The Ohio State University Moritz College of Law March 2010
ADR @ Moritz

Mediation: How Judges Should Be Involved

Kevin OlesBy Kevin Oles
Class of 2010

The Ohio State Journal on Dispute Resolution symposium, “Codifying Mediation 2.0,” recently held on February 5 of this year considered the legal codes and informal practice governing the use of dispute resolution in the courts. The Federal Rules of Civil Procedure standardized the process of litigation, creating an orderly procession to litigation, from filing the lawsuit, through discovery, and available pre- and post-trial actions. However, despite the regimented process the Federal Rules imposed, parties still had significant leeway to adapt the litigation process to their individual needs. Alternative dispute resolution, especially mediation, settled into the “cracks” in the Federal Rules—helping disputants shape the end of their lawsuit as they similarly shaped the litigation process.

The use of dispute resolution to assist in the settlement and resolution of lawsuits is essential, especially because most lawsuits resolve without trial (most statistics place the number of lawsuits that reach trial around 2 percent of the total number filed). As a result, few disputants will ever see a jury. Concurrently, the judges presiding over these lawsuits have highly tangible interests in the manner by which disputes before them resolve. Cases that might modify, clarify, or change laws—if resolved without trial or legal judgment—might not add to the positive development of law if they did reach final adjudication. Moreover, anecdotal and statistical evidence support the notion that judges are often involved in settling disputes. However, the Federal Rules do not define the role a judge plays in assisting or effecting settlement, mentioning only that judges help adjudicate disputes (i.e. through summary judgment). Therefore, the looming question of the symposium was that, given the current court rules, practices, and legal codes, what reforms are necessary to harmonize everything, creating a system that maximizes the efficacy of dispute resolution without devaluing the litigation process?

While the symposium participants discussed possible rules, changes to local rules, and the interests at stake in effecting changes, I found that there were two large, interesting issues that were briefly touched upon by participants: how comfortable are we with a judge’s involvement in dispute resolution and settlement; and should dispute resolution be institutionalized in court processes?

First, how much involvement should judges have in dispute resolution? As I consider this question, I see a fundamental disconnect between a judge as impartial decisionmaker and a judge as a mediator who approaches parties’ interests and needs while attempting settlement. Consider the likely problem that arises when a judge is asked to wear both “hats:” the judge hears confidential and personal information about party interests, yet later must rule on the legal merits of the dispute in summary judgment. It would be difficult for any individual to merely focus on legal merits and ignore party interests—however, any deviation from a purely legal determination would both create bad precedents and diminish the judge’s prestige. It is logical that judges should not engage in extensive dispute resolution of their own cases. Significant judicial involvement in dispute resolution is very different than asking parties if they are interested in settling, or fact gathering to determine the possibility of settlement. In fact, the Uniform Mediation Act contains privileges that screen the mediator and their mediation experiences from presiding judges, it seems reasonable that judges should be distanced from information divulged during dispute resolution processes.

The second issue—the institutionalization of dispute resolution, certainly reflects the valued place that dispute resolution holds in litigation. However, mandating that all civil litigation cases must go to a dispute resolution process before some other step in the litigation process (i.e. discovery) is simply a bad rule. Some disputes are easier settled once parties have an opportunity to discover more information about the case. Other disputes, however, have far simpler facts and are more about party emotions and creating a zone of agreement, thus there is no need for discovery to assist dispute resolution. Moreover, some disputes like statutory interpretation cases or constitutional claims simply have no place in interest-based dispute resolution. Judge Sandra Beckwith, a federal judge for the Southern District of Ohio, proposed the seed for what appears the most reasonable method of ensuring “ripe” cases reach dispute resolution—allowing a judge, upon her individual discretion, to send cases to mediation. Of course, giving a judge the power to refer cases to mediation requires training them in some of the art and science of dispute resolution so that they can “separate the wheat from the chaff.” However, dispute resolution would be best embraced as an equal and important part of the litigation process if judges control the manner, method, and time of entry. As such, codifying a rule that empowers judges to order dispute resolution during litigation, but also carries procedural guards such as staying proceedings during dispute resolution, will create the best marriage of promoting dispute resolution while respecting the individuality of each dispute. As for the exact language or content of the rule, that appears best left to the learned symposium participants.

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The Caucus, the newsletter published by the Moritz Program on Dispute Resolution, is designed to share ADR news with the Moritz community and beyond, as well as provide Moritz students with information regarding externship and employment opportunities. Questions regarding this publication should be directed to Erin Archerd, Langdon Fellow in Dispute Resolution.