Mediation is voluntary. Even if you have agreed to mediate before arbitrating or litigating, a judge can’t order you to mediate if you change your mind. On the other hand, if your arbitration agreement gives attorney fees to the winner in arbitration or a lawsuit, it may also take the fees away if the winner has refused to mediate first. The ubiquitous California Association of Realtors residential purchase and sale agreement form has worked that way for decades.
The mediation process in one form or another has been around forever. A mediator does not decide a case and make a ruling. Instead mediators, like village elders, help parties with dispute resolution through peacefull means by mutual agreement. In the 1960's mediations proponents thought of it as a warm and fuzzy way to give the urban poor, who could not afford the civil judicial system, access to rough justice through the mediation process.
It did not turn out that way. Instead the mediation process became institutionalized in the 1980's, when the judicial system appeared threatened by a tidal wave of litigation. Lawyers co-opted the flower children by offering a plethora of mediation services, so now it’s hard to tell the difference between mediation and a judicial settlement conference. The pitch is unappetizing, but realistic: you can’t tell how a judge will rule, and you can’t afford to find out. the mediation process may work in most cases, but whether the results are fair or legal is an open question. If the mediation process doesn’t work, the parties can agree to arbitrate or litigate.
If the parties have a written arbitration agreement, a judge can order them to arbitrate, which can be binding or non-binding. The arbitrator does decide the case and does make a ruling, called an Award. If the parties have agreed to binding arbitration, the winner can easily turn the Award into an enforceable court judgment, which cannot be appealed. But if they have agreed only to non-binding arbitration and one party refuses to abide by the Award, it’s unenforceable and useless. Most arbitrations are therefore binding arbitration.
When the American Arbitration Association was formed in 1926, the arbitration process was supposed to be cheaper and faster than litigation. The parties choose the arbitrator, who doesn’t have to be a lawyer or a judge, and the rules of evidence used for court trials need not be followed. However, arbitration has gradually developed its own thicket of rules and procedures rivaling those of the courts, so its superiority to the judicial process is often questionable. Nonetheless the arbitration process remains a thriving business in the private sector. It also thrives in the public sector as a mandatory service provided by the federal government to resolve labor disputes.
If the parties cannot come to a binding arbitration agreement, they are left with the courts and lawsuits. If you think of The Law as a set of rules producing predictable results under similar circumstances, so that who’s right and who’s wrong should be obvious, you are in for an unpleasant surprise if you find yourself involved in litigation. Decades ago the idea was to narrow the relevant facts as much as possible, so that the applicable rule would be readily found. Typical judicial opinions were only a few pages long. Our present pursuit of perfect justice has turned this scheme upside down. Judges want to hear about every fact that could possibly have any bearing on the outcome, and lawyers are happy to oblige them. Typical judicial opinions are now dozens of pages long. Consequently each case produces its own rule - which produces the paradoxical result that there are no rules or predictable results.
Perfect justice has yet to be found. What we have may have drawbacks, but it seems to be preferable to any alternative available anywhere else. Grin and bear it!
Stanley D. Prowse provides Certified Mediation Services and Civil Litigation, practicing in the greater San Diego area.