Ana səhifə

William goldman

Yüklə 339.18 Kb.
ölçüsü339.18 Kb.
1   2   3   4   5   6   7
*236 exists and their willingness to solve the problem and reach an agreement. A reluctant spouse can derail the process.

Mediation is not a magic solution for all family disputes, tortious or non-tortious. There are concerns over the conduct of the proceedings. For example, the proceeding may exacerbate existing power gaps between the litigants.122 Mediation is particularly problematic in instances of domestic violence, as the model of mediation presumes an equal balance of power between the parties. Domestic violence, on the other hand, shifts the balance of power in favor of the aggressor-spouse by lessening the other spouse’s feeling of self-worth.123 In addition, where one party’s bargaining power has been damaged, the mediator’s ability to find a balance between the parties may also be affected.124 The victim of domestic violence may not possess the ability to make a decision that is free of coercion, and thus mediation may actually work to his detriment.125 However, even in instances of domestic violence, if clear boundaries are established and the mediator takes steps to manage the balance of power, mediation can enhance the victim’s security and serve as a fitting alternative to the courts.

3. The Court’s Ability to Mandate Mediation

The advantages of mediation proceedings have led both state and federal courts in many states to adopt a kind of court-referred mandatory mediation proceeding. This process was resisted at first, due to the early 20th century conception that “[t]he jurisdiction of our courts is established by law, and is not to be diminished, any more than it is to be increased, by the convention of the parties.”126 Later, however, the system began to recognize the choice of the parties to resolve disputes by alternative means. The acceptance of alternative forums was gradual, beginning in the 1920s when legislators began to recognize the limited ability of the courts to promptly and justly consider all disputes. The institution of arbitration appeared as a *237 practical alternative to litigation in court,127 leading to the enactment of a federal arbitration law in 1925.128

In the 1950s, as the profession of mediation developed, limited judicial use of mediation began as a way to solve minor disputes in family and criminal matters.129 Alternative dispute resolution (ADR) proceedings gained popularity in the late 1960s as a solution to the overburdened case load in the court system and delays in litigation.130 Local communities established neighborhood justice systems as an alternative means of solving disputes between neighbors, between consumers and sellers, between tenants and landlords, and between family members.131 In addition, various organizations across the United States established committees to examine the orderly application of ADR proceedings within the legal system.132 In the 1970s, the process acquired additional impetus. 1976 saw the Pound Conference on the Causes of Popular Dissatisfaction with the Administration of Justice. This conference included the first serious discussion of the possibility of applying ADR within the American legal system.133 Many see it as the event that launched the modern ADR movement.134 Over the next few decades, the use of ADR has grown. Even the Supreme Court has begun to display sympathy toward the idea.135

Early jurists saw ADR as a way of reducing the court’s docket. Litigators saw it as a mechanism that reduced costs and allowed for quicker determination of issues that did not raise new legal questions. Social lawyers rejoiced at the opportunity to resolve the disputes of those who could not afford ordinary litigation.136

*238 Today, court-referred ADR exists in the United States on both the federal and state levels. Rule 16 of the Federal Rules of Civil Procedure, enacted in 1938 and amended a number of times since, regulates the Pretrial Conference, which allows the court to require the parties’ attorneys or unrepresented parties to appear for one or more hearings in a court-referred proceeding.137 The purposes of the Pretrial Conference are set forth in paragraph (a):

Purposes of a Pretrial Conference. In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences for such purposes as:

(1) expediting disposition of the action;

(2) establishing early and continuing control so that the case will not be protracted because of lack of management;

(3) discouraging wasteful pretrial activities;

(4) improving the quality of the trial through more thorough preparation; and

(5) facilitating settlement.138

The rule proceeds to detail various procedures. Rule 16 served as a basis for the first application of mandatory ADR. Federal courts found in this rule the authority to require the litigants to turn to an ADR process, although the rule did not require them to reach agreement.139 In 1990, Congress passed the Civil Justice Reform Act,140 which was also a milestone in this area but which is no longer in effect.141

*239 In 1998, Congress enacted the Alternative Dispute Resolution Act.142 This is today the most comprehensive of all the laws dealing with the subject. Its purpose was to present innovative ways of solving disputes and advanced methods that would lead to greater efficiency.143 One of its goals was to reduce the backlog of cases in the federal courts.144 ADR is defined in the Act as follows:

For purposes of this chapter, an alternative dispute resolution process includes any process or procedure, other than adjudication by a presiding judge, in which a neutral third party participates to assist in the resolution of issues in controversy, through processes such as early neutral evaluation, mediation, minitrial, and arbitration as provided in sections 654 through 658.145

The law empowers the federal district courts to refer parties, under local laws, to ADR programs (including mediation, early neutral evaluation, minitrial, and arbitration) which are to be set up in the states. ADR should be available for all appropriate instances of civil complaints, with the inappropriate cases excluded from such proceedings following consultation with the specific bodies listed in the law.146 Parties may be required to participate in mediation or early neutral evaluation.147 The law also includes a provision making such proceedings privileged and protecting the privacy of the participants.148 This provision is particularly relevant to mediation because the whole process is directed by a party who is not part of the legal system.149

The influence of the federal law on the state courts is only indirect. If federal courts limit the use of the ADR statute, the use of ADR in state courts will likely be limited as well.

In addition to the federal statutes, there are laws in various states that allow the state courts to refer the parties to ADR. In states including Alabama, Delaware, Florida, Indiana, Louisiana, *240 Maine, Minnesota, Montana, Nevada, and North Carolina, state legislation allows the courts to require the parties to participate in mediation.150 Mandatory mediation is typically used in certain areas of law,151 including family law,152 labor law,153 bankruptcy,154 and medical negligence--but not tort law in either the general or the family context.155

4. Mandatory Mediation in Intrafamilial Claims

Mandatory mediation, like mediation in general, has many advantages. It has been suggested that mediation has a positive influence on society, as it causes society to be more accepting of bargained dispute resolution and to have more faith in the results.156 Empirical studies indicate that most of the participants in mandatory mediation are more satisfied than those whose cases were determined in court.157 Studies have also shown that the mandatory nature of mediation has no influence on the likelihood of reaching agreement; there is almost no difference in rates of settlement between voluntary mediation and mandatory mediation.158 The parties usually understand that the court, which sends them to mandatory mediation, is in fact working for their benefit.159 In addition, involvement in the proceedings generally has a positive influence on the parties’ relationship. Mediation is based on the consent of the parties. The adversarial method has the nature of a conflict and as a result may ultimately leave relations between the parties scarred. Hence, parties who expect to have some future interaction (something that is *241 obviously very relevant to the issue at hand) may profit from the mediation proceedings, because these help preserve future relations.160 Indeed, the mediation process requires cooperation and as such may also serve as a role model for future interactions between the couple, which is particularly important when the couple has children together.161 Mediation also involves negotiation with concessions and achievements. Each party gives up on what it sees as less important, in exchange for receiving what it perceives as more important. Unlike the typical legal proceeding, the outcome of mediation does not yield a “winner” or a “loser,” for each side in a mediation feels that it has achieved something.162 Moreover, mandatory mediation does not infringe on constitutional rights, because the parties still have the right to litigate; at most, the right to litigate is merely postponed.163

However, sending parties to mediation as a mandatory matter may still be problematic or ineffective, since mediation is supposed to be, at its core, voluntary. Coercion may cause mediation to lose many of its advantages. Moreover, forcing the parties to attend mediation could cause parties to develop an antagonistic attitude toward the proceeding, due to its being forced upon them. Both parties may feel that they would fare better in court, as mediation often requires concessions and compromise. On the surface, the parties, the court, and society have nothing to lose from an attempt at mandatory mediation or therapy, since the default in any case is a return to litigation. But there may be something to the view that requiring this extra step could, in certain instances, actually deepen the rift and exacerbate ill feeling between the parties. The extrajudicial proceeding may uncover or even reinforce power gaps between the parties. The defendant may push for a compromise and be very influential through rhetoric and body language.164 Nevertheless, extrajudicial proceedings can counterbalance worries about power gaps because they can *242 provide the weaker party a balanced forum where such power gaps are obscured or reversed.165

Success of the mediation process (whether mandatory or voluntary) depends on the willingness of the relevant parties to participate in the process in a meaningful way.166 There is concern over implicit coercion to compromise; such coercion undermines the whole purpose of mediation because the agreement is no longer the sole product of the party’s deliberation.167 Of course, such coercion may also exist in legal proceedings, but it may be more dangerous in mediation because of the power gaps between the parties and the seeming neutrality of the process. However, mediation can temper coercive outside influences through promises made by the parties--both in writing and orally--that, although they are required to participate in the mediation process, they are not required to compromise. In addition, mediators can alleviate outside influences because they are forced to follow a clear code of ethics under which any undue pressure on the parties would be forbidden.168

Moreover, there is the concern that mediation under court auspices may become too similar to the legal proceedings themselves; that is, such mediation will adapt in various ways to the values and *243 norms of the court system. Similarities in the processes are enhanced by the fact that mediation takes place within court buildings and that the mediation panel often sends formal notices, collects filing fees, and uses legal language in the mediation framework.169 Another similarity between the legal system and mediation is the perception that mediators are assessed or assess themselves by the number of files they have closed; many litigants perceive that the real purpose of mediation is purely case processing.170 Some of these problems can be solved with an approach that gives the mediation process a separate identity. For example, at least part of the mediation process could be carried out at a location other than the court, and those mediation sessions held in the court building could take place in a room designed to elicit a warmer feeling.171 The mediator should encourage flexibility in the process. Topics for discussion can extend beyond purely legal aspects, and the mediator should encourage the parties to tell a “human” story regarding their dispute, rather than a legal one.172

Some argue that the courts have too broad discretion regarding whether to mandate participation in mediation.173 Because this feeling is widely held, it is not surprising that proposals made over the years for mandatory mediation have been perceived as problematic from the perspective of the principles underlying dispute resolution methods, and that some states still do not have court-referred mandatory mediation. If the process is not done voluntarily and willingly, not only is it technically difficult to bring the parties to participate in this process, but it is extremely difficult to expect that they will ultimately reach a satisfactory arrangement. On the other hand, the legal process is not a voluntary one; the defendant must appear and play his role on the court’s stage. Although an extrajudicial process may be very helpful and has many advantages compared to the legal process, mediation is not always successful, and no mandatory *244 obligation to participate will alter the reality that mediation does not have a one-hundred percent success rate.

In addition, one cannot ignore the autonomy of the plaintiff and his right to sue for a legal remedy. In this respect, mandatory mediation may abridge individual rights. The right to sue is a derivative of the individualistic approach that realizes an individual’s ability to choose among various options. In our liberal age of human rights, it is problematic to adopt a paternalistic approach that determines in advance what is good for the plaintiff, by blocking his claim and de facto referring the claim to an extrajudicial channel where it is uncertain whether his case will be rightfully resolved. Not everyone will accept the argument that the right to sue has merely been postponed, not extinguished. However, the argument that mandatory mediation abridges the individual right to sue is overstated, because the result of mediation need not be followed, and one can always return to litigation.

Thus, a voluntary extrajudicial process may be quite appropriate in family disputes because it allows access to the remedies in which the victim is really interested. However, there is no way to force the tortfeasor to participate, and even if such a possibility existed under the law, such a process would not be effective. As opposed to the voluntary extrajudicial process, the mandatory legal process is one-sided, for only the plaintiff wishes to open proceedings, while the defendant may not. The legal process is also limited as to what remedies it offers, and it is not sufficiently sensitive to the delicate intrafamilial relations. Hence, both mandatory mediation and the unfettered legal process are problematic, as is blocking the claim by creating immunity. Therefore, it is necessary to find an integrated solution that, on the one hand, preserves the possibility of referral to mediation or therapy, in light of the nature of the relationship (according to the family approach), but that on the other hand preserves the power of the plaintiff to win a remedy should the extrajudicial process not be successful (in line with the individualistic approach). The rationale underlying such a proposal must be the preservation of the court’s authority and oversight of the process. The proposal must, therefore, tread the fine line between the impossibility of forcing the parties to participate in an extrajudicial proceeding and the problems of a purely legal hearing.

*245 5. Mediation and the Goals of Tort Law

On the surface, the proposal to require mediation appears to belong to the “family” aspect of the dispute and not to the “tort-individualistic” aspect. However, mediation is not completely outside the goals of tort law. In the specific circumstance of tort litigation against a spouse where the real remedy sought is not compensation, referring the parties to therapy or mediation, even as a mandatory step, complements the goals of tort law in a manner that is not artificial. As seen below, mediation can help achieve the four goals of tort law: compensation, corrective justice, distributive justice, and deterrence.

At first glance, it appears that the goal of compensation is not achieved if the outcome of mediation or therapy is an agreement without compensation. However, the real remedy sought in many familial tort cases is not necessarily an award of monetary value. Hence, if the court can bring the parties to an agreement that may not include full compensation or any monetary compensation at all, but that does include the desired remedy, then mediation would be consistent with the goal of compensation.174 In such cases, the real compensation for the injustice is not monetary, and the law assists the plaintiff in obtaining the real remedy that he seeks. Non-monetary forms of compensation are consistent with tort law, which even in formal legal proceedings sometimes provides other relief such as nuisance abatement orders, injunctions, privacy protection orders, orders against the distribution of publications that may contain defamatory statements, apologies, retractions, or corrections post facto.

Mediation can also achieve corrective justice by providing the injured party with a remedy that meets his true motivation for the tort suit, monetary or not. The goal of corrective justice does not solely involve money; it has aspects of fairness175 and the need for appeasement between the parties.176 The tortfeasor will perhaps have a better understanding of the injustice of his actions through mediation. The tortfeasor is also more likely to take responsibility for his actions and can promise as part of the agreement that he will cease his tortious activity (in the case of an ongoing tort) and will
1   2   3   4   5   6   7

Verilənlər bazası müəlliflik hüququ ilə müdafiə olunur © 2016
rəhbərliyinə müraciət