Tuesday, May 31, 2011
Here’s an excellent piece by Stanley Lubman on recent trends in the court system: in brief, judges are being urged to mediate instead of adjudicate.
The push to mediation seems to be based on an entirely untested, unproven, and intuitively dubious premise: that a mediated compromise outcome results in greater social harmony than an adjudicated outcome. Sure, the party that would have gotten less in adjudication will be feeling good, but the party that would have gotten more in adjudication won’t be feeling very harmonious, I’ll wager.
On the question of “how would they know?”: Remember that what’s being proposed here is a change in policy. Therefore, (1) some parties will have some sense of what they might have gotten under the old policy, and (2) those that don’t will have to be kept in ignorance of what they might have gotten before the government decided to make adjudication more costly, and deliberate obfuscation doesn’t seem to me to be the basis of sound social policy.
One can see the push to mediation as being win-win in one situation: where the relative cost of mediation versus litigation is achieved by lowering the cost of mediation instead of raising the cost of litigation. Parties move toward mediation through a carrot instead of through a stick; nothing to object to there. But I do wonder whether this is how increased mediation rates are actually being achieved.