[*] Assistant Professor, Department of Dispute Resolution, Nova Southeastern University. A.B., University of Michigan, 1974; Ph.D., University of Wisconsin-Madison, 1995; J.D., Hastings College of Law, 1980. I am enormously grateful to Bob Barrett, Jim Boskey, Baruch Bush, Aimee Delman, Greg Firestone, Janice Fleischer, Bill Howard, Jon Hyman, Ron Kelly, Lela Love, Mike Lowy, David Matz, Bobbi McAdoo, Craig McEwen, Rick Reed, Len Riskin, Nancy Rogers, Jean Sternlight, Fran Tetunic, Bill Warters, and Archie Zariski for their encouragement and very helpful comments, and to Aimee Delman for her diligent research assistance. I dedicate this Article to Marc Galanter, who has been a kind mentor and has provided a wonderful model of scholarship. Of course, I take responsibility for what follows, so don't blame these good people. Return to text.

[1] In general, mediation is a procedure in which the mediator tries to help disputing parties reach agreement and in which the mediator has little or no authority to impose a decision if the parties do not reach agreement. See CHRISTOPHER W. MOORE, THE MEDIATION PROCESS: PRACTICAL STRATEGIES FOR RESOLVING CONFLICT 8, 41-53 (2d ed. 1996). Practitioners and empirical researchers differ about many characteristics claimed to be essential to mediation, such as the goals of the mediation. See infra Part II.B. The definition in this footnote represents minimal characteristics that I believe most knowledgeable observers would accept. Return to text.

[2] Good data on use of mediation is hard to come by. Unlike the courts, where there is a clerk's office through which all lawsuits must flow, there is no central registry of mediation cases. Indeed, even in states like Florida, where there is a well-organized statewide system for providing mediation, it is impossible to get a full and accurate count. In Florida, at least 76,920 mediations were conducted in 1995. See SARAH SCHULTZ ET AL., FLORIDA MEDIATION/ARBITRATION PROGRAMS: A COMPENDIUM 26, 52, 79, 102 (9th ed. 1996). This figure understates the actual number of cases because data was not available from courts without coordinators of mediation services. See id. at v; see also Sharon Press, Institutionalization: Savior or Saboteur of Mediation?, 24 FLA. ST. U. L. REV. 903, 907 n.18 (1997).

The RAND Corporation made perhaps the best effort to count private alternative dispute resolution (ADR) cases by surveying ADR providers in Los Angeles about caseloads during the period of 1988-93. See ELIZABETH ROLPH ET AL., INSTITUTE FOR CIVIL JUSTICE, ESCAPING THE COURTHOUSE: PRIVATE ALTERNATIVE DISPUTE RESOLUTION IN LOS ANGELES 18, 19 (1994). The RAND researchers found that the annual rate of growth of caseloads increased dramatically during this period, from about 15% in 1989 to 90% in 1993. See id. at 19 fig.3.1. Because some providers in the earlier years were not available to respond to the study, the figures for the earlier years actually understate the rate of growth. See id. at 19 n.3. In 1993, there were at least 23,672 private ADR cases in Los Angeles (including procedures other than mediation). See id. at 18 tbl.3.1. Return to text.

[3] See NANCY H. ROGERS & CRAIG A. MCEWEN, MEDIATION: LAW, POLICY, PRACTICE app. B (2d ed. 1994 & Supp. 1996) (providing a state-by-state listing of significant mediation legislation). Although many points in this Article would apply to ADR procedures generally, this Article focuses on mediation because it is the quintessential third-party procedure for eliciting agreement and because of its widespread and generic applicability. Return to text.

[4] To avoid confusion, this Article uses the word "lawyers" to refer to lawyers only when they act as representatives. The word "mediators" refers to people who act as third parties assisting in negotiation, regardless of the mediators' profession of origin. This distinction is important because many lawyers act as mediators as part of their practices. The term "lawyer-mediator" is reserved for lawyers when they are acting as mediators. Return to text.

[5] In Florida, the courts may order cases to mediation. See FLA R. CIV. P. 1.700(a). Within 10 days after a court-ordered referral to mediation, the parties may select their own mediator. See FLA. R. CIV. P. 1.720(f). The Florida Dispute Resolution Center reports that more than 90% of parties ordered to mediation agree on a mediator rather than having one assigned by the court. See SCHULTZ ET AL., supra note 2, at v. There are no statistics describing the number of cases in Florida in which the participants choose mediation without first having been ordered to mediation. See Interview with Sharon Press, Director, Fla. Disp. Resol. Ctr., in Fort Lauderdale, Fla. (Oct. 10, 1996). Return to text.

[6] See Barbara McAdoo & Nancy Welsh, The Times They Are a Changin'—Or Are They? An Update on Rule 114, HENNEPIN LAW., July-Aug. 1996, at 8, 10. In Hennepin County, Minnesota, lawyers view Minnesota Supreme Court Rule 114 as mandating use of ADR, usually mediation. A preliminary study based on 12 in-depth interviews with Hennepin County lawyers found that as a result of Rule 114, "[t]here may be less lawyer-to-lawyer negotiation" as lawyers prefer to "wait for a 'mandatory' mediator's assistance with settlement." Id. at 10; see also Press, supra note 2, at 908 (noting that Florida lawyers are increasingly requesting mediation without waiting to be ordered to mediate). Return to text.

[7] See Jay Folberg et al., Use of ADR in California Courts: Findings & Proposals, 26 U.S.F. L. REV. 343, 346, 409-10 (1992). Finding that California courts are now faced with a greater number of cases and more complex cases than ever before, the authors made recommendations that included the development of an "ADR track" for some cases. Id. at 397; see also id. at 409-10. Return to text.

[8] See infra Part II.A. Mike Bridenback, the first director of the Dispute Resolution Center and current trial court administrator for Florida's Thirteenth Judicial Circuit, emphasized this view: "Mediation, in just ten short years, is not an alternative but the primary system of justice in Florida's civil and family courts." Announcement for the Florida Dispute Resolution Center's Annual Conference for Mediators & Arbitrators (1996) (on file with author). Liti-mediation culture is likely to vary in different communities. See infra note 23 and accompanying text. Thus, references to liti-mediation cultures refer to the various situations in different areas rather than a single, homogeneous, national liti-mediation culture. For example, my research suggests that different states have stronger and weaker "mediation cultures." I asked six experts on dispute resolution to rate the strength of the ADR cultures of 19 states and found that their ratings were highly correlated with each other and with the existence of certain types of statutes. See John Lande, The Diffusion of a Process Pluralist Ideology of Disputing: Factors Affecting Opinions of Business Lawyers and Executives 48-53 (1995) (unpublished Ph.D. dissertation, University of Wisconsin (Madison)) (on file with author). A survey of business lawyers and executives in several states revealed that there was greater support for use of mediation in Florida (identified by the experts as a strong ADR-culture state) than in Tennessee and Pennsylvania (identified as weak ADR-culture states). There were no comparable differences in support for arbitration, suggesting that these attitudes related more specifically to mediation than ADR generally. See id. at 177-83, 197-201. Although this suggests that there is significant variation between states, there is obviously considerable variation within states as well. Return to text.

[9] See Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOTIATION L. REV. 7 (1996). Professor Riskin's framework has attracted a good deal of attention. Teachers and trainers have incorporated his framework into their presentations, and practitioners have used it to explain their version of mediation to potential clients. See id. at 49 n.125. At the 1996 Annual Conference for Mediators and Arbitrators, sponsored by the Florida Dispute Resolution Center, a major plenary session was entitled "Evaluative v. Facilitative Mediation: Current Ethical and Policy Considerations." See James J. Alfini, Moderator, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997). Similarly, in September 1996, the Association of Broward County (Florida) Mediators sponsored a program entitled, "A Great Debate: Facilitative v. Evaluative Mediation," featuring Mel Rubin and Arthur "Jim" Parkhurst. Professors Barbara McAdoo and Jeffrey Krivis are now developing a self-assessment questionnaire for mediators to identify their orientation within Riskin's framework. See Barbara McAdoo & Jeffrey Krivis, Mediator Classification Index (unpublished manuscript, on file with the author). For a critique of Riskin's framework, see Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, 14 ALTERNATIVES TO HIGH COST LITIG. 31, 32 (1996), and for a response, see John Bickerman, Evaluative Mediator Responds, 14 ALTERNATIVES TO HIGH COST LITIG. 70 (1996). For a collection of sources on this topic, see Jeffrey W. Stempel, Beyond Formalism and False Dichotomies: The Need for Institutionalizing a Flexible Concept of the Mediator's Role, 24 FLA. ST. U. L. REV. 949, 953 n.7 (1997). Return to text.

[10] The clearest and strongest expression of the empowerment ideal is in ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994). The Bush and Folger model of transformation was the focus of a lively discussion at a session of the ADR Section at the 1996 Annual Meeting of the Association of American Law Schools (Models of Mediation, Jan. 7, 1996). The subject of transformation was also highlighted at a popular session at the 1996 Annual Meeting of the Society for Professionals in Dispute Resolution entitled, "Transformation of What? The Meaning of Conflict Transformation" (Oct. 24, 1996). For two critical reviews of The Promise of Mediation, see Carrie Menkel-Meadow, The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices, 11 NEGOTIATION J. 217, 235-39 (1995), and James Boskey, Books in Review, ALTERNATIVE NEWSL., March 1995, at 22-23. For a detailed discussion of issues of empowerment, see infra Parts III.A and III.C. Return to text.

[11] In keeping with the emphasis on promotion of responsibility by the parties in a conflict who have retained lawyers and/or mediators, the parties are generally referred to as the "principals" because "clients" has a connotation of dependence on and deference to others' judgments. Although parties are not principals of mediators in the sense of a legal principal-agent relationship, the term is used in the sense of the parties being the principal decisionmakers. See BLACK'S LAW DICTIONARY 1192 (6th ed. 1990) (defining the adjective "principal" as meaning "[c]hief; leading; most important or considerable; primary; original" and "[h]ighest in rank, authority, character, importance, or degree"); see also infra Parts III.A, III.C; cf. Stempel, supra note 9, at 965-66 n.53 (criticizing reference to disputing parties as mediator's "clients" or "principals"). I am grateful to Berkeley, California, mediator Ron Kelly for suggesting use of the term "principal." For convenience, I use the term "participants" to collectively refer to the principals and their lawyers in mediation, but not the mediator. Return to text.

[12] The notion of evaluating dispute resolution by standards of quality is not original to me. Professor Carrie Menkel-Meadow, in particular, has made this a central theme in her work. See generally Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases), 83 GEO. L.J. 2663 (1995) [hereinafter Menkel-Meadow, Whose Dispute Is It Anyway?]; Carrie Menkel-Meadow, Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or "The Law of ADR", 19 FLA. ST. U. L. REV. 1 (1991) [hereinafter Menkel-Meadow, Pursuing Settlement in an Adversary Culture]; Carrie Menkel-Meadow, For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference, 33 UCLA L. REV. 485 (1985); Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984) [hereinafter Menkel-Meadow, Toward Another View of Legal Negotiation]; see also generally Symposium, Quality of Dispute Resolution, 66 DENV. U. L. REV. 335 (1989). Return to text.

[13] See Deborah M. Kolb & Kenneth Kressel, Conclusion: The Realities of Making Talk Work, in WHEN TALK WORKS: PROFILES OF MEDIATORS 459, 459-60 (Deborah M. Kolb ed., 1994). Return to text.

[14] See generally BUSH & FOLGER, supra note 10; ROGER FISHER ET AL., GETTING TO YES (2d ed. 1991); MOORE, supra note 1; Menkel-Meadow, Whose Dispute Is It Anyway?, supra note 12. Return to text.

[15] Institutionalization processes have been analyzed in a variety of disciplines and using a variety of definitions. Though popular conceptions often focus on institutions as organizational structures, most scholarly analyses are much broader and include generally recognized norms, roles, and conventions. Thus, institutions may range "from handshakes to marriages to strategic-planning departments" and may cover "a wide territorial range, from understandings within a single family to myths of rationality and progress in the world system." Paul J. DiMaggio & Walter W. Powell, Introduction to THE NEW INSTITUTIONALISM IN ORGANIZATIONAL ANALYSIS 1, 7-9 (Walter W. Powell & Paul J. DiMaggio eds., 1991). For an analysis of the institutionalization of ADR in the United States in recent decades, see Lande, supra note 8. Return to text.

[16] Professor Jeffrey Stempel suggests that the 1976 Pound Conference is an appropriate point to mark the beginning of the modern ADR movement. Stempel argues that "new ADR" is more likely than "old ADR" to involve, among other things, mass-produced procedures affecting large classes of persons or entities. See Jeffrey W. Stempel, Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?, 11 OHIO ST. J. ON DISP. RESOL. 297, 309-24, 334-40 (1996). Return to text.

[17] For example, when Henry Elson began mediating in 1971, he referred to his work as "nonadversarial law practice." Henry M. Elson, Divorce Mediation in a Law Office Setting, in DIVORCE MEDIATION: THEORY AND PRACTICE 143, 143-44 (Jay Folberg & Ann Milne eds., 1988). Return to text.

[18] See ROGERS & MCEWEN, supra note 3, apps. A-C (providing a comprehensive summary of mediation legislation). Return to text.

[19] See, e.g., Lande, supra note 8, at 133-76; Morris L. Medley & James A. Schellenberg, Attitudes of Attorneys Toward Mediation, 12 MEDIATION Q. 185, 189-92 (1994); DELOITTE & TOUCHE LITIG. SERVS., 1993 SURVEY OF GENERAL AND OUTSIDE COUNSEL 10-15 (1993); see also Folberg et al., supra note 7, at 365 (finding that judges familiar with ADR had high praise for ADR processes, especially mediation). Return to text.

[20] See Robert Kagan, Do Lawyers Cause Adversarial Legalism? A Preliminary Inquiry, 19 L. & SOC. INQUIRY 1 passim (1994) (observing that the U.S. legal system relies on litigant activism in which investigation and presentation of claims is based on initiative of disputing parties acting primarily through lawyers). Return to text.

[21] See McAdoo and Welsh, supra note 6, at 10. Return to text.

[22] Galanter used the term "litigotiation" to refer to the strategic pursuit of settlement through mobilizing the court process. Thus, lawyers, and to some extent principals, pursue litigation with the private expectation of ultimately reaching settlement, but use the litigation process to gain strategic advantage in negotiation. See Marc Galanter, Worlds of Deals: Using Negotiation to Teach About Legal Process, 34 J. LEGAL EDUC. 268, 268 (1984). Return to text.

[23] As with litigotiation, in a "liti-mediation" culture, the initiation and conduct of litigation are oriented to obtaining favorable settlements, usually defined in adversarial terms. The two regimes differ in the cultural stories and practices typical of bilateral and mediated negotiations. For example, in typical litigotiation culture, lawyers work to create strong cases for trial and then engage in a ritual pretense of being reluctant to negotiate out of fear of losing advantage by appearing weak. While liti-mediation culture may not differ radically from that typical of litigotiation, there are certainly some differences. The existence of a formal and (quasi-) mandatory mediation procedure probably provides greater legitimacy of resolution through settlement. Moreover, mediation, especially with directive techniques, see infra note 40, provides a generally accepted mechanism for lawyers to settle while maintaining the appearance of strength for the "benefit" of clients and opposing parties alike. See Craig A. McEwen et al., Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317, 1369-70 (1995). As one reviewer suggested, lawyers may take strong positions for a variety of reasons, including protecting the clients' interests and solving the lawyers' problems in managing relationships with their clients, or some combination. Return to text.

[24] I am grateful to Marc Galanter for suggesting the concept of the "heartland" of litigation. Return to text.

[25] For an excellent analysis of these and other factors leading to increased litigation, see MARC GALANTER & JOEL ROGERS, A TRANSFORMATION OF AMERICAN BUSINESS DISPUTING? SOME PRELIMINARY OBSERVATIONS 41-47 (Inst. for Legal Stud., Disp. Processing Res. Program Working Paper No. 10-3, 1991). Return to text.

[26] For example, nine of Florida's 20 judicial circuits have more than 200 certified mediators, with the most (441) working in the 11th Circuit, covering Dade County (Miami). See Florida Certified Mediators, RESOL. REP., July 1996, at 7. Return to text.

[27] See, e.g., Program Brochure, "The Business of Mediation: A Series of Seminars for Anyone Who Has Considered Making Mediation a Career!" (1993) (on file with author). This program, sponsored by the Southern California Mediation Association, spanned three Saturday mornings in 1993-94. See id. Return to text.

[28] Although many mediators operate as sole practitioners, largely trading on their personal skills and experiences, there is a major institutional sector of organizations in which the buyers do not necessarily select individual mediators but rather purchase a package of services including case administration as well as mediation. On a national level, some of the best known organizations include the American Arbitration Association, JAMS/Endispute, and Judicate. There are also local and regional providers of mediation services. For example, Mediation, Inc. and Florida Mediation Group serve a substantial share of the South Florida market. Return to text.

[29] See, e.g., ERIC GALTON, REPRESENTING CLIENTS IN MEDIATION 8-24 (1994). Return to text.

[30] See Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 L. & SOC'Y REV. 95, 97-104 (1974); cf. Mark Suchman, On Advice of Counsel: Law Firms and Venture Capital Funds as Information Intermediaries in the Structuration of Silicon Valley 95-126 (1994) (unpublished Ph.D. dissertation, Stanford University) (on file with author) (observing that, in Silicon Valley, business lawyers' repeated experience of structuring start-up companies and matching them with venture capital funds enables lawyers to provide valuable advice). Return to text.

[31] The geographical scope of practice communities varies. Many lawyers and mediators practice only within a limited area around their offices. Others have regional, national, and transnational practices. Thus, references to practice communities relate to the group of colleagues and clients to which practitioners regularly relate, rather than to a local geographic area. Return to text.

[32] As Florida mediator Janice Fleischer pointed out, although lawyers are generally in a better position to evaluate mediators because of their greater experience, they may not make better selections of mediators in some cases because lawyers and their clients often have different interests. See Telephone Interview with Janice Fleischer, Coordinator, S. Fla. Off., Fla. Conflict Resol. Consortium (Oct. 26, 1996); see also infra note 174 (discussing differences in interests between attorneys and their clients). Return to text.

[33] This is an interesting and important question that deserves empirical research. I offer some hypotheses about the shopping process in this subpart. See Riskin, supra note 9, at 38-39 (discussing the mediator selection process). Return to text.

[34] As the practice of mediation has grown in recent years, mediators can now claim to have mediated many hundreds, and even thousands, of cases. I have attended numerous events where mediators introduced themselves by saying that they have mediated more than 1000, 2000, and even 5000 cases. Return to text.

[35] Certification of mediators has become a big business. Individual and organizational trainers are constantly offering training programs that often provide "graduates" with certificates suitable for framing and citing as credentials. The most recent Alternative Newsletter published by Professor James Boskey lists 58 organizations in the United States that offer training in ADR skills. Many of these organizations offer multiple trainings over the course of a year. See Training in ADR Skills, ALTERNATIVE NEWSL., July 1996, at 12-19. Based on the level of practitioner experience, professional organizations like the Society of Professionals in Dispute Resolution offer stratified membership categories that can be used to create market distinctions. See Soc'y of Profs. in Disp. Resol., Application for Membership (1995) (on file with author). In Florida, the state government has gotten into the certification business to the extent that mediators who satisfy the legal requirements routinely advertise that they have been "certified by the [Florida] [S]upreme [C]ourt." FLA. R. CERT. & CT.- APPTD. MEDIATORS 10.010(a)(1), (b)(1), (c)(1) (1996). Recently, a growing number of universities have joined the training and certification market. For example, my dispute resolution program at Nova Southeastern University is one of at least 16 university programs in the United States that offer graduate certificates (typically involving at least ten credits of course work), 10 that offer masters degrees, and two that offer doctoral degrees. See Bill Warters, Mapping the Contours of Graduate Study in Dispute Resolution, (unpublished materials produced for a national symposium conducted in Fort Lauderdale, Fla., on March 22-24, 1996) (on file with author). Return to text.

[36] Some mediators and mediation organizations showcase mediators' prior judicial experience as a prime selling point. Indeed, the Wall Street Journal recently profiled the competition between ADR firms in recruiting former judges with "marquee power" such as a former chief justice of the California Supreme Court. Margaret A. Jacobs, Renting Justice: Retired Judges Seize Rising Role in Settling Disputes in California, WALL ST. J., July 26, 1996, at A1. An official in one ADR company compared his firm with a merchandiser, saying, "[j]udges are like our inventory." Id. Judicial experience is likely to be especially valued by buyers seeking mediators with an "evaluative" style or settlement-orientation. See infra note 40. Return to text.

[37] I am grateful to Palo Alto, California, mediator Althea Lee Jordan for suggesting the preceding buying criteria in this paragraph. Return to text.

[38] I am grateful to Palo Alto, California, mediator Michael J. Lowy for suggesting this criterion. Return to text.

[39] In daily life, people often use informal categories that reflect and affect their behavior. For example, Professors Lynn Mather, Richard Maiman, and Craig McEwen found that New Hampshire divorce lawyers use a variety of characterizations of their colleagues that presumably describe and affect the behavior of divorce lawyers and those with whom they deal. The categorizations include "reasonable," "client-driven," "papering" (i.e., engage in excessive discovery and motion practice), "just a business" (i.e., uncommitted to their clients' interests), "incompetent," "cause," "conflict-escalating" lawyers, "sleepers," and "snakes." Lynn Mather et al., Negotiating a Divorce: Differences Among Lawyers 8, 10, 13-14, 19-21 (June 1991) (paper presented at the Annual Meeting of the Law and Society Association). Return to text.

[40] Mediators using a facilitative style focus on eliciting the principals' own opinions and refrain from pressing their own opinions about preferable settlement options. See Riskin, supra note 9, at 24. Mediators using an evaluative style develop their own opinions about preferable settlement options and may try to influence principals to accept them. See id. at 23-24. I believe that the term "evaluative" often refers to the level of directiveness or coercion that a mediator employs to reach a particular agreement or any agreement, at least at the extreme end of the continuum. Thus, in this Article, I generally use the term "directive" in place of "evaluative."

Like most of the distinctions in this field, it is more useful to think of this as a continuum rather than a discrete dichotomy. Presumably most mediators' styles would fall somewhere between the two extremes, and the question would be where a mediator's style is located on this continuum. The importance of conceptualizing this as a continuum is reflected by the fact that a mediator makes multiple interventions in any given case, each of which might be classified differently. Thus, to identify a mediator's "true" style would require some aggregation of multiple interventions and should somehow weigh the varying degrees that each intervention is facilitative or directive and take into account differing situational contexts. See Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985, 989 (1997). This suggests that it is probably impossible to create a truly valid measure of this dimension. This need not, however, prevent theorists and participants in the mediation market from finding the concept useful. See id. at 1004-05; cf. Stempel, supra note 9, at 952 n.9, 969-70 (criticizing use of bipolar and continuum models as creating false dichotomies but recognizing their value for purpose of discussion and analysis) Return to text.

[41] I am grateful to Berkeley, California, mediator Ron Kelly for relating an experience in which a principal in a mediation referred to the third party as "Attila the mediator." Return to text.

[42] Dean James Alfini used the evocative terms "hashers," "bashers," or "trashers," which I believe refer to the facilitative-directive distinction. See James J. Alfini, Trashing, Bashing, and Hashing It Out: Is This the End of "Good Mediation"?, 19 FLA. ST. U. L. REV. 47, 66-73 (1991). "Hashers" tend to encourage the parties to communicate directly with each other and are willing to let the principals end the process without agreement. See id. at 71. "Trashers" work primarily in caucus, pressing to reach agreement by criticizing the merits of each side's case. See id. at 66-67. "Bashers" focus primarily on criticizing each side's position in a "mad dash for the middle." Id. at 70. Return to text.

[43] See, e.g., MOORE, supra note 1, at 327-33. Return to text.

[44] See, e.g., Stempel, supra note 9, at 973-75. One Florida mediator with a facilitative philosophy told me that lawyers frequently pressed her to tell the principals "how much the case is worth" and were quite frustrated when she would not do so. Return to text.

[45] My experience has been that academics are often especially passionate proponents of facilitative approaches and criticize directive approaches, whereas lawyers and mediators who practice law and mediation for a living often have the opposite passions. However, there are many in each group who do not fit this generalization. The unflattering characterizations clearly rankle theorists and practitioners committed to the differing views. For example, two reviewers who strongly identify with a facilitative approach expressed concern about including in this Article pejorative references to that approach using such terms such as "weak," which they believe is an inaccurate portrayal. On the other hand, a reviewer with an evaluative approach complained about descriptions of mediators' evaluative settlement efforts as being like portrayals of a night with a prostitute. Though I agree that these are often misleading characterizations, the fact that these epithets are widely used—and touch sensitive nerves—says a lot about the current state of the field. See generally infra Part II.C. Return to text.

[46] See Robert A. Baruch Bush, Ethical Dilemmas in Mediation 17-18 (1989) (unpublished manuscript, on file with author). Bush notes that mediators often aspire to several or all of the goals, but that the goals sometimes conflict and the mediators must then choose between them. See id. at 15-17. Even when the goals do not conflict, many mediators unambiguously favor some goals over others. Nonetheless, the typology necessarily oversimplifies mediator motivation and behavior to some extent. Although in practice there are probably few, if any, mediators who perfectly embody the pure types such as settlors and empowerors, these labels do reflect some basic differences and will be used for convenience.

In The Promise of Mediation, Bush presents a somewhat different typology of mediators' goals. See BUSH & FOLGER, supra note 10, at 15-32. I refer to the goals from Bush's earlier manuscript because they better capture the distinctions between the goals, as described below. See infra note 54. Bush's descriptions of the five roles are fairly brief. The descriptions in this Article include my own elaborations of Bush's typology. Return to text.

[47] See Bush, supra note 46, at 17-18. Return to text.

[48] Id. at 17. Return to text.

[49] In a positional (or adversarial) approach, each participant sets extreme aspiration levels and makes a series of strategic offers intended to result in a resolution as close as possible to that person's initial aspiration. See FISHER ET AL., supra note 14, at 4-7. A problem-solving approach involves a joint identification and selection of options maximizing the interests of all principals. See id. at 40-80; see also Riskin, supra note 9, at 13-16 (citing sources and noting variety of terms used to distinguish problem-solving and positional approaches). Return to text.

[50] Critics are concerned that settlors may be more interested in getting "another notch on their belts" than in the substantive quality of the mediated resolution. See Frank E.A. Sander, The Obsession with Settlement Rates, 11 NEGOTIATION J. 329, 329-31 (1995). Return to text.

[51] See Bush, supra note 46, at 17. Return to text.

[52] Id. Return to text.

[53] See id. Return to text.

[54] In his subsequent book with Joseph Folger, Bush uses the more widely used term "problem-solving" (which I prefer), referring to the goals of fixers. Bush and Folger also describe this orientation as "directive, settlement-oriented," which lumps together two approaches that often do not go together. BUSH & FOLGER, supra note 10, at 12. Return to text.

[55] See Bush, supra note 46, at 17-18. Return to text.

[56] Id. Return to text.

[57] Id. at 18. This is similar to Bush and Folger's concept of recognition. See BUSH & FOLGER, supra, note 10, at 2. Return to text.

[58] Bush, supra note 46, at 18. Return to text.

[59] Id. Return to text.

[60] Lawyers often say things such as that they hope the mediator will help them (the lawyers) when they have a "hard sell" with recalcitrant clients. See McEwen et al., supra note 23, at 1370. To that extent, lawyers may want a mediation to promote self-reflection. However, in such situations, the lawyers really want to reduce the principals' control and lower their expectations, not increase their self-determination. Return to text.

[61] Professor Paul DiMaggio argues that the success of an institutionalization project is usually premised on certain types of conceptualizations that institutional entrepreneurs advance:

Unless [legitimating conceptualizations] are enacted by an organizational system that segments labor markets, evokes consumer (or state) demand, manufactures new areas of expertise, and classifies new products and services as qualitatively different from old ones, newly institutionalized forms will be highly unstable in their structures, public theories, and programs.
. . . Recruiting or creating an environment that can enact their claims is the central task that institutional entrepreneurs face in carrying out a successful institutionalization project. Paul J. DiMaggio, Interest and Agency in Institutional Theory, in INSTITUTIONAL PATTERNS AND ORGANIZATIONS: CULTURE AND ENVIRONMENT 3, 15 (Lynne G. Zucker ed., 1988) (citations omitted). Return to text.

[62] Ann Swidler, Culture in Action: Symbols and Strategies, 51 AMER. SOC. REV. 273, 279 (1986). Return to text.

[63] See id. at 279-81. Return to text.

[64] See BUSH & FOLGER, supra note 10, at 12. Bush and Folger make this contest quite explicit, arguing that the mediation movement is now at a "crossroads" where the mediation community must decide between a settlement-oriented, problem-solving approach and a transformative approach as the primary strategy for mediation. Id. The intense reaction to their book, pro and con, suggests that they have indeed "touched a nerve" and that the "correct" resolution of this matter is anything but taken for granted in the mediation community generally. See supra note 10. Return to text.

[65] Others have also used the term "pluralist" in this context. See, e.g., Menkel-Meadow, supra note 10, at 236. For other descriptions of pluralist philosophies, see Stempel, supra note 9, at 950 (favoring an "eclectic model"); MOORE, supra note 1, at 53-55 (opposing "narrow" definition of mediation); Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. (forthcoming 1997) (distinguishing whether theorists favor pure "bright line" definition of mediation or not); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1. I have used a related concept of "process pluralism," referring to acceptance of the legitimacy of a variety of third-party ADR procedures See Lande, supra note 8, at 7-8. This is in contrast to legal centralism, which holds that the courts, the law, and lawyers are and should be the primary means for handling disputes involving legal issues. See id. Return to text.

[66] McEwen et al., supra note 23, at 1392. Return to text.

[67] See Alfini, supra note 42, at 47. Return to text.

[68] See supra text accompanying notes 41-42. The fact that many of my dispute resolution students who have little or no professional mediation experience have very strong convictions about the "right" and "wrong" approaches is further evidence that these differences run deep. Return to text.

[69] Kovach & Love, supra note 9, at 32; see also Bush, supra note 46, at 20. Return to text.

[70] This is often expressed by mediators holding facilitative and empowerment philosophies who believe that directive and settlor approaches should be called "mediation-arbitration" (often referred to as "med-arb"), "nonbinding arbitration," "neutral case evaluation," or "private settlement conferencing." See, e.g., Kovach & Love, supra note 9, at 32; Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937, 948 (1997). Return to text.

[71] Substantively, this is somewhat similar to what Bush and Folger refer to as an "empowerment" approach. See BUSH & FOLGER, supra note 10, at 2. I do not like the "empowerment" label because it gives an impression of mediators conveying power to the principals. This is not necessarily an accurate description of behavior of practicing mediators who use this label. Moreover, even as an ideal reflecting the best intentions, I believe that mediators should not be trying to manipulate the power of principals. Finally, the term has become so clichéd in usage as to lose clear meaning. Below, I elaborate my view of a substantively similar, though differently labeled, approach. See infra Part III.A. Return to text.

[72] As the profiles of mediators in Deborah Kolb's book demonstrate, the range of mediation practices is indeed quite diverse, and it would be difficult to disenfranchise mediators from using the title. See generally WHEN TALK WORKS, supra note 13. Return to text.

[73] When explaining his rationale for using an inclusive approach in his categorizations of mediation, Leonard Riskin expressed the pluralist view very well:

I hope to facilitate discussions and to help clarify arguments by providing a system for categorizing and understanding approaches to mediation. I try to include in my system most activities that are commonly called mediation and arguably fall within the broad definition of the term. I know that some mediators object to such inclusiveness, and fear that somehow it will legitimize activities that are inconsistent with the goals that they associate with mediation. Although I sympathize with this view, I also disagree with it. Usage determines meaning. It is too late for commentators or mediation organizations to tell practitioners who are widely recognized as mediators that they are not, in the same sense that it is too late for the Pizza Association of Naples, Italy to tell Domino's that its product is not the genuine article. Such an effort would both cause acrimony and increase the confusion that I am trying to diminish. Instead, I propose that we try to categorize the various approaches to mediation so that we can better understand and choose among them.
Riskin, supra note 9, at 13 (footnotes omitted). Advocates of a single-school approach, see, e.g., Kovach & Love, supra note 9, at 32, and pluralists agree on the need for clearly understood distinctions in the mediation market. They differ regarding whether it is more appropriate and practical to use the term "mediation" as the distinguishing label or to use qualifiers distinguishing different varieties of mediation instead. I believe that limiting the use of the term "mediation" does not solve the problem because there is confusion between mediation and similar processes (like mini-trials), as well as between styles of what is commonly called "mediation." See infra notes 103, 107-22 and accompanying text. It is too much to expect the single term "mediation" to distinguish various subtly different processes. Distinct and meaningful descriptors can provide more information about the substantive differences being established. Return to text.

[74] See John Lande, Mediation Paradigms and Professional Identities, MEDIATION Q., June 1984, at 19, 41-45. Return to text.

[75] See supra notes 46-50, 58-59 and accompanying text. Return to text.

[76] See supra note 9. Return to text.

[77] See supra Part II. Return to text.

[78] See infra Part IV.C. Return to text.

[79] Several reviewers noted what seemed to them to be an inconsistency between my advocacy of pluralism in mediation philosophies, see supra notes 71-73 and accompanying text, and my version of empowerment. However, this does not seem inconsistent to me. Like Riskin, having my own preferences "does not keep me from seeing the virtues of other approaches in appropriate cases," Riskin, supra note 9, at 13 n.17, and, I would add, with clear disclosure in all cases. Offering mediation buyers and sellers a wide range of choices is an even higher value for me than having a market limited to my preferred approach. Thus, I favor a vibrant mediation market in which advocates of different approaches fairly highlight the relative advantages of their approaches so that principals are given clear choices.

Bush and Folger argue that it is unlikely that, if offered their transformative style of mediation, potential mediation users would reject it. See BUSH & FOLGER, supra note 10, at 276-78. To support this view, Bush cites social science research describing general characteristics of dispute resolution procedures disputants favor that are consistent with a transformative model. See Robert A. Baruch Bush, "What Do We Need a Mediator For?" Mediation's Value-Added for Negotiators, 12 OHIO ST. J. ON DISP. RESOL. 1, 6-26 (1996). Even if the vast majority of mediation users would prefer transformative mediation if offered a clear set of choices, I would still want to respect the preferences of the minority who would prefer other styles, such as the settlor-style that I do not prefer. Providing principals with a choice between styles of mediation is very consistent with the value of promoting their responsibility for decisionmaking that is so central to empowerment philosophies. Return to text.

[80] See generally Peter Adler et al., The Ideologies of Mediation: The Movement's Own Story, 10 L. & POL'Y 317 (1988). Return to text.

[81] As some commentators have pointed out, many cases settled in mediation would probably have been settled through direct negotiation even without mediation. See, e.g., McEwen et al., supra note 23, at 1373. Thus, it is not completely accurate to think of mediation as removing cases from a court's trial docket. Return to text.

[82] See supra note 40. Return to text.

[83] See BUSH & FOLGER, supra note 10, at 1-12. Return to text.


[85] BUSH & FOLGER, supra note 10. This book caps more than a decade of interest of both authors in this subject. Bush's publications include: Robert A. Baruch Bush, Dispute Resolution Alternatives and the Goals of Civil Justice: Jurisdictional Principles for Process Choice, 1984 WISC. L. REV. 893 [hereinafter Bush, Jurisdictional Principles for Process Choice]; Robert A. Baruch Bush, Mediation and Adjudication, Dispute Resolution and Ideology: An Imaginary Conversation, 3 J. CONTEMP. LEGAL ISSUES 1 (1989); Robert A. Baruch Bush, Defining Quality in Dispute Resolution: Taxonomies and Anti-Taxonomies of Quality Arguments, 66 DENV. U. L. REV 335 (1989); Robert A. Baruch Bush, Efficiency and Protection, or Empowerment and Recognition? The Mediator's Role and Ethical Standards in Mediation, 41 FLA. L. REV. 253 (1989); Bush, supra note 79. Folger's publications include: Sydney E. Bernard et al., The Neutral Mediator: Value Dilemmas in Divorce Mediation, MEDIATION Q., June 1984, at 61; Joseph P. Folger & Sydney E. Bernard, Divorce Mediation: When Mediators Challenge the Divorcing Parties, MEDIATION Q., December 1985, at 5; JOSEPH P. FOLGER ET AL., WORKING THROUGH CONFLICT: STRATEGIES FOR RELATIONSHIPS, GROUPS, AND ORGANIZATIONS (1993); Joseph P. Folger & Robert A. Baruch Bush, Ideology, Orientations to Conflict and Mediation Discourse, in NEW DIRECTIONS IN MEDIATION (Joseph P. Folger & Tricia S. Jones, eds., 1994); Joseph P. Folger & Robert A. Baruch Bush, Transformative Mediation and Third Party Intervention: Ten Hallmarks of a Transformative Approach to Practice, 13 MEDIATION Q. 263 (1996) [hereinafter Folger & Bush, Ten Hallmarks]. Return to text.

[86] See SCHWERIN, supra note 84, at 55-91. Return to text.

[87] Although the individuals to be empowered specifically in the mediation context presumably are the principals, Schwerin finds that some of the mediation literature focuses on empowerment of the mediators. See id. at 77-79. Some studies of empowerment-oriented community mediation find that the mediators were indeed quite empowered, but that the principals were less so. See, e.g., Judy H. Rothschild, Dispute Transformation, the Influence of a Communication Paradigm of Disputing, and the San Francisco Community Boards Program, in THE POSSIBILITY OF POPULAR JUSTICE: A CASE STUDY OF COMMUNITY MEDIATION IN THE UNITED STATES 265, 319-20 (Sally Engle Merry & Neal Milner, eds., 1993). Return to text.

[88] These social and political goals include promotion of political awareness and participation, as well as outcomes of increased participation, greater social and material resources for the disadvantaged in society, and enforcement of legal rights protecting political participation. See SCHWERIN, supra note 84, at 81-87. Return to text.

[89] See id. at 77-78. Schwerin also finds that many mediators' discussions of empowerment include the related goals of promoting individuals' self-esteem and sense of control over their environments more generally (i.e., not limited to a specific dispute) and reducing dependency on professional and social services. While this general learning is often a very valuable product of mediation, it does not seem to be an element of consent. See infra Part III.C.

Some mediators associate the concept of empowerment with "equalizing" or "balancing" the power between the principals. See SCHWERIN, supra note 84, at 79; see also BUSH & FOLGER, supra note 10, at 95-96. I agree with Bush and Folger's critique that conceiving empowerment in terms of power balancing undermines mediators' efforts at impartiality. Moreover, I believe that it is virtually impossible for anyone to accurately measure and then balance power between principals. Thus, I do not use "empowerment" or similar concepts to incorporate the notion of equalizing power. This is not to say that mediators cannot or should not raise questions about whether differences in power are having or should have a substantial impact on the process and outcome in a mediation. Return to text.

[90] BUSH & FOLGER, supra note 10, at 84. Return to text.

[91] See id. at 85-87. Return to text.

[92] See id. at 95. Return to text.

[93] See id. at 210-211. Return to text.

[94] I use the term "exercise" rather than "take" or "assume" because the latter terms suggest that the responsibility was not originally that of the principals. The term "retain" thus seems more accurate, but does not reflect the active exercise of responsibility that I intend to convey (and promote). Return to text.

[95] See BUSH & FOLGER, supra note 10, at 28-32. Return to text.

[96] See id. Return to text.

[97] See id. Return to text.

[98] For example, official rules in Florida are designed to protect principals' "self-determination." FLA. R. CERT. & CT.- APPTD. MEDIATORS 10.060. Similarly, the first point in the Model Standards of Conduct for mediators developed by the American Arbitration Association, the American Bar Association, and the Society for Professionals in Dispute Resolution is that "self-determination is the fundamental principle of mediation." MODEL STANDARDS OF CONDUCT FOR MEDIATORS Standard I (Am. Arb. Ass'n et al. 1994). Return to text.

[99] Professor Ellen Waldman describes what she calls a "norm-generating model" of mediation in which unfettered party autonomy is the ultimate goal of mediation. Ellen A. Waldman, The Challenge of Certification: How to Ensure Mediator Competence While Preserving Diversity, 30 U.S.F. L. REV. 723, 733 (1996). Return to text.

[100] Waldman uses the term "norm-educating model," referring to an approach based on the assumption that parties must be educated about relevant norms (e.g., information about legal entitlements and relevant financial, technical, and psychological data) to truly exercise autonomy. Id. at 734-35. Her trichotomy is completed with a "norm-advocating model" in which party autonomy is an important value, but one subordinated to the achievement of other values, such as goals established by various statutes. Id. at 735. Return to text.

[101] See id. at 732. Return to text.

[102] See supra notes 83-85 and accompanying text. Return to text.

[103] The term "mini-trial" is somewhat misleading because, at least in theory, it is more like mediation than a trial. Mini-trials, which are most often used in business disputes, begin with summary presentations by lawyers to a panel consisting of high-level executives from each side. See STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION 230 (1992). After the lawyers' presentations, a "neutral advisor" assists the parties in negotiation, possibly giving a prediction of the likely results in litigation. See id.

Although this case is usually referred to as a mini-trial in the published account, it is sometimes described as a mediation. Moreover, the case is highlighted in a book subtitled "Profiles of Mediators." From the description of the process, it could have consistently been called a directive mediation. See Kolb & Kressel, supra note 13, at 473-74. It presents the same issues about exercise of responsibility even if it were consistently called a mini-trial. This is one reason why I believe that simply "not calling it mediation" would not resolve the underlying controversies about appropriate dispute resolution techniques. See supra notes 65-73 and accompanying text. Return to text.

[104] Endispute later merged with the Judicial Arbitration and Mediation Service (JAMS), and is now called JAMS/Endispute. See S. Gale Dick, Making ADR Profitable, 13 ALTERNATIVES TO HIGH COST LITIG. 1, 4 (1995). Return to text.

[105] Lavinia Hall, Eric Green: Finding Alternatives to Litigation in Business Disputes, in WHEN TALK WORKS, supra note 13, at 306. Green also described the mediator's role as a "pest-advocate for settlement." Id. at 286. Return to text.

[106] See id. at 285. Return to text.

[107] See id. at 286. The researcher describes the conversation with the judge as follows:

The parties appear to be at the point where the company would offer $350,000, while the plaintiff['s] . . . attorney has mentioned $750,000 during the settlement conference. The salesman has alleged damages as high as $7 million. The judge tells Green that "heavy discovery" has already been done. The case cannot be calendared for trial for three months, but a firm trial date can be set then if it will create the right incentives to encourage the defendant to settle. It is the judge's understanding that the plaintiff is hurting for cash. An expensive trial in three months, with the prospect of an appeal by the losing party (which in all likelihood will take another year), will result in the plaintiff losing his house. The plaintiff has strong incentives to settle. Finally, the judge notes that the plaintiff's attorney, a bright junior partner in a big firm, seems very invested in the case and has spent a lot of time on it.
Id. at 286. In what turned out to be a critical effort to influence the process, Green encouraged the plaintiff's attorney to bring to the mini-trial a senior partner who could "judge the case from a business point of view, not just a legal one." Id. at 290. After the case settled, the plaintiff told Green that it was the senior partner who advised him (and the junior partner) to accept the ultimate $550,000 offer. See id. at 301. " 'Otherwise,' the plaintiff says, he feels 'sure that my lawyer [the junior partner] would have advised me not to accept.' " Id. Return to text.

[108] See id. at 286. Return to text.

[109] See id. Return to text.

[110] See id. at 298. Return to text.

[111] Id. at 297. Return to text.

[112] Id. at 293. Return to text.

[113] Id. at 299. Return to text.

[114] See id. Return to text.

[115] See id. at 297-98. Return to text.

[116] A caucus is when the mediator meets separately with some of the participants. Typically, the mediator meets with one side—including both a principal and his or her lawyer if the lawyer attends the mediation—and then the other side. There are many possible variations because a mediator may meet with a single principal or lawyer, just the lawyers, or just the principals. Many mediators set a "ground rule" that statements in caucus are confidential unless the principal agrees to permit the mediator to disclose particular information. See generally MOORE, supra note 1, at 318-26. Return to text.

[117] See Hall, supra note 105, at 300. Miami mediator John W. Salmon uses the term "terminal caucus" to refer to a process in which virtually all of the mediation is conducted in caucus and the participants reconvene all together only after the mediator has finished working out an agreement by "shuttling" back and forth between separate meetings with each side. See Interview with John W. Salmon, Miami mediator, in Ft. Lauderdale, Fla. (March 13, 1996). Return to text.

[118] Hall, supra note 105, at 299-300. Return to text.

[119] Id. at 298-99. Return to text.

[120] See id. at 300. Return to text.

[121] See id. Return to text.

[122] I use this case for illustration because it provides an especially detailed account of directive mediation tactics. I do not intend to single out Professor Green for criticism because he is, after all, a successful and respected mediator who uses techniques that are quite common in some sectors. Although I criticize Green's tactics in this case, I believe there may be an appropriate place in the dispute resolution market for directive mediation under some conditions. It is not clear from the published account whether Green accurately described to the principals the kind of pressure tactics that he would use and how they compared with other mediation practices. If he did so, I would be less concerned about his procedures. See supra note 79 and infra notes 173-74, 269 and accompanying text. Return to text.

[123] Kolb & Kressel, supra note 13, at 461; see also id. at 479-83, 488. Return to text.

[124] David Greatbatch & Robert Dingwall, Selective Facilitation: Some Preliminary Observations on a Strategy Used by Divorce Mediators, 23 L. & SOC'Y REV. 613, 613 (1989). Return to text.

[125] See id. at 618, 636-38. Return to text.

[126] Conversation analysis techniques provide much more detail than verbatim transcripts prepared by court reporters. Conversation analysis transcripts display utterances, pauses, voice inflections, and overlapping talk, thus providing a relatively complete depiction of conversations. See id. at 619 n.7. Return to text.

[127] See id. at 618. Return to text.

[128] See id. Return to text.

[129] See id. Return to text.

[130] See id. at 619-35. Return to text.

[131] See id. at 636. Return to text.

[132] See id. at 634. Return to text.

[133] See id. at 617. Return to text.

[134] See supra notes 48-50 and accompanying text. Return to text.

[135] See RESTATEMENT (SECOND) OF CONTRACTS §§ 12-19 (1981); see also infra notes 139-43 and accompanying text. Return to text.

[136] RESTATEMENT (SECOND) OF CONTRACTS § 2(1). Return to text.

[137] Id. § 2(1) cmt. b. Return to text.

[138] See id. §§ 17-19. According to a comment in the Restatement:

Almost never are all the connotations of a bargain exactly identical for both parties; it is enough that there is a core of common meaning sufficient to determine their performances with reasonable certainty or to give a reasonably certain basis for an appropriate legal remedy.
Id. § 20 cmt. b. Return to text.

[139] See id. § 208 cmt. d:

A bargain is not unconscionable merely because the parties to it are unequal in bargaining position, nor even because the inequality results in an allocation of risks to the weaker party. But gross inequality of bargaining power, together with terms unreasonably favorable to the stronger party, may confirm indications that the transaction involved elements of deception or compulsion, or may show that the weaker party had no meaningful choice, no real alternative, or did not in fact assent or appear to assent to the unfair terms. Return to text.

[140] See id. §§ 159-73. Return to text.

[141] See id. §§ 174-75. Return to text.

[142] See id. §§ 176-77. Return to text.

[143] See id. §§ 151-58. Return to text.

[144] See, e.g., ROBERT J. RINGER, WINNING THROUGH INTIMIDATION (1978). Return to text.

[145] See Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 980 (1979). "[A] standard may have good characteristics as a background rule for private ordering but may nevertheless be unacceptable as a standard for adjudicating disputed cases." Id. The converse is true as well. Professors Mnookin and Kornhauser show that the "best interests of the child standard" for determining child custody may produce good results in adjudication, but creates perverse incentives in negotiation. Id. at 977-79. Return to text.

[146] See supra text accompanying notes 126-33. Return to text.

[147] See supra text accompanying notes 120-21. Return to text.

[148] Some commentators correctly point out that the termination of some cases does not necessarily completely resolve a conflict or even avoid future litigation. See Bush, Jurisdictional Principles for Process Choice, supra note 85, at 907 n.26. Nonetheless, settlement often does result in resolution, which is something that people may legitimately value. Return to text.

[149] As described below, although I am critical of directive mediation styles involving substantial mediator pressure, I would be satisfied if principals chose such an approach after receiving a clear description of the procedures that are likely to be used. See infra notes 173-74, 269 and accompanying text; see also supra note 79. Return to text.

[150] Craig McEwen raised an important question about whether agreements reached in mediated negotiations should be judged by a higher standard than those reached in unmediated negotiations. See Telephone Interview with Craig McEwen, Daniel B. Fayerweather Professor of Political Economy and Sociology, Bowdoin College (Oct. 24, 1996). This is a large and important question beyond the scope of this Article. Return to text.

[151] RESTATEMENT (SECOND) OF CONTRACTS § 3 (1981). Return to text.

[152] I use the term "responsibility" to refer to both authority and accountability. By definition, the principals are the ones who are authorized to make the ultimate decisions in a dispute. The concept of accountability is clearest for representatives of organizations, such as executives and claims adjusters, who are accountable to others in their organizations. Principals acting solely as individuals are accountable to their own self-judgment, and they must live with the consequences of their decisions. Return to text.

[153] See infra notes 162-87 and accompanying text. I am grateful to Jim Boskey for highlighting the costs of producing high-quality consent. Return to text.

[154] See Riskin, supra note 9, at 38 n.98. Return to text.

[155] For another effort to identify critical elements in empowerment-style mediation, see Folger & Bush, Ten Hallmarks, supra note 85. Folger and Bush's list of factors overlaps with mine in focusing on principals' decisionmaking responsibility, thorough consideration of issues, and avoidance of mediator pressure. Their list seems oriented to providing tactical advice to mediators and thus contains some specific prescriptions that might be included in some of my more general factors. Return to text.

[156] Because this scale is intended to reflect the quality of principals' consent, these factors focus primarily on the quality of the decisionmaking process, though the factors involving selection and evaluation of options do require careful analysis of potential outcomes by the principals. Evaluation of results by such criteria as fairness and efficiency is also important, but beyond the scope of this Article. Return to text.

[157] Cf. Moberly, supra note 65 (arguing that although evaluative methods present potential dangers, they are not unethical per se). Return to text.

[158] Lawsuits based on fraud sometimes refer to "deceit." The following is a recitation of the elements required for this cause of action:

The essential elements required to sustain an action for deceit are, generally speaking, that a representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injury or damage. The representation must have been made to him either directly or indirectly, and must have been of such a nature that it was reasonably calculated to deceive him and to induce him to do that which otherwise he would not have done. Generally, all of these ingredients, except for a few variants from the common-law rules in force in some American jurisdictions, must be found to exist, and the absence of any one of them is fatal to a recovery . . . .

37 AM. JUR. 2D Fraud and Deceit § 12 (1968) (footnotes omitted). Return to text.

[159] Keithley v. Civil Serv. Bd., 89 Cal. Rptr. 809, 815 (Ct. App. 1970) (citation omitted). These behaviors have an eerie resemblance to the more directive style of mediation, especially with the use of multiple persuaders. Although principals in mediation often have their lawyers present, they may sometimes feel that their own lawyers have "turned on them," joining with the opposing side and the mediator in urging them to become "more reasonable." See supra note 107; see also infra text accompanying notes 214-15, 224. Return to text.

[160] See Keithley, 89 Cal. Rptr. at 815; see also generally 1 B.E. WITKIN, SUMMARY OF CALIFORNIA LAW, Contracts § 428 (9th ed. 1995). Return to text.

[161] See supra notes 48-50, 58-60 and accompanying text. Return to text.

[162] See Riskin, supra note 9, at 18-23; see also FISHER ET AL., supra note 14, at 40-55 (advising parties to identify interests underlying their positions); BUSH & FOLGER, supra note 10, at 85 (advocating empowerment by identifying goals); Menkel-Meadow, Toward Another View of Legal Negotiation, supra note 12, at 794-829 (proposing model of problem-solving negotiation meeting parties' underlying needs). Return to text.

[163] See Riskin, supra note 9, at 18-23. Return to text.

[164] Many of the factors I suggest entail an element of explicitness. I am grateful to Mill Valley, California, mediator and trainer Gary Friedman for highlighting this value. This may be useful to assure that the matter is indeed dealt with and to minimize confusion. Return to text.

[165] Some people advocate the use of brainstorming processes in which the participants are encouraged to suggest many different options, often including outrageous options, as a spur to creative thinking. See FISHER ET AL., supra note 14, at 60-70. While it can be a very useful technique to encourage people to suggest even silly options, this is not necessary for informed decisionmaking. The fact that one can almost always suggest a virtually infinite number of implausible options indicates that one need not consider all options to make informed judgments. Indeed, even limiting discussion to all plausible options may be impractical because there may be a virtually infinite number of plausible options in some situations, as when the issue is about allocation of a continuous commodity like money. If P demands $100,000 and D offers $10,000, there are at least 90,000 plausible options. Here, consideration of all plausible options would not entail explicit consideration of every single intermediate amount, but rather examination of the different principles on which the principals may base their decision of which amount to select. In addition, plausible options may include nonmonetary solutions, options based on linkages between issues, and possible contributions of parties not "at the table." Return to text.

[166] See supra note 49. Return to text.

[167] Some people would argue that it is inappropriate for mediators to suggest options because they believe this would undermine the principals' self-determination. I have frequently heard mediators say that it would be inappropriate to suggest options because it would unduly influence the parties or inevitably favor one party over another. I am concerned about mediators favoring some options over others, but I do not believe that mediator suggestions necessarily pressure principals excessively, which I believe depends on such things as the substantive balance, timing, and tone of mediators' suggestions. Thus, I would focus directly on the nature and effect of mediator efforts at influence rather than make the categorical assumption that mediator suggestions have adverse effects. Mediators who criticize directly suggesting options sometimes recommend that mediators can avoid (at least the appearance of) bias or pressure on parties by asking questions rather than making declarative suggestions. This formula seems wholly inadequate because, depending on the tone and context, some questions (e.g., "How greedy can you get?") can exert more pressure than declarative suggestions. See supra note 113 and accompanying text. Return to text.

[168] See supra note 49. Return to text.

[169] I am grateful to Professor Fran Tetunic for suggesting this point. Return to text.

[170] See supra text accompanying notes 124-33. Return to text.

[171] See supra text accompanying notes 110-14. Return to text.

[172] See Kovach & Love, supra note 9, at 31-32. Return to text.

[173] See Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO HIGH COST LITIG. 62, 63 (1996); Laurence D. Connor, How to Combine Facilitation with Evaluation, 14 ALTERNATIVES TO HIGH COST LITIG. 15, 15 (1996) (concluding that innovative procedure is appropriate only by consent of principals). Return to text.

[174] Some advocates of empowerment question the need for mediators to express opinions, arguing that the principals' lawyers or other experts retained by the principals can provide this information. See, e.g., Kovach & Love, supra note 9, at 31. While this strategy may address the principals' needs in some cases, some principals may feel unsatisfied with this. Lawyers (and other professionals retained by one side in a dispute) have their own perspectives and interests that are not always congruent with those of their clients. Lawyers may take strong positions as a natural part of their role as advocates or simply to maintain the clients' confidence. On the other hand, clients are often aware that their lawyers may be more inclined to settle than the clients, raising doubts about the opinions expressed by the lawyers. See AUSTIN SARAT & WILLIAM L.F. FELSTINER, DIVORCE LAWYERS AND THEIR CLIENTS: POWER AND MEANING IN THE LEGAL PROCESS 108-41 (1995). Although principals sometimes jointly hire third-party experts (such as appraisers) to provide impartial opinions, this approach presents financial and practical problems in many cases. Thus, some principals may especially value their mediators' perspectives, particularly if the principals have confidence in the mediators' integrity and impartiality. See Riskin, supra note 9, at 38 n.98. Return to text.

[175] The general counsel of a large conglomerate described the importance of relationships in many of the firm's disputes:

[M]any of our businesses, for example, are with an industry in which it's primarily a customer-dominated market. In other words, if I have a dispute with a car company, or if I have a dispute with [names of companies], . . . the overriding consideration is the long-term relationship. Whether we win, lose, or draw, the economics, how strong our case is—none of that matters.

Lande, supra note 8, at 121. Return to text.

[176] See Herbert Jacob, The Elusive Shadow of the Law, 26 L. & SOC'Y REV. 565, 571, 581-83 (1992) (observing that whether divorcing parties got information about the law from personal network of relatives, friends, co-workers, and acquaintances affected how the parties defined the issues). Return to text.

[177] Someone told me of a case in which his mother was the plaintiff in a personal injury suit. According to the story, the insurance company offered more than the plaintiff had decided that she needed to settle. During the negotiations, however, the insurance adjuster implied that the plaintiff was partially at fault for the incident, and the plaintiff refused to accept the offer until the adjuster apologized for the statement. I don't know how accurate this particular story is, but it illustrates a common dynamic in which the initial dispute triggers other disputes about the conduct of the dispute. When attorneys are involved, sometimes the attorneys "go at it," thus multiplying the number of things that the principals may be angry about in the dispute. Return to text.

[178] This is different from Bush and Folger's concept of "recognition," by which they refer to empathy for and acknowledgment of others' problems. See BUSH & FOLGER, supra note 10, at 2. I believe that recognition can be a very important goal and benefit of mediation. Like Bush and Folger, I distinguish it from some concept of empowerment. In this analysis, consideration of relationships is an element of high-quality consent because of the important meanings that principals derive from individuals' relationships. Focusing on emotional and relationship issues is an especially important potential benefit of mediation, considering that many lawyers feel ill-equipped to deal with such issues. See SARAT & FELSTINER, supra note 174, at 42-52, 128-33. Return to text.

[179] See supra text accompanying notes 109-14. One reviewer thought that I was too critical of Eric Green's techniques. The reviewer noted that many mediation authorities recognize a legitimate role of a mediator as an "agent of reality," and that many of Green's statements are about his perception of reality. Indeed, one of the techniques that I advocate is promotion of careful consideration of options. See supra text accompanying notes 165-78. Nonetheless, I have always been uncomfortable with the agent-of-reality concept because some mediators interpret this as a warrant establishing that mediators necessarily have superior knowledge of reality than the participants do. Though mediators often do have a privileged perspective (especially if they caucus extensively so that the mediators have more current information than any of the participants), the agency-of-reality claim is sometimes made to privilege the mediators' personal opinions, advice, and overly confident predictions. As the reviewer noted, agent-of-reality techniques are dangerous if the mediators give false impressions of what would happen in the absence of agreement, or if they make a participant feel so uncomfortable about the mediators' behavior (rather than the underlying reality of the situation) that the participant makes decisions primarily to reduce that discomfort.

While the participation of experienced attorneys may, as one reviewer suggested, mitigate harmful effects of mediators' pressure techniques, these techniques are especially risky if a principal is unrepresented or represented by incompetent counsel. Should the standard be that pressure tactics do not diminish the quality of consent if the mediators can assure that the principals are represented by (equally) competent counsel? Not as far as I am concerned. The critical distinction is whether the reality testing is primarily designed to help the principals better exercise their own judgment or to inhibit principals from doing so by pressuring them to accept the mediators' preferred options. Based on the published account of Green's case, his actions fall clearly in the latter category. Return to text.

[180] See U.S. CONST. amend. VII; see also, e.g., FLA. CONST. art. 1, § 22. Return to text.

[181] See supra text accompanying notes 115-18. Return to text.

[182] Cf. 16 C.F.R. § 429.1 (1997) (Federal Trade Commission rule defining as unfair and deceptive act in which door-to-door seller fails to provide buyer with notice of right to cancel sale within three days of sale). I am grateful to Berkeley, California, mediator Ron Kelly for persistently emphasizing this point. Return to text.

[183] In criminal cases, defendants who plead guilty typically must go through a "cop-out" ceremony in court where the

accused not only is made to assert publicly his guilt of a specific crime, but also a complete recital of its details. He is further made to indicate that he is entering his plea of guilt freely, willingly, and voluntarily, and that he is not doing so because of any promises or in consideration of any commitments that may have been made to him by anyone.

Abraham S. Blumberg, The Practice of Law as Confidence Game: Organizational Cooptation of a Profession, L. & SOC'Y REV., June 1967, at 15, 32. This process is obviously a charade in many cases and virtually everyone involved knows it. Despite the guilty pleas and affirmations of voluntariness, Blumberg, in a random survey of 724 defendants, found that in presentence probation interviews following their guilty pleas, more than half the defendants claimed to be innocent. See id. Return to text.

[184] See infra notes 214-16, 223-25, 236 and accompanying text. Return to text.

[185] See supra Part II. Return to text.

[186] See Lande, supra note 74, at 41-45. Return to text.

[187] See supra notes 48-50 and accompanying text. Return to text.

[188] See supra notes 8, 23 and accompanying text (discussing development of "liti-mediation" culture). Return to text.

[189] Co-evolution is a process of mutual adaptation of different interdependent entities in which the development of each entity affects the other(s). See Suchman, supra note 30, at 321-24. "Various entities pivot around each other towards a stable but initially indeterminate end-state, creating their environment collectively, rather than adjusting to it individually." Id. at 321. Return to text.

[190] See Craig A. McEwen et al., Lawyers, Mediation, and the Management of Divorce Practice, 28 L. & SOC'Y REV. 149, 178-81 (1994). Professors Craig McEwen, Lynn Mather, and Richard Maiman conducted a compelling study comparing divorce practice in Maine, where there is a mandatory divorce mediation scheme, and in New Hampshire, where there is not such a scheme. Based on interviews with 163 lawyers, they found that Maine lawyers typically acted reasonably in mediation and that the lawyers had less adversarial attitudes and behaviors than their counterparts in New Hampshire. See id.; see also McEwen et al., supra note 23, at 1367-68. Return to text.

[191] McEwen and his colleagues reported that the mandatory mediation in Maine did not appear to spoil the mediation process or undermine real mediation. See McEwen et al., supra note 23, at 1371-73, 1392-94. While these problems may not have occurred in Maine, I believe that without careful precautions, institutionalization of mediation may entail substantial risks to principals, as described in this Part. Return to text.

[192] See infra note 205. Return to text.

[193] Craig McEwen correctly points out that in analyzing the effects of lawyer participation in mediation, rather than comparing this to a process in which the principals do not retain lawyers at all, one should generally compare mediation processes in which lawyers attend mediation sessions with mediation processes in which lawyers are retained by the principals but do not attend mediation sessions. See McEwen, supra note 150. He suggests that when the lawyers do not attend mediation sessions, they may nonetheless have a major adverse effect if, for example, they give principals strict instructions about what they should not agree to and then second-guess agreements reached in sessions in which the lawyers did not participate. See id. While this certainly may be so, I believe that direct lawyer participation in mediation brings the serious risks described in this Article, which I suspect often exceed those that McEwen identifies. The issue deserves more analysis than is possible within the scope of this Article. Return to text.

[194] See ROGERS & MCEWEN, supra note 3, app. B. Return to text.

[195] The McEwen et al. study of divorce mediation in Maine found that "having incorporated mediation into their practices, Maine divorce lawyers report that they typically describe the process, seriously examine settlement options and approaches, and preach mediation's virtues to clients in preparing them to undertake the process." McEwen et al., supra note 23, at 1385. Return to text.

[196] See Robert F. Cochran, Jr., Legal Representation and the Next Steps Toward Client Control: Attorney Malpractice for the Failure to Allow the Client to Control Negotiation and Pursue Alternatives to Litigation, 47 WASH. & LEE L. REV. 819 (1990); Frank E.A. Sander, At Issue: Professional Responsibility, Should There Be a Duty to Advise of ADR Options? Yes: An Aid to Clients, A.B.A. J., Nov. 1990, at 50, 50; ROGERS & MCEWEN, supra note 3, § 4:03. Return to text.

[197] See Elizabeth D. Ellen, Attorneys and Court-Ordered Mediation: An Examination of the Lawyer-Neutral (June 3, 1995) (paper presented at the Law and Society Association Annual Meeting). Ellen conducted a study of mediators in North Carolina, where the mediated settlement conference statute was modeled on Florida's mediation statute, particularly in its provisions governing certification and selection of mediators. Ellen found that lawyer-mediators comprised an elite group in the bar as compared with the nonmediators. See id. Return to text.

[198] See McEwen et al., supra note 23, at 1385. McEwen and his colleagues found that "[f]rom the perspective of clients, mediation in Maine simply appears as another step in the divorce process" and that Maine lawyers typically view it the same way. Id. Return to text.

[199] As one indication of this, many mediators in Florida begin their "opening statements" by telling the principals that the opening statement is directed to them (the principals) because the lawyers have heard it many times. See, e.g., Videotape: Circuit Civil Mediation with Martin I. Lipnak (on file with author). Return to text.

[200] See Galanter, supra note 30, at 114 (characterizing lawyers as quintessential repeat players). Return to text.

[201] For example, Eric Green identifies cases by the person who referred the case, such as "Judge X's case" or the "construction case from Attorney Y." Hall, supra note 105, at 283. Return to text.

[202] See supra notes 29-32 and accompanying text. It is true, as Greg Firestone correctly pointed out, that some attorneys may receive case referrals from mediators. Thus, the influence is not entirely a "one-way street." Nonetheless, I suspect that mediators are generally more dependent on receiving referrals from lawyers than the other way around, especially in liti-mediation environments where cases are ordered to mediation only after the litigation (and often the legal representation) has begun. Return to text.

[203] Mediators do not have formal authority to impose an ultimate resolution in a matter, and thus could not make a formal decision favoring one side or another. See, e.g., FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.050-.070. Nonetheless, mediators may help or interfere with particular individuals' efforts through the mediators' control over the process, including such decisions as what issues are worthy of discussion and what options are suitable for serious consideration, and subtle or not-so-subtle expressions of opinion about particular positions. See supra text accompanying notes 162-84. Return to text.

[204] A journalistic report highlighted risks of private ADR service providers regularly relying on certain lawyers or principals for work as neutrals. See Richard C. Reuben, The Dark Side of ADR, CAL. LAW., Feb. 1994, at 53. Although this account focused primarily on adjudicatory ADR processes, the potential for abuse is similar with mediation, especially when the mediators use more directive techniques. See supra note 40. One attorney complained about perceived bias of a private ADR organization because he was a "one-shotter," Galanter, supra note 30, at 97, in a proceeding with a repeat player before the ADR organization:

"I realized the situation the minute I walked in the room," says the attorney. "There I was, a sole practitioner who may bring one case to JAMS [Judicial Arbitration and Mediation Service] in a year, going up against an insurance company that brings it thousands of cases every year."

Reuben, supra, at 57. Clearly, from an account like this, one cannot tell whether the ADR provider did or did not act improperly. However, this account highlights a serious potential problem. One attorney told me that he believes that insurance company claims adjusters have significant input in the choice of specific mediators in their cases. Another attorney summarized the problem in the following graphic and probably overstated quotation:

"Anytime you are paying someone by the hour to decide the rights and liabilities of litigants, and that person is dependent for future business on maintaining good will with those who will bring him business, you've got a system that is corrupt at its core," [Century City, California, attorney Joseph A.] Yanny charges. "They have taken Lady Justice and put her on the street corner, hooking for tricks."

Id. at 54. Of course, repeat players receive favored treatment in traditional litigation through their relationships with "institutional incumbents," e.g., judges and court clerks. Galanter, supra note 30, at 99. Therefore, any such dynamics in mediation would not be unique or necessarily greater than in traditional litigation.

Conflicts of interest may be prohibited by statute or rule. See, e.g., FLA R. CERT. & CT.- APPTD. MEDIATORS 10.070(b) (requiring mediators to disclose conflicts of interest). Nonetheless, it may not be clear whether disclosure is mandated (or normally provided) in some situations; thus, prudent mediation shoppers take the initiative to ask about it. See Harry N. Mazadoorian, Disclosure Questions for ADR Counsel to Ask When Choosing Neutrals or Provider Groups, 14 ALTERNATIVES TO HIGH COST LITIG. 95, 95 (1996). Return to text.

[205] For example, in Maine, lawyers usually attend divorce mediation sessions. Seventy-eight percent of lawyers interviewed said that they "almost always" attend mediation sessions and an additional 17% said that they "usually" did so. See McEwen et al., supra note 23, at 1359-60. In Florida, official estimates of lawyer attendance vary widely by type of court and geographical location. For example, in about one-quarter of the mediation programs in county court mediation (covering cases up to $15,000), lawyers attend in more than half the cases. In about three-quarters of the programs in family mediation, lawyers attend in more than half the cases. In about three-quarters of the programs in circuit civil mediation (cases in which requested damages exceed $15,000), lawyers attend in more than 80% of the cases. See SCHULTZ ET AL., supra note 2, at 39-40, 89-90, 109. Indeed, in circuit civil cases, "[i]f a party is represented by counsel, the counsel of record must appear unless otherwise stipulated to by the parties or otherwise ordered by the court." FLA. STAT. § 44.1011(2)(b) (Supp. 1996) (emphasis added). Return to text.

[206] For example, a lawyer-mediator in Northern California with a large family mediation practice reported that she had never attended a mediation on behalf of a client she represented, and that she is unusual in her mediation community because when she mediates, she occasionally suggests that the lawyers attend. See Interview with Althea Lee Jordan, California attorney and mediator, in Palo Alto, Cal. (Aug. 11, 1996). Data from 205 court-related divorce mediation programs indicated that lawyers did not play a role in mediation in 43% of the programs, and 33% reported that lawyers could participate by stipulation of the parties. See McEwen et al., supra note 23, at 1362 n.261 (analyzing data from a state ADR program database maintained by the National Center for State Courts (NCSC)). In several states, statutes permit exclusion of lawyers from mediation sessions. See id. at 1331 & nn.68-69. Return to text.

[207] According to data from the NCSC database as analyzed by McEwen and his colleagues, 11% of the court-related divorce mediation programs permitted lawyers to observe mediation sessions. See McEwen et al., supra note 23, at 1362 n.261. Lawyers in Maine reported flexibility in their approaches to the balance of their participation and that of their clients; sometimes the lawyers participate more actively and other times the clients participate more actively. See id. at 1363-64. Return to text.

[208] See Videotape, supra note 199. Return to text.

[209] Id. Return to text.

[210] I am grateful to Craig McEwen for highlighting the fact that mediators have some control over the role of lawyers in mediation, especially by setting expectations in the opening statement. Return to text.

[211] In fact, the mediator in the videotape had extensive experience as a litigator. Thus, the form of the question may be due, in part, to force of habit. I suspect, however, that this interaction reflected much more than simply an old habit. Return to text.

[212] See supra note 40. Return to text.

[213] McEwen and his colleagues found that virtually all the Maine lawyers they interviewed said that their principal role was to protect their clients from unfairness by the mediator or the other side. See McEwen et al., supra note 23, at 1360-62. Return to text.

[214] See id. at 1370; see also McEwen et al., supra note 190, at 163-66. Return to text.

[215] McEwen et al., supra note 23, at 1370; see also McEwen et al., supra note 190, at 163-66. Return to text.

[216] Although it may be relatively easy to parry requests from principals for facilitative mediators to be directive by expressing opinions about the merits of a case, I have heard several mediators express a serious dilemma about how to respond when such requests (or demands) come from attorneys who might be sources of future referrals in a tight market for mediators. See, e.g., supra note 44. Return to text.

[217] See McEwen et al., supra note 23, at 1387. Return to text.

[218] See id. It is not clear how much time mediation saved, considering that the timing in the litigation varied. In cases that otherwise would have settled "on the courthouse steps" just before trial, a mediation conducted a week or two before trial resulted in some—but not substantial—time savings. On the other hand, when mediation occurred early in the litigation, it presumably resulted in much greater time savings. Return to text.

[219] See McAdoo & Welsh, supra note 6, at 10. In Hennepin County, Minnesota, where Supreme Court Rule 114 authorizes court referral to mediation,

[t]here may be less lawyer-to-lawyer negotiation going on now, with a preference to wait for a "mandatory" mediator's assistance with settlement. . . . [T]he sheer number of lawyers practicing makes informal, more civil negotiations difficult. Lawyers like the fact that with mediation under Rule 114, an outside neutral is brought to the case who can assist the lawyers to tone down their posturing, to be realistic about their cases, and to allow clients to be more actively involved in the ultimate resolution. In addition, mediation provides a specific day when all parties come to the table, with the task at hand being to settle.

Id. Return to text.

[220] See ROGERS & MCEWEN, supra note 3, § 4:06. Return to text.

[221] See id. Return to text.

[222] One of my students, who is a paralegal with extensive experience working for an insurance defense firm, describes how her conversations with clients and the lawyers in her firm often involve planning for their moves in mediation. See Interview with Noël Miner, graduate student, Nova Southeastern University, in Fort Lauderdale, Fla. (Oct. 3, 1996); see also Edward F. Sherman, The Impact on Litigation Strategy of Integrating Alternative Dispute Resolution into the Pretrial Process, 15 REV. LITIG. 503, 510 (1996) ("ADR is now a central consideration in pretrial planning."). Return to text.

[223] See Interview with Sharon Boesl, Director, Clinical and Community Outreach Center, School of Social and Systemic Studies, Nova Southeastern University, in Fort Lauderdale, Fla. (Sept. 29, 1996); Interview with Lynne Lucas, Fort Lauderdale mediator, in Fort Lauderdale, Fla. (Sept. 26, 1996). As Craig McEwen pointed out, norms for timing are a function of the local culture. Thus, if overscheduling by lawyers was considered unacceptable (especially by the judges), this time pressure could be reduced. See McEwen, supra note 150. Return to text.

[224] See supra notes 175-78 and accompanying text. Return to text.

[225] See McEwen et al., supra note 190, at 154. Return to text.

[226] See Jessica Pearson & Nancy Thoennes, Divorce Mediation Research Results, in DIVORCE MEDIATION, supra note 17, at 429, 432. Return to text.

[227] See supra note 49. Return to text.

[228] See JONATHAN M. HYMAN ET AL., CIVIL SETTLEMENT: STYLES OF NEGOTIATION IN DISPUTE RESOLUTION (1995) at 165. In my survey of 128 business lawyers, 83% said that in more than half of suits between two businesses, it is appropriate to try to find outcomes addressing the underlying interests of each party. See Lande, supra note 8 (data on file with author). Moreover, 60% of the lawyers said that in more than half of suits between two businesses, outcomes other than or in addition to monetary payments would be appropriate. See id. Thus, at least in theory, the majority of lawyers support the use of problem-solving approaches in litigated cases. However, interviews with Hennepin County, Minnesota, lawyers suggest that there are barriers between this philosophy and actual practices, considering that settlements in mediation were not more "creative" than before mediation became institutionalized. See McAdoo & Welsh, supra note 6, at 10. Return to text.

[229] See HYMAN ET AL., supra note 228, at 166. Return to text.

[230] Leonard Riskin referred to this as a lawyer's "standard philosophical map." Leonard L. Riskin, Mediation and Lawyers, 43 OHIO ST. L.J. 29, 43-48 (1982); see also Michael J. Lowy, Law School Socialization and the Perversion of Mediation in the United States, 3 WINDSOR Y.B. ACCESS TO JUSTICE 245, 248-52 (1983) (providing an analysis of nine elements of "legalism" that lawyers may bring into mediation, resulting in the failure to realize the educational potential of mediation). Indeed, mediation practice guides often caution about the risks of aggressive attorneys obstructing settlement. See, e.g., KIMBERLEE K. KOVACH, MEDIATION: PRINCIPLES AND PRACTICES 89 (1994). Return to text.


[232] See id. at 172-78; see also Robert H. Mnookin, Why Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict, 8 OHIO ST. J. ON DISP. RESOL. 235, 248-49 (1993). Return to text.

[233] See McEwen et al., supra note 23, at 1365. Return to text.

[234] Id. at 1365; see also Ronald J. Gilson & Robert H. Mnookin, Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation, 94 COLUM. L. REV. 509, 541-46 (1994). Return to text.

[235] See McEwen et al., supra note 23, at 1364-68 and sources cited therein. Return to text.

[236] See supra text accompanying notes 214-16, 223-25. Return to text.

[237] See McEwen et al., supra note 190, at 178-79. Return to text.

[238] Id. Return to text.

[239] See supra notes 228-29 and accompanying text. Return to text.

[240] My survey of business lawyers also suggests that there are often loose links between attitudes and behaviors about desirable dispute resolution procedures. More than three-quarters (77%) of the business lawyers in the survey said that mediation would be appropriate in at least half of lawsuits involving a business. See Lande, supra note 8 (data on file with author). Nonetheless, over the course of their careers, which averaged eight to ten years, they personally had participated in a median of six to ten cases in which any ADR procedure was used. See id. For a description of the research design, see id. at 46-84. Although mediation services may have been less available at the outset of their careers than at present, this still represents a fairly low usage rate even if all the ADR cases had occurred in the year or two before the survey was conducted in 1994.

On the other hand, McEwen and his colleagues present data showing an approximate 20% reduction in the number of "adversarial divorce motions per case" coinciding with the introduction of mandatory divorce mediation in Maine. See McEwen et al., supra note 190, at 179. This may (or may not) indicate an increase in "reasonableness" or problem-solving behavior related to increased use of mediation. Return to text.

[241] See generally Lawrence M. Watson, Jr., Effective Legal Representation in Mediation, in 2 ALTERNATIVE DISPUTE RESOLUTION IN FLORIDA 2-6 to 2-27 (2d. ed. 1995) (discussing lawyers' roles in mediation). Return to text.

[242] Of course, mediators serve all the principals, whereas lawyers serve only one side. Return to text.

[243] See McEwen et al., supra note 190, at 163-64. Return to text.

[244] See McEwen et al., supra note 23, at 1327 (summarizing the critique that "legal advocacy and decision making diminish party autonomy and freedom—and thus 'empowerment'—by allowing lawyers and courts to shape decisions using legal rules in a way that may have little relationship to the parties' priorities, needs, and interests"). Return to text.

[245] See supra text accompanying notes 223-24. Return to text.

[246] See supra Part III.C.1. Return to text.

[247] See supra Part III.C.2. Return to text.

[248] See supra Part III.C.3. Return to text.

[249] See supra Part III.C.4. Return to text.

[250] See supra Part III.C.5. Return to text.

[251] See supra Part III.C.7. Return to text.

[252] McEwen et al., supra note 23. Note that McEwen and his colleagues specifically focused on promoting fairness in divorce mediation cases. See id. at 1322. Although their argument could be applied to most disputes involving significant stakes and potential legal issues, one might make distinctions based on different types of cases, whether there are significant disparities in power, etc. Return to text.

[253] See McEwen et al., supra note 190, at 176. Return to text.

[254] McEwen et al., supra note 23, at 1394. Return to text.

[255] See supra text accompanying notes 233-38. Return to text.

[256] See generally Menkel-Meadow, Pursuing Settlement in an Adversary Culture, supra note 12 (presenting a philosophical defense of settlement in certain situations). Return to text.

[257] See McEwen et al., supra note 23, at 1354-55, 1392 (citing critiques of lawyers as "spoilers" of "real" mediation). Return to text.

[258] Menkel-Meadow, Pursuing Settlement in an Adversary Culture, supra note 12, at 17; see also Lowy, supra note 230, at 252-54. Return to text.

[259] Nancy J. Foster & Joan B. Kelly, Divorce Mediation: Who Should Be Certified?, 30 U.S.F. L. REV. 665, 673 (1996). Foster and Kelly express concern about problems with lawyers serving as mediators, arguing that, to perform appropriately, lawyer-mediators may face a difficult challenge to learn new behaviors and change assumptions about their roles. See id. at 674. Lawyers acting as advocates in mediation may face similar challenges and may be less likely to receive training or to consider differences between mediation and traditional litigation practices. Return to text.

[260] See, e.g., Menkel-Meadow, supra note 10, at 228-30; Howard S. Erlanger et al., Participation and Flexibility in Informal Processes: Cautions from the Divorce Context, 21 L. & SOC'Y REV. 585, 587 (1987). Return to text.

[261] See supra notes 8, 23 and accompanying text (explaining liti-mediation). Return to text.

[262] See supra notes 214-16, 223-25, 236 and accompanying text. Return to text.

[263] I am grateful to Professor Nancy Rogers for highlighting the importance of attorneys in protecting people less able to protect themselves. Return to text.

[264] See Swidler, supra note 62, at 279-80; Lande, supra note 8, at 224-31. Return to text.

[265] See supra Parts II.A-B for one attempt to define market differences. Return to text.

[266] Local norms for observing mediation vary widely. For example, a California mediator with a busy practice told me that she had never had anyone observe her work and would be very concerned about clients' reactions to having observers in her mediation sessions. This was typical of my mediation community when I was in practice in California. In Florida, where observation is mandated as part of the process for becoming certified, see FLA. R. CERT. & CT.- APPTD. MEDIATORS 10.010(a)(2), (b)(3), (c)(3), having observers is so routine that mediators often simply introduce the observers without seriously inquiring if the participants have any concerns about their presence. Even so, experienced Florida mediators may never see any other mediators' work after becoming certified. At the 1995 annual training session of the Florida Academy of Professional Mediators, one Florida mediator who had done over 1000 mediations realized, after watching someone else do a mediation demonstration, that he had never seen anyone else do mediation since becoming certified and that he was not aware of many differences in styles. Mediators in a given community could create a norm, legitimizing particular observation procedures. Return to text.

[267] See Edward Blumstein & Patricia B. Wisch, Who Nurtures the Nurturer? A Model of a Peer Support Group, 9 MEDIATION Q. 267 (1992). Return to text.

[268] See John Lande, Speaking for Mediation, MEDIATION Q., Fall 1987, at 23, 28. Return to text.

[269] See Mazadoorian, supra note 204 (identifying questions ADR buyers might ask ADR providers); Aaron, supra note 173, at 63 (advising mediators to ask permission before offering evaluations). Return to text.

[270] See supra Part III.C. Return to text.

[271] See supra note 228 and accompanying text. Return to text.

[272] See Lande, supra note 8 (data on file with author). My survey of business lawyers asked how much information about ADR they had gotten from a number of sources, including their graduate or professional schools. On average, the lawyers in the sample had graduated from law school in the mid-1980s. Seventy-four percent said that they received "no information" about ADR from school, eighteen percent said "a little information," and eight percent said "more than a little information." See id. Return to text.

[273] See RONALD M. PIPKIN, FINAL REPORT TO THE UNIVERSITY OF MISSOURI- COLUMBIA SCHOOL OF LAW: PROJECT ON INTEGRATING DISPUTE RESOLUTION INTO STANDARD FIRST YEAR COURSES: AN EVALUATION (1993). Since 1985, the University of Missouri-Columbia School of Law has integrated ADR material into all first-year courses. See id. In 1995, six additional law schools began adapting this model in their curricula under a $180,000 grant from the U.S. Department of Education's Fund for the Improvement of Post-Secondary Education. These schools are at DePaul University, Hamline University, Inter American University, Ohio State University, Tulane University, and the University of Washington. See Press Release from University of Missouri-Columbia School of Law (Nov. 2, 1995) (announcing expansion of dispute resolution teaching program) (on file with author). Return to text.

[274] See supra notes 65, 71-73 and accompanying text. Return to text.

[276] See McAdoo & Welsh, supra note 6, at 10; see also supra note 107 and accompanying text. Return to text.

[277] See Kovach & Love, supra note 9, at 31. Return to text.

[278] See supra notes 46-60 and accompanying text (discussing various goals of mediation. Return to text.

[279] See generally supra Part IV. Return to text.

[280] See generally SOCIETY OF PROF'LS IN DISP RESOL., MANDATED PARTICIPATION AND SETTLEMENT COERCION: DISPUTE RESOLUTION AS IT RELATES TO THE COURTS (1991) (recommending caution in mandating participation in mediation programs); ROGERS & MCEWEN, supra note 3, at chs. 7, 13 (arguing that judges should be prohibited from using economic and time pressures in connection with mediation to increase settlement rates). Return to text.

[281] See Galanter, supra note 30, at 103. Return to text.

[282] See McEwen et al., supra note 23, at 1330-49. I share McEwen et al.'s skepticism about the efficacy of legal regulation to protect principals in mediation and safeguard larger social values of disputing. See Lande, supra note 74, at 44; Lande, supra note 268, at 28-30. Return to text.

[283] See McEwen et al., supra note 23, at 1335 ("[T]he primary virtue of legislating such mediator duties is to instill optimism in the rule-maker or legislator."); cf. Susan S. Silbey, Mediation Mythology, 9 NEGOTIATION J. 349, 350 (1993) (suggesting that guidelines for selecting mediators perpetuate myth of informal, innovative, neutral, and nonauthoritative process and create "false expectations [that] disappoint users and practitioners of mediation alike"). Return to text.

[284] For example, while I endorse the notion that "[n]egotiations in family mediation are primarily conducted by the parties," FLA. STAT. § 44.1011(2)(d) (Supp. 1996), and I even think that it is useful to include this statement in statutory language, we should not expect that this alone will make it so. Return to text.

[285] See Lande, supra note 74, at 44; Lande, supra note 268, at 28-30. Return to text.

[286] Andrew Abbott argues that the jurisdictional boundaries limiting the professional activities of particular professions often shift over time in relation to the activities of "neighboring" professions. See ANDREW ABBOTT, THE SYSTEM OF PROFESSIONS: AN ESSAY ON THE DIVISION OF EXPERT LABOR 33-113 (1988). Return to text.

[287] The ideas regarding the broader research agenda grew, in part, from my dissertation research. I am grateful to my committee, especially the chair, Mark Suchman, for nourishing these ideas. I also want to thank the participants at a faculty seminar of the Program on Negotiation at Harvard Law School in May 1995, who contributed some of these ideas. Return to text.