Enforcing Rights Generated in Court-Connected Mediation - Tension Between the Aspirations of a Private Facilitative Process and the Reality of Public Adversarial Justice

Abstract

This article advances the thesis that the number of recent cases and the nature of the claims by parties complaining about their experiences in court-connected mediations suggest that it is time to reassess the courts’ role in supervising and regulating the mediation processes that judges have incorporated into the pre-trial process. The dissonance between the mediation community’s aspirational goals for a conciliatory process and the judicial system’s singular focus on settling cases has not assured a fair process. The courts’ reluctance to supervise the mediation process, for fear that it will become less efficient in getting rid of cases, creates a virtually unregulated enclave of adversarial activity within a process loosely defined as conciliatory and facilitative. This dissonance can create, and has created, both confusion and an unfair process. This article covers the following areas: enforcing mediated settlement agreements, judicial approach, legislative response, commentators on flexible contract principles mixed with bright-line rules, imposing rigid bright-line rules to a process premised on self-determination, tension between contract principles and mediation’s goals, and regulation of the process.

Keywords: Court-connected mediation, mediation, conciliatory, alterative dispute resolution

JEL Classification: J52, K00, K4, K41