The Role of Attorneys in ADR-Novel Approaches or More of the Same?

Article excerpt

The role of attorneys in ADRnovel approaches or more of the same? The Role of Attorneys in Court Ordered Mediations in North Carolina: The Pilot Phase, by Elizabeth Ellen Gordon. Edwin Mellin Press. 2009. 164 pages. $99.95.

Over the past two decades, state and federal courts have increasingly embraced the use of mediation in large civil cases. Mediation is often encouraged based on the arguments that it will provide benefits to the court and the public in terms of lower costs and speedier dispositions as well as increased satisfaction with the process. Intuitively, these arguments make sense, so the shifts have been made despite the lack of rigorous empirical evidence proving the validity of these assertions.

Ellen Gordon, in The Hole of Attorneys in Court Ordered Mediations in North Carolina, attempts to advance the understanding of the use of mediation in large civil cases by focusing on the "private interests behind and within a program of public reform" as manifested in North Carolina's Mediated Settlement Conference (MSC) pilot program, which ran from 1992-1995.1 Specifically, she focuses on the more narrow issues of "lawyers' involvement in the MSC program and the consequences for legal practice, the program, and the legal system."

Gordon begins by describing the values associated with the adversarial legal system and the ideology behind traditional mediation along with a brief history of the development of the MSC program. Her treatment of the background material is mainly a re-tread of what has previously been published and adds no new insights. In fact, disturbingly for a book published in 2009, the vast majority of her references are to works published in the 1980s, with only one reference to research published post 2000.

Those interested in institutionalization of mediation generally or the development of the North Carolina program specifically, will appreciate Gordon's documentation of how the MSC program came to be. This description will be particularly helpful to court acLministrators and bar leaders who are considering the establishment of similar programs. Gordon traces the beginnings of the program to the success of the community mediation programs and the early child custody and visitation mediation. Particularly useful is Gordon's inclusion of Herbert Jacob's analysis of "routine policy making" and how each of the factors he identified was significant in the development of the MSC program. She also recognizes Florida's early experimentation with court-ordered mediation of large civil cases and the impact this had on North Carolina. Unfortunately, once again, Gordon's failure to cite to anything post 2000 renders this section out of date, at best, and in some cases, completely inaccurate, particularly as it relates to Florida's program.

For example, on page 31, Gordon references a change to the Florida Rules of Civil Procedure that was instituted in 1990, while ignoring the much more significant change made in 2007 to the qualifications for mediators that removed the requirement for circuit certification that individuals be licensed attorneys or retired judges.2 Even more troubling is Gordon's assertion on pages 32-33 that the Florida rules "included a requirement that parties in a mediation negotiate in good faith." She provides no citation to this statement and she would be hard pressed to find one because there never was such a requirement in the Florida rules.

Impact on legal practice

Gordon is at her best when she describes the research she conducted on the MSC program, specifically focused on mediation's impact on legal practice. …