Courts|Mediation|United States

Mediation and our System of Justice

Retired Magistrate Judge Wayne Brazil was an innovative, dedicated and creative contributor to the growth of court-connected ADR in the 1990s up until his recent retirement.  On June 3, he honored the New Jersey State Bar with a keynote speech at the annual New Jersey “ADR Day,” and his remarks were instructive and inspiring.

Denying that he had “anything new to say to experienced mediators,” Brazil instead posed the questions: What can mediators contribute to shaping the future?  How does court-mandated mediation fit in our system of justice?  Is it worth the expenditure of time, money and patience for able members of the bar to serve in court-mandated mediations?

Judge Brazil admitted the challenges.  Unpaid mediation service is being criticized in Los Angeles and in New Jersey, for valid reasons.   Many state court programs tolerate poor mediator quality and torpid party participation.  He reminded the group that the “center of gravity” of the American justice system is in state courts in urban areas, the vast majority of whose cases involve modest claims.  Eighteen million civil cases are filed each year in state courts, and in California alone 60% of the civil cases filed involve less than $10,000. 

These are tenant problems, debt collections, credit card disputes, most featuring at least one party who is unrepresented.  These matters are of vital importance to the litigants but impossible for the state court systems to address meaningfully, or for the litigants to approach with confidence that practical justice will result.

Federal courts have an even more disturbing statistical profile, if the question is whether they provide value to those who utilize them.  Fewer than 2% of filed cases proceed to trial; 10% are dismissed on substantive motion; and 8% are dismissed on procedural grounds.  That means that 80% of litigants filing federal cases get no value whatsoever from the court — unless they somehow get the opportunity to exchange information that leads to the settlement of the case.

The transaction cost of litigation is the predominant reason for judicial dysfunction.  The costs of bringing suit are far disproportional to the damages being sought in almost every case.  For the poor, even modest costs discourage maintaining a lawsuit.  And the system’s response?  Legal Aid is being cut, court resources are being reduced, and defaults are entered in most collections cases irrespective of the merits.

In a system thus stricken, the role of the ADR practitioner is critical.  For Brazil, the only way the judicial system can fulfill its social role with any modicum of public satisfaction is for public judicial institutions to create partnerships with private practitioners.  The model is familiar:  Enforcement of many statutes is entrusted to private plaintiffs’ bar.  Validation of civil rights, consumer rights, or tenancy regulations is customarily obtained through private causes of action, not through enforecement by public officials. 

The principled resolution of civil claims involving relatively small amounts relies upon the availability and willingness of trained members of the private bar to devote themselves to that task, and strengthening that partnership requires the provision of at least some services for free.  For a capable attorney or mediator with a successful practice, it is not too much for the judicial system to ask two or three instances a year of unbilled service.

Judge Brazil said that the courts must deliver better service to more people.  That is the standard to which he suggests that court ADR programs should be held.  If court-mandated ADR doesn’t benefit the litigant users, then it shouldn’t be offered.  And he was of the sound conviction that, in a properly designed and administered program, the benefits of mandated ADR far exceed its burdens to the litigants

Perhaps, when it was first introduced, the rationale for court-annexed ADR was reduction of cost and delay.  Brazil suggests that now its strongest justification is the improvement of the justice system itself.  As a consequence of the application of ADR processes to a broad category of civil cases, litigants appear before the court more focused, and the issues are more defined.  Through ADR, management tools are provided to judges and to counsel.  More options are provided to the public who seek assistance in solving their problems.  Cases are less likely to get lost in an administrative morass.  Better service is extended to more people.  And more people who seek help, are helped.

Brazil ended with a touching personal testimony to the fruits of mediation from the point of view of the neutral.  Everyone wants to feel connected to society, he reminded us.  No one likes to be ignored, or to exist unheard, or to perceive themselves disrespected or marginalized.  The justice system is ill-equipped to respond to those needs, preoccupied as it is with passing judgment. 

By contrast, mediation presumes the legitimacy of everyone in the room.  Respect is infused in the process itself.  And one of the most useful indicia of respect in a mediation is the careful, patient and systematic thinking that the mediator engages in, and that she encourages in others. 

Accustomed to being shunted about, ignored, attacked, doubted in the courtroom, the litigant in mediation feels invited, listened to, respected, honored.  The party in mediation feels like a human being.  And so does the mediator.

1 Comment
  1. Thanks for the summary. I understand the logic of everything the judge is saying, but I’m not sure his conclusion follows. If mediation is critical to reducing the transaction costs of litigated disputes, why is the solution to depend on volunteer mediators in combination with referrals to private mediators? Wouldn’t the courts get more bang for the buck by putting more mediators directly on the court staff? I recognize the budget problems courts are dealing with, but they should be able to accomplish this within their existing budgets. If you assign more judges to doing settlement conferences, you don’t need as many doing trials. If you had more paid mediators on staff, you would need fewer court personnel dealing with motions and other pre-trial proceedings. So you don’t need to increase court funding to put paid mediators on the court staff. You just need to re-allocate some responsibilities.

    The issue might be the perception of the legitimacy of public funding for private dispute resolution. We have to recognize, however, that we are already spending a lot of public money for that purpose, and it has a value in keeping the peace and giving everyone–whether you are involved in a dispute or not–confidence that their contracts can be enforced and their injuries redressed. Parties are not expected to foot all of the cost of dispute resolution themselves, when they bring their disputes to court. The same should be true for “alternative” means of resolving disputes, which are just as important a part of the justice system.

    I’d like to see more mediators getting paid for their services, because their services have just as much value as the services of a judge. And I also think we can justify having taxpayers pay for some of those services for the same reason that we feel an obligation to provide free court services to parties involved in private civil disputes. Everyone benefits from a public dispute resolution system, whether we call it court or ADR. And there is still a role for private mediators to play, just as parties can choose private arbitrators instead of the public court system.

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