A Brief History of Mediation

I. Antecedents

Popular dissatisfaction with the administration of justice was at a fever pitch by the end of the 19^th century.  This dissatisfaction was expressed in the rejection of natural law, the acceptance of legal realism, and the conclusion that the work of the legal system - in what had become in the eyes of Americans a collectivist industrial society rather than an individualist frontier society - was social engineering.  Perhaps the most influential expression of this dissatisfaction was an address given by Roscoe Pound to the ABA in 1896, which dealt explicitly with those themes.  Pound, Dean of the Harvard Law School from 1916 to 1936, looked forward to a scientific study of the law which would lead to deliverance from the sporting theory of justice.

The segment of society which suffered the highest fever as a result of this dissatisfaction was the industrial working class.  Since their appearance unions had been considered illegal labor monopolies by the common law and strikes had been broken by court injunctions.  The legal system was perceived to be the enemy.  Gradually the right to unionize and bargain collectively was legislatively realized, the courts went out of the strike-breaking business, and mediation became the mechanism to forestall breakdowns in collective bargaining and to maintain peace between capital and labor.  Most crippling industrial strikes were thereby avoided, and those that could not be avoided were ended by mediation.  This broad historical development is generally referred to as America's adoption of a National Labor Policy, whose apparent success turned it into conventional wisdom unquestioned in any quarter until the bankruptcies of GM and Chrysler.

Mediation the leading alternative to Courtroom Litigation

For several decades mediation made little headway outside the US Department of Labor.  Instead arbitration was the front runner as the favored candidate for alleviating the country's dissatisfaction with its legal system.  However in the 1970's mediation began to challenge arbitration for the role.  This appears to have been the result of a convergence of three factors: first, the successful advocates of our National Labor Policy for industrial labor turned their attention to the rest of the countrys work force; second, the civil rights movement focused the country's attention on the denial of legal rights to racial minorities; and third, the legal system became convinced that it was about to drown in a tidal wave of litigation.  The most important result of this convergence was a scholarly conference in 1976 in honor of Roscoe Pound called by Attorney General Griffin Bell to address the same dissatisfaction Pound had voiced 80 years before.  This conference marked the beginning of the ascendance of mediation as the leading solution to dissatisfaction with our legal system.

II. ADR Milestones

! 1838 - President Martin Van Buren facilitates a settlement of a strike by shipyard workers, the first government mediated labor settlement in America.

! 1902 - President Theodore Roosevelt mediates settlement of the anthracite coal strike.

! 1906 - Roscoe Pound speaks to the ABA convention on The Causes of Popular Dissatisfaction with the Administration of Justice.

! 1918 - War Labor Board established to prevent strikes in defense industries during WWI handles 1,200 cases.

! 1918 - The federal mediation function is born with the creation of the U.S. Conciliation Service under the Department of Labor.

! 1926 - Railway Labor Act establishes a National Mediation Board with jurisdiction over the railroad industry.

! 1926 - American Arbitration Association (AAA) founded.

! 1932 - Norris/La Guardia Act passed to limit the power of Federal courts to issue injunctions in labor disputes.

! 1933 - National Industrial Recovery Act passed/National Labor Board (NLB) created by FDR under the Act to mediate labor disputes.

! 1935 - National Labor Relations Act (Wagner Act) becomes law, NLB becomes NLRB.

! 1941 - National War Labor Board established to prevent strikes in defense industries during World War II.

! 1947 - Taft Hartley Act creates the Federal Mediation and Conciliation Service (FMCS) as an independent agency of the U.S. government.

! 1961 - California arbitration statutes are added to CCP, including petition to confirm awards as judgments.  Note: mediation settlement agreements cannot be similarly confirmed by petition but must instead be enforced as ordinary contracts unless they are made in the course of a pending action, in which case they are enforceable by motion under CCP 664.6 if they are in writing and signed by the parties.

! FMCS officially enters the alternative dispute resolution arena.

" 1975 - Congress passes Public Law 93-531 directing the Service to mediate a 100-year old land dispute between the Hopi and Navajo Indian Tribes in Arizona.

" 1978 - Congress extends the FMCS charter to mediate disputes beyond the private sector to the Federal government and again in 1979 to the U.S. Postal Service.

" 2004 - Director Hurtgen mediates an end to the 141 day Southern California grocery strike, the longest in the industry's history.

" 2008 - Director Rosenfield oversees five days of mediation in Washington, D.C. to end a 52-day national strike by members of the International Association of Machinists and Aerospace Workers against the Boeing Company.

" FMCS budget for 2007 $7,778,000, for 2008 $9,096,000.

" 2009 - 10 District Offices, 69 Field Offices."

! 1976 - California adopts initial rules of court for judicial arbitration, Rules 3.810 et seq.

! 1976 - Roscoe Pound Conference of legal scholars convened by Attorney General Griffen Bell in response to an urgent need for alternatives to litigation, thought to be on the verge of engulfing the judicial system at both federal and state levels.

" The Conference produced two divergent mediation approaches, Harvard Law School Professor Frank Sander's Multi-door Courthouse concept, and The Neighborhood Justice Center."

" The Multi-door Courthouse envisioned different alternatives for resolving disputes available to aggrieved parties as they entered courthouse, main choices or doors being traditional litigation, arbitration, or mediation.  Arbitration and mediation stayed within the institutionalized judicial system.

" The Neighborhood Justice Center envisioned arbitration and mediation escaping from the institutionalized judicial system that had supposedly distanced itself from ordinary people who could not afford it."

! 1980 - Congress passes Federal Dispute Resolution Act calling for nationwide ADR programs administered by Justice Department but fails to follow through with necessary funding.

! 1986 - California passes Trial Delay Reductions Act establishing Fast Track pilot programs in five counties.

! 1986 - California passes Alternative Dispute Resolution Act, B&P Code Sec. 465 et seq., and funding for mediation programs becomes available.

! 1992 - Fast Track goes state-wide.

! 1993 - California passes Civil Action Mediation Act establishing a mediation pilot program for Los Angeles County which may be adopted by other counties.  CCP 1775.1 defines mediation as, a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.  The Act remains the statutory basis for mediation programs.

! 1994 - Judicial Council adds pilot project mediation rules to Rules of Court, now Rules 3.870 - 3.898.

! 1997 - California adds Chapter 2, Mediation, to Part 9 of the Evidence Code, in part establishing confidentiality of mediation proceedings, Sections 1115 - 1128.

! 1998 - Congress passes federal Alternative Dispute Resolution Act extending mediation from federal appellate courts to federal trial courts.

! 2003 - Judicial Council adds general rules for mediation in civil cases to California Rules of Court, now Rules 3.850 - 3.858.  Additional rules added in 2006.

III. Conclusion

The Neighborhood Justice Center concept as such did not blossom but seems to have contributed to the growth of activist community organizations like ACORN (Association of Community Organization for Reform Now).  On the other hand the legal system gradually absorbed and transformed the Multi-Door Courthouse concept, with statutory law and rules of court giving definition to ADR procedures and providing devices to divert litigants to mediation or arbitration.  Two devices are now so commonplace as to be quite unremarkable: the Notice to Litigants/ADR Information Package issued with each summons, which all of us are supposed to share with our clients, the Case Management Statement, and the Case Management Conference itself.  The mediation movement now boasts dozens of journals and magazines as well as its own lobbying organization. Meanwhile arbitration appears to have lost ground to mediation, becoming no less rule bound, expensive, and time consuming than resolution by court trial.  This appears particularly true of AAA arbitration.

At the same time The California Association of Realtors has pioneered contractual encouragement of mediation by including provisions in its standard form of Purchase and Sale Agreement requiring mediation and imposing a penalty on a party who refuses: loss of attorney fees the party would otherwise be entitled to if the party prevails thereafter in an arbitration or lawsuit.  This writer predicts that this kind of approach - it's only voluntary but if you don't do it you may regret it - will in the near future be imposed upon all litigants by statute.

Lastly, a semi-philosophical observation on mediation.  Legal theory has moved from natural law through Benthamite legal positivism to legal realism based on sociology, political science, and cultural anthropology, three disciplines belonging in the eyes of their practitioners to the sciences rather than the humanities.  Perhaps as a result the literature on mediation seems generally to avoid overt references to old-fashioned humanist concerns about justice.  Instead there seems to be a universal assumption derived from legal positivism that the process must ipso facto produce just, fair, and legitimate resolutions by virtue of the simple fact that the parties reached agreement - we need inquire no further.

From the social engineering perspective of legal realism the conclusion is similar.  Now that we have divorced law from morality we need only ask if mediation solves the perceived malfunction in the social machinery.  From the judicial system's perspective in the 1970's and thereafter the problem was an oncoming tsunami of litigation which would paralyze the courts and exacerbate to an intolerable degree the popular dissatisfaction with the administration of justice, which was already dangerously high a century ago when Roscoe Pound spoke to the ABA.  Mediation seems to have solved that problem, so again by definition it must be good.

On the other hand it is difficult not to be troubled by a process that is admittedly amoral and whose product can only be dignified as lawful because it produces a supposedly voluntary agreement, particularly when experience teaches that such an agreement is virtually mandated by two uncomfortable propositions: first, that it is impossible according to judges themselves to predict how a judge will rule; and second, that the parties lack the financial means to find out within the judicial system.

Stanley D. Prowse is a Certified Mediator and a Civil Litigation Attorney practicing in the greater San Diego area.