March 2004

Preserving Mediation's Greatest Attribute: Simplicity

by Fred R. Butterworth

These comments are not based on elaborate study, statistics, or scholarly research. They are based on personal observations.

As a form of maintaining civility, and keeping the sword in the scabbard, mediation has been with us for centuries. Families use it, churches use it, nations use it, and, most recently, lawyers have discovered it. Our courts have acknowledged the process as a useful method of clearing court calendars. Because of the nature of our legal system, with its universal feeling that every wrong must be corrected, the justice system suffers from a real case of overuse. Pressure on the justice system threatens the traditional methods of resolving disputes and legal issues in general.

Arbitration, in its various forms, has been one answer to the need for relief in the courts. Arbitration is itself a more traditional way of resolving legal matters: depositions, testimony under oath, other discovery, court rules, trial advocacy, winners and losers. The decision is made based on the facts and evidence presented in a hearing. Appeals are sometimes a part of this process. Arbitrators are mobile, and not subject to a crowded court calendar and the availability of judges or courtrooms. Lawyers can be more selective in the choice of an arbitrator, and cases are resolved more rapidly. Make no mistake though — arbitration is a part of the court system, its rules, and its foibles. We lawyers know that, and we prepare cases under the rigors of court rules. The advantages are numerous and account for the popularity of arbitration to resolve disputes.

So where does mediation fit into the scheme? Begin with the simple fact that mediation is not a traditional part of the legal system. As lawyers, we have historically done well without mediation as an important part of our means of resolving disputes and representing our clients. However, as I noted earlier, the legal community has come to place much greater emphasis on mediation and has more or less accepted the process as "ours." Mediation can be conducted almost anywhere. There's no need for a formal setting, no need for a particular format, no discovery, no testimony, no one under oath. All mediation needs is a valid dispute, people interested in resolving the dispute, and a neutral third party to direct these efforts. Mediation is at its most useful and compelling when it is simple, easy, time efficient, inexpensive, and prompt.

The threat to mediation — and I believe it to be a genuine one — is the legal profession's effort to make it just like the traditional methods of resolving disputes, a part of the complex legal system that gave rise to mediation's usefulness. In other words, we're in danger of "loving it to death" and making it so complicated and legalistic that it no longer serves its purpose. The list of do's and don'ts that now surround mediation is becoming very intimidating indeed — special ethics rules, conflicts of interest, suits against mediators, the demand for mediators to testify in court — the list goes on and on. While it is important to have guidelines to protect the neutrality and fairness that should be associated with practicing alternative dispute resolution, we should seek to reach these standards in a simple, commonsense way without smothering this wonderfully simple process of mediation.

I often attend meetings and seminars that are crammed with the do's and don'ts of mediation. Every conceivable complication, legal trap, and rule is explained. Presenting these materials at such gatherings has become a cottage industry. At one particular meeting, after attending several sessions and being overwhelmed, I began to feel concern over the future of mediation as a viable process. So I asked a question: "Whatever happened to the idea that mediation became popular because it was easy, quick, relatively inexpensive, and not hampered by all of the traditional trappings of trial and arbitration?" The answer? "The question is not relevant or germane. Let's move on."

I have written this as a cry in the wilderness and a warning. Mediation is a wonderful and successful way to resolve disputes. But I hope that we, the legal profession, will not make it impossible to use by encumbering it with so many legal obstacles that it loses its effectiveness. Please, let's keep it simple.

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Fred Butterworth has over 40 years of experience as a lawyer and 13 years of experience as an arbitrator, mediator, and special master. He is with JAMS (www.jamsadr.com) in Seattle.

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