John Lande

Using Dispute Resolution System Design Methods to Promote Good Faith Participation in Court-Connected Mediation Programs

What can be done to prevent people from behaving badly in mediation? Rather than using mediation to try to reach a settlement in good faith, some people use mediation to make misleading statements, smoke the other side out, gain leverage for later negotiations, drag out litigation, increase the opponents' costs, and generally wear down the opposition. Bad-faith tactics can demoralize parties by purposely wasting time and money of parties less able to afford litigation. People can do this while using mediation jargon and creating phony issues to appear sincerely interested in settling the case.

Although these tactics do not represent the approach of most mediation participants, there may be enough people who abuse mediation to constitute a significant problem. Legislatures and courts have adopted rules requiring good faith in mediation and courts have sanctioned violators. These rules are premised on assumptions that mediation participants would readily understand what behavior is required and would respond appropriately.

These assumptions are problematic as good-faith requirements are likely to be ineffective and possibly counterproductive in assuring the integrity of court-connected mediation programs. The concept of good faith is confusing, ambiguous, and difficult to prove, contrary to suggestions that people know it when they see it.

A good-faith requirement may not produce the desired deterrent effect and may actually encourage inappropriate conduct. It can stimulate satellite litigation over allegations of bad faith. Enforcement of the requirement would require a major exception to confidentiality of mediation communications.

Although such a requirement could deter and punish truly egregious behavior in a few cases, it could do so at the expense of overall confidence in the system of mediation. Using Professor Leonard Riskin's
metaphor, Lande argues that a goodfaith sanctions regime would raise a fist when policymakers first should consider policies that extend a hand.

The article proposes two types of alternative strategies for protecting the integrity of mediation programs. One type of strategy involves specific policies that satisfy stakeholders' interests in courtconnected mediation programs. These could include collaborative education about good mediation practice, use of pre-mediation consultations and submission of documents, a narrow requirement of attendance for a limited and specified time, and protections against misrepresentation.

The second strategy uses dispute system design (DSD) principles to develop policies for court-connected mediation programs. In a DSD process, representatives of all the stakeholder groups that have an interest in a local mediation program would participate in developing policies. A DSD approach could examine whether recurring problems of bad faith are symptoms of underlying problems and, if so, develop policies to address those problems as well as the immediate symptoms. Thus a DSD
process could also help tailor programs to satisfy stakeholders' interests generally, reduce motivation for problematic behavior, and improve other aspects of the programs. The article recommends that good-faith requirements should not be adopted except as a last resort, i.e., after a court uses a DSD process, seriously tries other policy options, and finds that those options do not effectively resolve significant problems of bad faith.

Although these proposals are not a panacea for assuring the integrity of court-connected mediation programs, if faithfully implemented, they will enhance the integrity of these programs and satisfy the interests of the stakeholder groups consistent with the norms and spirit of mediation.

John Lande is an associate professor of law at MU and director of the LL.M. Program in Dispute Resolution

This is an abstract of Prof. John Lande's recent article appearing in 50 UCLA LAW REVIEW 69 (2002)