Where Have All The Idealists Gone? Long Time Passing, Part IV

Adoption By The Courts

A major shift took place when lawyers grafted the mediation process onto adversarial litigation, where the focal point of the dispute was highly competitive zero sum games. Courts throughout the U.S., Canada and the U.K. encouraged and even mandated the use of mediation to help streamline caseloads. The process became wildly successful and has been utilized in the same fashion as other improvements to the civil justice system such as depositions, interrogatories and so on. Unfortunately, a tension occurred between the mediation process and the adversarial system of justice due to the different designs of each system. The adversarial system was inherently competitive and required arguments by counsel to a referee who would then search for the truth based on positions taken and evidence presented. The mediation system was intentionally cooperative and based more on dialogue, not arguments, in which the parties heard each other and then negotiated between themselves with the help of a referee. Both systems were elegant in their design, but when transplanted onto each other, the tension between cooperation and competition escalated.

The adversarial system is a set of independent parts forming a whole. It is primarily made up of processes like depositions and motions designed to gather and shape information so that it could be utilized to support the position of the advocate.  This is contrary to an inquisitive system where the third party referee is more involved in a neutral approach to investigating information and evidence from the case in order to come to a fair outcome.  Both are searching for the truth through different means. Mediation is styled as an inquisitive process but is not necessarily designed to search for the truth, but rather to find agreement, also known as the “deal.” In reaching for the deal, mediation promotes confidentiality as its centerpiece while both adversarial and inquisitive systems require transparency. The critical difference is that in adversarial and inquisitive processes, both sides are required to be fully informed of the evidence presented and have an opportunity to respond. Mediation of litigated cases can successfully proceed with impunity because of confidentiality.

Confidentiality can be at direct odds with both the adversarial and inquisitive systems because there is no penalty for deceptive behavior in mediation. The adversarial system, with transparency as its foundation, punishes deceptive behavior with sanctions in a way that attempts to promote honesty. Deceptive behavior ranges from twisting the truth to outright misrepresentation of evidence.  In mediation of litigated cases, this has led to a dependence on positional bargaining in order to get more of the limited resources available.  This dependence is contrary to the integrative or cooperative form of bargaining that the early idealists had in mind who shepherded the promise of mediation.

Stay tuned for Part V: The Drift of Mediation.

Read Part I: Introduction

Read Part II: History

Read Part III: Early Adopters

Read Part V: The Drift of Mediation

Read Part VI: Adapting to the Adversarial System

Read Part VII: What Approach Actually Works?

Read Part VIII: Make Some Music With Lawyers

Read Part IX: Arguments With Myself About The Future

Read Part X: A Practical View of the Future