The Silent War Between Arbitration or Mediation

Just when we thought that all was well on the western front of ADR, we find that there is at least an undercurrent of resentment and opposition to mediation as the ADR process of choice. In his prestigious third edition (2009) "The Law and Practice of Arbitration," Thomas E. Carbonneau, Orlando Distinguished Professor of Law and Faculty Director of the Arbitration Institute at Penn State University, has pulled out all stops in his attempt to put mediation in its place. He seems to be offended that our law schools have emphasized mediation and that "the ABA Section on Dispute Resolution appears to be disproportionately influenced by mediation or the mediation methodology" while arbitration "is by far more prevalent in law practice."

While this may seem sacrilegious to the dedicated cadre of mediators, it gets worse. Carbonneau continues with, "What has popular appeal is not necessarily what works" and "untainted by idealistic predilections" the "work of the law is, after all, adjudication, not training in would-be humanistic sensibilities." He sees an uneasy and competitive coexistence between arbitration and mediation. Carbonneau feels that judgment is "the hallmark of arbitration, whereas a form of parental behavioralism that emphasizes communication is at the core of mediation." However, he concedes that the "skilled mediator can-as effectively as any arbitrator exercising decisional authority-guide the process to particular results."

Carbonneau accuses arbitration and mediation of being "uneasy" bedfellows that leave the adjudication by the arbitrator as the "haven" of the lawyer rather than the negotiations of the therapist. And, in different fashion to mediation, "arbitration relies upon the arbitrator, not cooperation and communication between the parties." He insists that unlike mediation where "the mediator can become truly all-powerful and unchecked," arbitration "raises less anxiety than mediation." Because of a "good deal of stealth in mediation" and the fact that "many mediators want the protection of even greater confidentiality," he asserts that the lack of "judicial policing of mediation sessions" and the "psychological training" of mediators that enables them to "surreptitiously influence-or even coerce-the parties to accept the recommended reordering of their relationship," there is a "tyranny and thirst for power" that "can lurk behind the call to communication and cooperation, especially for parties who are particularly vulnerable to being influenced." Consequently, his conclusion is that the lack of checks and balances regarding mediator behavior "may pose a greater danger to the public than the would-be exercise of autocratic power by arbitrators."

According to Carbonneau, reliance on "the unregulated use of mediation as a primary basis for the resolution of civil disputes would represent an absolute 'deconstruction' of the law" leading to "a fully privatized, unregulated, and unaccountable process of dispute resolution" in which success would be determined by expectations of cooperation, communication, and specific behavior. He feels that simply a third party facilitated negotiation process, mediation "is too facile and its foundation too fragile to act as the vehicle for civil justice in American society." Its "terminology and beliefs of 'popular psychology' and the prospect of emotional manipulation...can truly compromise the participant's right to be free." His ultimate criticism is that "techniques of emotional manipulation could be practiced in the shadows of caucusing and sidebars," and that the "forceful mediator could 'persuade' a party to accept a position that is not in its best interest or representative of its basic desires and goals," since there are only a "few, if any, guard rails in mediation to protect against the exercise of overweening mediator power."

While arbitration definitely has its important place in the ADR scheme of things, as a result of the Carbonneau type of analysis mediation needs to rethink its approach so that we do create the "guard rails" to which he refers that will prevent "mediators" (whether lay persons, lawyers, or retired judges) inadequately trained in mediation skills and techniques from muddying the waters between arbitration and mediation through their settlement conference approaches that only reinforce those in the Carbonneau camp. Unfortunately, that is easier said than done. It seems that lawyers representing clients in mediation still do not have a clear picture of the process, and simply want someone to make the decision for the parties, forcefully if necessary.

I am reminded of one court-connected mediation that I conducted where the parties insisted on being in separate rooms with their respective lawyers during the entire process. I was the fourth mediator to attempt to resolve the dispute. The first two were lawyers and the third was a retired judge who immediately preceded me in the resolution attempt. When I heard from each of the two separate sets of parties and lawyers that the retired judge had told each that they were going to win at trial, I knew that my chances of settling the case were between little and none. My epiphany was accurate.

On another occasion, I read one of the evaluation comments submitted by a lawyer for a party in another court-connected mediation that I had conducted. He said, "Mr. Turk was very professional and easy to work with. Our problem is that we needed a mediator who will push the parties and counsel by giving an independent evaluation and who will challenge unreasonable positions forcefully. Because he employs a facilitative approach, we did not make much progress (though even with a more directive approach, we might not have reached a settlement)." In other words, he would have preferred that I had made the decision for the parties through an evaluative and/or directive approach.

It seems that in many instances mediation has become a bastardized version of arbitration because of the tendency of those using the process to select it as an expedited opportunity to "muscle" a settlement rather than to deal with the respective interests and underlying needs of the parties in conflict. The former is simply another vehicle to get the neutral to make a decision for the parties that they can accept as theirs rather than that of the independent third party, while the latter is the real purpose of mediation that truly sets mediation apart from arbitration. Whether the mediation process succeeds as originally conceived will depend on how well we ensure that those who claim to practice this art are in fact capable of doing so.