Conflict Resolution|Courts|Mediation|Negotiation|systems design

Imagining the Perfect Environment for Mediation

THE EXERCISE:  Imagine a market with fully successful commercial mediation.  (Its success is measured by the breadth of take-up by commercial disputants and the infrequency of litigated cases involving business disputes.)  What are its attributes?  What conditions gave rise to this broadly-accepted use of mediation as a day-to-day method of doing business?

Put otherwise, who are the stakeholders in the business dispute resolution process and how are their interests satisfactorily addressed by the mediation of commercial disputes?

COURTS:  Courts in the jurisdiction we’re imagining contribute to the broad use of commercial mediation in two ways:  Their commercial irrationality and their powers of coercion.

In the first instance, obtaining an outcome from a court in this jurisdiction is expensive, prolonged, uncertain, antagonistic, and subject to appeal prior to finality (a process that has its own costs, delays and uncertainties).  Outcomes from this court are restricted to damages recognized by the law of the jurisdiction — usually only money — and do not address certain remedial necessities that progressive commercial relationships dictate.  The delay is commercially irrational and the cumulative cost is prohibitive for all but the largest commercial claims.  Thus, no rational business is comfortable managing its disputes relying on this institution.

In the second instance, these courts are empowered to require litigants to mediate certain types of disputes.  Motivated in part by a desire to provide early voluntary resolution of disputes that, historically, end up being resolved, and also in part by a concern to preserve their own resources in order to provide appropriate attention to disputes that require it, the court in our hypothetical jurisdiction has adopted a “presumptive mediation” rule pursuant to which litigants filing certain types of claims may expect that, barring a motion to be exempted, they will participate in a mediation regarding their claim.

(The obverse is that, in a jurisdiction where the courts are easily accessible, outcomes are prompt and reliable, and judges are reluctant to “outsource” dispute resolution, it is unlikely that mediation will take hold.)

BUSINESS MANAGERS:  Within the management of the commercial entities doing business in this jurisdiction, there is a manager charged with handling the portfolios of disputes in which the company is engaged.  At any one time, these may include disputes with employees, competitors, government regulators, suppliers, customers, communities, or contracting parties.  This person may or may not be an attorney, but is certainly a skilled and trained manager.  The charge of this manager is to handle the portfolio in a way that avoids expense, maximizes return, and avoids long-term contingent liabilities (i.e., the same goals of any other profit center of the business).  Thus, in this jurisdiction, business conflicts have been de-mystified, impersonalized, and recognized as manageable contingencies similar to hedging against fluctuating currency values and interest rates, or maintaining just-in-time inventory controls.

ATTORNEYS:  Attorneys in this jurisdiction may be divided into two groups:  Those who are busy and those who are not.  Those in the first category are economically incentivized to devise early and favorable dispute outcomes for their clients.  Indeed, they are retained pursuant to engagement terms that are “front-loaded,” with premiums awarded for early resolution of disputes and penalties for failure to hit target goals.  These arrangements yield value to both the lawyer and her client, and both constantly seek methods to provoke early and meaningful negotiated resolution of claims. The attorney successfully engaging in these processes gets a satisfied client, an early and boosted fee, and the opportunity to turn to the next case on similar terms and with identically promising outcomes.

Those in the second category don’t have a “next case” to turn to and may be reluctant to obtain early resolution, foregoing the fees associated with old-fashioned document exchange, depositions, motion practice, and other features of litigation.  These lawyers are motivated to settle the case eventually, but as late in the litigation as possible. In this jurisdiction, however, their practice is regulated.  The bar associations, in conjunction with the courts, have promulgated certain ethical rules that require, among other things:

(i) that all lawyers must advise clients of alternatives to litigation, including the courts’ presumptive mediation program;

(ii) that all clients must be handed an approved pamphlet explaining the nature of mediation, as well as its costs and benefits; and

(iii) that all lawyers must prepare and submit to the client and the court, prior to the first conference with the judge, a litigation budget.  The budget, which is confidential, must set forth estimated costs (a) for a motion to dismiss the case; (b) through discovery to a motion for summary judgment; and (c) through trial.

These ethics rules are designed to empower clients to make informed decisions about whether to proceed with litigation without investigating early and voluntary mediation.

MEDIATOR COMMUNITY: In our ideal conditions, the forces of the service market that arose from the initial growth of mediation has yielded a group of skilled (and expensive and in-demand) business mediators and acceptable (and more affordable and more available) business mediators.  These professionals enjoy the legal protections of privilege and confidentiality pursuant to court rule and legislation.  Fees, styles, selection and qualifications are market-driven and there are no barriers to market entry.  Some mediators are attorneys trained in dispute resolution and can assist disputants to assess the likely outcome and costs of litigation in the event the mediation process fails.  Some are people of deep business management experience and can assist disputants in identifying their business interests and probe how an outcome can be framed that addresses those interests.  Some combine those attributes.  Incompetent mediators (like incompetent plumbers, lawyers and teachers) left the market as it matured and assumed the characteristics of any well-developed service industry.

BUSINESS ORGANIZATIONS:  The purpose of a Chamber of Commerce is to protect the interests of its members and to advocate policies that promote healthy and growing businesses.  The Chamber of Commerce of this jurisdiction has recognized that the belligerence, uncertainty and economic waste associated with business-to-business litigation hampers overall commercial growth.  It has therefore elevated the use of business mediation to the level of a requirement, like paying dues.  Mediation is obligatory:  Any member of the Chamber who is in a dispute with another member, and who refuses to mediate the dispute upon demand, is expelled from membership.

The same rule applies to industry-specific business organizations.  The Insurance Roundtable, the Retail Association, the Healthcare Provider Association, and all other affinity groups have identical rules.  Their mission is to promote growth in their respective fields and to address hindrances to that growth, and they all recognize that inter-company conflicts are such hindrances.

CONCLUSION:  The implications of this portrait are perhaps a bit unsettling.  What is the role of coercion, whether by courts or by business associations?  Are we comfortable with the notion that efficient justice hinders the growth of private dispute resolution?  And where is the “real” “brave new world” — the one in which conflicts are identified early, just as smoke is identified in a building, and resources are brought to bear to extinguish them creatively before they destroy their surroundings?

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