perceptions of fairness? Except for data from a few pioneering federal district courts and the state courts of Florida, we do not know much. The Article then suggests what we ought to know about the use and effects of court-connected mediation, at least in terms of collecting data elements and reporting aggregated results. Finally, the Article urges that a constellation of international, domestic, and technological developments provide both legislators and courts with a unique opportunity to institutionalize the collection and publication of key metrics regarding court-connected mediation and court-connected dispute resolution more broadly

Dispute Resolution Neutrals\u27 Ethical Obligation to Support Measured Transparency

In 2016, the Consumer Financial Protection Bureau (CFPB) issued proposed rules that would have brought substantial transparency to mandatory pre-dispute consumer arbitration. In particular, the CFPB proposed to require regulated providers of financial products and services to report to the CFPB regarding their use and the outcomes of arbitrations conducted pursuant to arbitration clauses, and further, the CFPB proposed to make such information public (with appropriate redactions). Although Congress and the President ultimately annulled the CFPB’s proposed rule, its introduction revealed the need for dispute resolution neutrals to support bringing “measured transparency” to private dispute resolution. To place the CFPB’s proposal in context, this Article draws from the analysis conducted by the ABA Section of Dispute Resolution and examines the transparency that (1) federal and state courts provide regarding their court filings and outcomes; (2) some states, some federal agencies, and some domestic and international dispute resolution organizations now require or provide regarding the use and outcomes of arbitration (and to a lesser degree, mediation); (3) some users of dispute resolution achieve through “self-help” initiatives; and (4) some commentators have proposed for online dispute resolution. Ultimately, based on this analysis, the ABA Section of Dispute Resolution chose to support the CFPB’s proposed rules regarding transparency in order to protect the integrity of arbitration. The Article then turns to dispute resolution neutrals’ ethical obligation to support the integrity of their processes. Because there are proposals to revise the Model Standards of Conduct for Mediators, the article focuses on mediators’ ethical obligations. Contracts of adhesion increasingly include mandatory pre-dispute consumer mediation clauses in the same manner that they include arbitration clauses. Many courts order the use of mediation, and increasingly, statutes require mediation. The Article urges that mediators should have an ethical obligation to support measured transparency, particularly when (1) mediations are mandated by courts, legislatures, or contracts of adhesion and (2) the resulting mediated settlement agreements will be subject to only narrow and deferential judicial review or are granted expedited judicial enforcement. The Article concludes by proposing the creation of a set of customized Model Standards for “imposed mediation.

Court-Ordered ADR: What are the Limits?

Increasingly, courts across the country are turning to non-judicial dispute resolution processes - alternative dispute resolution or ADR - to handle overwhelming caseloads.\u27 Proponents of non-judicial processes state that ADR benefits courts and litigants by reducing the time between the filing and disposition of cases, saving judges\u27 time so that they are available for the cases that really need them, saving money for the parties to the suit, and perhaps most importantly, increasing litigants\u27 satisfaction with the manner in which their disputes are resolved. A growing body of empirical evidence has begun to support the proponents\u27 claims. A study of court-annexed arbitration showed greater litigant satisfaction with the process and more rapid termination of cases. Likewise, research in Hawaii and the Northern District of California has demonstrated high litigant and attorney satisfaction with court-annexed ADR programs. Most recently, the Office of the State Court Administrator in Minnesota released a report which compared adjudication with court-annexed mediation and arbitration. Mediation and arbitration scored higher than adjudication on every measure of client satisfaction. Yet, a nagging tension exists. On one hand are harried judges who see the promotion of informed and fair settlements [as] one of the most important aims of pretrial management and view ADR as a useful, beneficial, even necessary settlement tool. These judges are joined by state and federal legislators who are concerned about the expense and delay which are hampering the courts. On the other hand are parties and attorneys who have consciously chosen the traditional litigation process. Should courts be permitted to sidetrack these parties and their attorneys from traditional litigation? Or is ADR, in the words of a Pennsylvania court, simply a [n]ew device which is part of contemporary litigation, a device which must be used to adapt the ancient institution of [trial] to present needs and to make litigation an efficient instrument in the administration of justice?\u27 Guidance on these questions is strikingly sparse, particularly in light of the courts\u27 increasing experimentation with ADR. One commentator has noted that the rules, statutes, and cases dealing with this issue constitute only a few \u27dots\u27 in a dot-to-dot line drawing which has yet to be completed. Of necessity, therefore, the analysis in this article will focus on the few cases addressing courts\u27 authority to order the use of ADR and will describe the patterns that are beginning to emerge. Most of the cases involve court-ordered arbitration programs or orders to participate in summary jury trials. Challenges mounted against these processes have been based primarily on the seventh amendment guarantee of a right to a jury trial and charges that courts have exceeded the authority granted under Rule 16 of the Federal Rules of Civil Procedure (a very small number of challenges, not dealt with here, have been based on equal protection claims and other rules in the Federal Rules of Civil Procedure). Courts have used various standards to test the extent and limits of their authority but few limits on that authority have been revealed. With one notable exception, courts have strongly defended their right to order parties to use ADR

Magistrate Judges, Settlement, and Procedural Justice

This Article begins, in Part I, with an overview of magistrate judges’ history and role generally, including a discussion of the mechanism of “blind consent” that must be undertaken before a magistrate judge may conduct a trial. Part I then turns to magistrate judges’ role in settlement and ADR, outlines the procedural and ethical rules governing judges’ role in settlement, and highlights research revealing lawyers’ concerns regarding judges’ role in settlement. In Part II, the Article provides a brief overview of mediation in the federal courts and considers the relationship between judge-hosted settlement sessions and mediation. With this background regarding the magistrate judges’ particular role in settlement and the procedural, ethical and dispute resolution-related contexts within which judicial settlement fits, the Article turns in Part III to an overview of the procedural justice literature and then, in Part IV, returns to the three scenarios described supra to consider whether parties are likely to perceive both the adjudicative and settlement phases as procedurally fair. This analysis reveals the need for structural changes, including enhanced clarity regarding the scope and limits of confidentiality, strict limits on magistrate judges’ use of ex parte meetings, the need to insert a second opportunity for blind consent after a magistrate judge conducts a settlement session, and the need to provide magistrate judges with the opportunity to receive feedback and engage in self-reflection regarding the procedural fairness of their settlement efforts. In Part V, the Article reviews mechanisms currently used to provide judges with opportunities for feedback and self-reflection, and introduces a new tool that focuses particularly on the procedural justice of settlement sessions

Stepping Back Through the Looking Glass: Real Conversations with Real Disputants About Institutionalized Mediation and Its Value

This Article describes what a group of real disputants perceives as most valuable about agency-connected mediation before, soon after, and eighteen months after they participated in the process. The Article is based primarily upon qualitative data from in-depth interviews with parents and school officials who participated in special education mediation sessions. Though the specific context of these interviews is obviously important, these disputants and their disputes share many commonalities with disputants and disputes in other contexts and, as a result, these disputants\u27 views have relevance for the broader field of mediation.These interviews suggest that both before and after disputants experience mediation, they place great value upon mediation’s ability to improve the “procedural justice” of their discussions and decision-making – i.e., improving their ability to speak, be heard and be treated in an relatively dignified and even-handed manner. Just as importantly, however, the disputants value mediation’s ability to deliver resolution of the disputes that gave rise to the invocation of mediation – or at least meaningful progress toward that resolution. They seek improvement upon their currently conflicted situations.Further, the interviews suggest that if disputants are reassured that the mediation process and the mediators’ behavior are grounded firmly in procedural justice, they also value an eclectic and apparently conflicting variety of mediator interventions designed to move disputes toward some form of clarification or resolution. These reactions suggest that the mediation field’s current debate over the relative superiority of “evaluative,” “facilitative,” or “transformative” approaches misses the point. Depending upon their implementation, all of these types of interventions have the potential to be consistent with and enhance mediation’s dual promise of procedural justice and resolution. All three types of interventions, however, also have the potential to hinder the dual achievement of procedural justice and resolution. Thus, the focus of the field should not be upon ensuring orthodoxy with any particular mediation model, but with crafting processes that use all three types of interventions in a manner that serves both procedural justice and resolution. The post-mediation interviews also reveal the increasingly dominant technique of caucus as a tool that is particularly important to disputants as they reflect on their mediation experience. Further, caucus is revealed as a particularly potent tool. It can be very effective in helping to produce settlements and providing an opportunity for disputants to be heard. But caucus also may reduce disputants’ ability to hear each other and may invite the use of coercive or manipulative bargaining behaviors. These uses of caucus can endanger the goal of offering an experience of justice in mediation. Thus, these interviews suggest that the technique of caucus deserves much more attention from researchers, mediators, trainers, and policy makers

Introduction to Volume 5 of the Yearbook on Arbitration and Mediation

Professor Welsh introduces Volume 5 of the Yearbook on Arbitration and Mediation

The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization?

Ethical codes for mediators describe party self-determination as “the fundamental principle of mediation,” regardless of the context within which the mediation is occurring. The definition of self-determination, however, is a matter of dispute. Based on a review of the debate surrounding the promulgation and revision of ethical codes for court-connected mediators in Florida and Minnesota, this Article demonstrates that a vision of self-determination anchored in party-centered empowerment is yielding to a vision that is more reflective of the norms and traditional practices of lawyers and judges, as well as the courts’ strong orientation to efficiency and closure of cases through settlement. Disputing parties are still responsible for making the final decision regarding settlement, but they are cast in the role of consumers, largely limited to selecting from among the settlement options developed by their attorneys. Indeed, it is the parties’ attorneys, often aided by mediators who are also attorneys, who assume responsibility for actively and directly participating in the mediation process, invoking the substantive (i.e., legal) norms to be applied and creating settlement options. It is quite clear that court-connected mediators are providing evaluations of the parties’ positions (e.g., estimates of the strengths and weaknesses of the parties’ cases, suggestions regarding settlement options, etc.). When offered in the context of a party-centered, facilitative mediation, evaluation can serve a useful educational function and can aid party self-determination by assisting the parties in making informed decisions. As mediation has become increasingly institutionalized in the courts, however, a small but growing number of disputants have approached courts and ethical boards to claim that mediators’ aggressive evaluation or advocacy for particular settlements actually coerced them into a settlement. In response, Florida and Minnesota chose to permit evaluation in their ethical guidelines for mediators, but incorporated safeguards pronouncing party self-determination as the paramount goal of mediation and clearly prohibiting coercion by the mediator. This Article urges that despite the aspirational language and the good intentions underlying Florida’s and Minnesota\u27s ethical guidelines, the narrowed vision of party self-determination that is now institutionalized in these guidelines will be understood as no different from the free will which is to be exercised by parties involved in judicially-hosted settlement conferences. In that context, when parties have alleged that the judge or magistrate presiding over their settlement conference coerced them into reaching a settlement agreement by evaluating the parties’ cases or urging a particular settlement, the courts have generally refused to find coercion unless the judge or magistrate engaged in outright threats or issued sanctions. Indeed, one court has written, “We do not agree that a judge should refrain from offering his or her assessment of a case on the eve of trial, solely to avoid the appearance of impropriety. Such a policy would effectively render meaningless a judge’s role in the settlement process.” It is unlikely that the courts or ethical boards responsible for interpreting and enforcing mediators’ ethical guidelines will judge aggressive evaluation as coercive just because it occurred within the context of a mediation rather than in a judicially-hosted settlement conference, especially if the vision of party self-determination in mediation is no longer grounded in the concept of party empowerment.This Article examines several possible means to protect parties’ self-determination in mediation and ultimately advocates for the adoption of a three-day, non-waivable cooling-off period before mediated settlement agreements may become enforceable. This modification would permit the continued use of evaluative techniques as a means to educate parties and inform their decision-making while rewarding the use of techniques (often facilitative) that increase parties’ commitment to their settlement. The more committed parties are to their settlement, the less likely it is that they will withdraw from the settlement during the cooling-off period. Ultimately, this proposal has the potential to keep “muscle mediation” in check while also allowing the return to a vision of self-determination which is closer to that which first dominated (and inspired) the contemporary mediation movement