The steadily rising costs of litigation, and the current backlog on civil dockets, have borne out what one of the most effective American trial lawyers of an earlier generation observed: that in litigation, “the nominal winner is often a real loser – in fees, expenses, and waste of time.” Correspondingly, over the past twenty years the U.S. mediation market has matured steadily, with the pandemic, and the widespread use of video technology in online dispute resolution (ODR), now galvanizing the process.
So how do we continue this momentum, and move the use of mediation to its next level in frequency, prevalence, and reliability? We are at a point in the dispute resolution community where we can and should start accelerating the creation and adoption of more uniform standards for mediation, nationally and even internationally.
One legislative initiative winding its way around the country should help. The Uniform Mediation Act is a model act from the National Commissioners on State Law. Through its eventual adoption in some form in all states, the Mediation Act’s main goal is to harmonize key protections and procedural aspects that are part of the mediation process.
This objective is important because mediation is increasingly crossing state lines, in terms of the mix of participants, mediators, and seats, including virtual. In a recent trademark infringement dispute I handled, the corporate parties were based in two different states in the Southeast. Because counsel for both parties identified erosion of trust, and vastly different views by the parties of fundamental aspects of the case; we decided to mediate and to seek out, as a mediator, an experienced federal judge with a great deal of intellectual property experience. It so happened, with that the mediator we selected was a retired chief judge from the Midwest. Had we been limited to only local mediators in one of the parties’ jurisdictions, because of some initial mistrust, a mediation might not have been scheduled. We conducted a successful mediation over several days by Zoom, memorializing the terms of a final settlement in writing.
This scenario is will only become more common in this dawning era of online dispute resolution; it is now easier than ever to conduct a search for the best-suited and qualified mediator on a national basis, and the to conduct the mediation virtually, untethered to a particular state locale. And because of this multi-state aspect, once the settlement agreement is implemented, there will be instances in which unclear questions arise. What is the scope of protected communications under a mediation privilege, and the rules of confidentiality? Absent a choice of law clause, which state’s law applies? Where does a party go to enforce the agreement? If there is an effort to obtain privileged mediation communications from a party or mediator, how and under what principles will it be handled?
Those are the questions the Mediation Act is intended to address. It covers officially-initiated mediations like agency and court referrals, party agreements to mediate, and mediations by organizations and persons holding themselves out as mediators. It defines and establishes the mediation privilege and testimonial immunities; prohibits certain disclosures, including mediator reports to decisionmakers, and after defining certain potential conflicts of interest, requires their disclosure.
Right now, those issues are handled on a state -by-state basis in a way that is not always uniform.
In Section 11, the Mediation Act takes up international commercial mediation, applying (unless the parties agree otherwise, in which case the Model Act will apply), the 2018 UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation. The UNCITRAL Model Law was the basis for the recently effective Singapore Convention — and as we’ve also pointed out in this blog, the executive branch will need to decide how to approach the Singapore Convention, whether as self-executing or as requiring legislation. Since the Convention would override any inconsistent portion of state law pertaining to international settlement agreements from mediation, it would make sense for the state legislatures to either leave out that portion of the model law or, where it has already been adopted, review and revise as necessary to make sure their provisions are not in conflict or redundant.
The legislative process is still in the early going: Twelve states have enacted the Mediation Act so far, and it has been introduced in two others in 2020. In addition to Massachusetts, here in Georgia, the Mediation Act was almost adopted here in Georgia in our 2020 session, and will hopefully reintroduced (2021 marks the start of a biennial session for the Georgia General Assembly, such that prior bills will not carry over) and then signed into law in the coming year.
We should all take an active interest in pushing the legislative process forward in our respective jurisdictions. If you haven’t already, check with your local bar to see where the Mediation Act stands in your state’s own legislative process and if you’re so inspired, how you might assist in advocating for the Act’s adoption.
It’s to our clients’ benefit that mediations occur more frequently, and earlier in our cases. Initiating mediation does not have be a last-resort — and in many cases, yields more benefits early on — and it does not have to be court ordered. I’ve been pleased in recent years to see more and more lawyers rejecting the outmoded thinking that even raising the topic of settlement, let alone mediation, is a sign of weakness. For many of our cases, indeed most of them, the net economic outcome, factoring in just the litigation dollars spent, is going to favor an early settlement.
This doesn’t mean an end to litigation. Plenty of dispute are going to need to be tried. Did you recognize the trial lawyer I mentioned earlier, a savvy attorney who maintained an active litigation practice in Illinois right up to his election as commander in chief. In considering mediation, it’s worth reviewing in full what President Lincoln, then lawyer Lincoln, had to say on the topic: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
Indeed — let’s continue in earnest to advance the good work of mediation.