Academic journal article The Review of Litigation

Efficiency versus Party Empowerment-Against A Good-Faith Requirement in Mandatory Mediation

Academic journal article The Review of Litigation

Efficiency versus Party Empowerment-Against A Good-Faith Requirement in Mandatory Mediation

Article excerpt


The objective of this Article is to explore the effect that a good-faith requirement in mandatory mediation will have on the process of mediation in general, and especially on the balance between its objectives of efficiency and party empowerment.1 A good-faith requirement aims to increase the level of participation by parties and attorneys, moving mediation closer to the border between informal and formal processes for solving legal disputes. In this context, I will deal with the existence of mandatory mediation and the reasons behind parties' and attorneys' lack of participation therein.

A good-faith requirement overemphasizes the objective of efficiency and furthers the institutionalization of mediation. Besides posing terminological difficulties, the call for a good-faith requirement threatens (1) the distinction between mediation and litigation, (2) the objective of party empowerment, and (3) the future of mediation as an alternative to litigation. I will propose that courts simply encourage the participants to mediate in good faith as an alternative that avoids the dangers connected with imposing a good-faith requirement.

In 1997, Kimberlee K. Kovach2 issued an urgent call for action that aims at the behavior of participants in mandatory3 mediation:4

Whether called good faith, 'meaningful participation,' or another similar term, some action to require a specific conduct conducive to the mediation process must be required. Whether by court rule, legislation, or a code of ethics, such an obligation should be constructed and implemented immediately. And the duty of good faith should extend to the parties as well as to their attorney representatives.5

Since then, the theoretical dispute6 about a good-faith requirement in mandatory mediation for general civil cases has been occurring.7 Some states have enacted good-faith requirements for these cases.8 In other states, in the absence of statutorial regulations, courts have held that their power to refer cases to mediation is not enough to force parties and attorneys to participate in good faith.9 The existence of the debate about institutionalizing good-faith requirements10 indicates that parties and attorneys in mandatory mediation somehow fail to behave according to the objectives of mediation as they are seen by the courts.11


Understanding the objectives of mediation in the context of the American legal system requires looking into the development of mediation in the United States.12 Since the mid-1970s, the debate has focused on the conflicting objectives of party-empowerment. These objectives are not necessarily consistent. That is why the question as to which is the prevailing objective must be examined in light of mandatory mediation and the call for a good-faith requirement in mediation.

A. Party-Empowerment

Contemporary mediation in the United States started out as part of the Alternative Dispute Resolution movement in the 1970s, and it focused on dispute resolution inside communities.13 In this context, the motivation behind mediation was to strengthen the mediation participants' self-determination in a dispute by heavily borrowing from the idea of party-empowerment.14 The mediation movement's original vision of self-determination saw the disputing parties as principal actors within the mediation process.15 The parties were supposed to "1) actively and directly participate in the communication and negotiation that occurs during mediation, 2) choose and control the substantive norms to guide their decision-making, 3) create the options for settlement, and 4) control the final decision regarding whether or not to settle."16 The mediator's role was to facilitate communication, not to judge the behavior of the parties.17 Facilitating communication between the parties made formal pretrial procedures unnecessary, and the mediator could adapt the mediation proceedings to the participants' needs. …

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