The majority opinion in the Breslin case led me to write my piece, Courts Should Make Mediation Good Samaritans Not Frankensteins, which led the CPR Mediation Committee to sponsor a program, Consequences of Not Participating in Court Ordered Mediation:  What Is Fair?  I was one of the speakers, along with Lauren A. Jones, ADR Coordinator for New York City’s Surrogates Courts, and Robyn Weinstein, ADR Administrator at the United States District Court of the Eastern District of New York.  I provided an overview of issues using this powerpoint.

I wrote this article growing out of the lively discussion in that program.  Participation in mediation involves a lot more than just showing up, and this article describes important issues related to participation.  It describes two different perspectives about court-connected mediation and suggests an intermediate approach that integrates merits of both perspectives.

One perspective focuses on the fundamental principle that parties should make decisions in mediation voluntarily, without inappropriate pressure.  The other perspective, which I call a “liti-mediation perspective,” is grounded in a concern that without court orders, some parties lose valuable opportunities to mediate, and courts spend their limited resources on cases that would appropriately be resolved in mediation.

For courts operating a mandatory mediation program, this article outlines some policies that should motivate parties and lawyers to gain the benefits of mediation while protecting parties’ rights to make their own decisions.  This intermediate approach is intended to make mediation attractive so that parties and lawyers believe that it satisfies their interests, reducing the need for courts to regulate the process.  It outlines possible approaches for educating parties and other stakeholders about mediation, setting the timing of mediation, protecting confidentiality, and promoting productive participation in mediation.

This article argues that the key to producing optimal results is using dispute system design techniques that engage all the stakeholder groups to develop policies that advance the interests of all stakeholders in mediation, with a priority on satisfying parties’ interests.  It relies on principles expressed in the National Standards for Court-Connected Mediation Programs and the ABA Section of Dispute Resolution’s Resolution on Good Faith Requirements for Mediators and Mediation Advocates in Court-Mandated Mediation Programs.

Take a look.