D e m o c r a c yi s s u e s o f

E L E C T R O N I C J O U R N A L S O F T H E U . S . D E P A R T M E N T O F S T A T E

D E C E M B E R 1 9 9 9

V O L U M E 4 N U M B E R 3

M E D I A T I O N

A N D

T H E C O U R T S

IT IS A PROBLEM in most parts of theglobe—the increasing expense of litigation andovercrowded court dockets. Various measureshave been adopted to deal with this situation in the United States and elsewhere. One of the most important is mediation, sometimesreferred to as alternate or alternative disputeresolution. There are various forms of media-tion, but typically the procedure involves a con-sensual, out-of-court settlement that is muchless costly and time-consuming than cases sentto trial.

The proponents of mediation, however,advocate the procedure not only because iteases court backlogs but also because it servesthe interests of justice in and of itself, mostsaliently some types of civil disputes—every-thing from family disagreements to ethnic strife.In recent years, mediation—court-supervisedmediation in particular—has become more commonplace in the United States and, in many

states, the procedure is becoming increasinglystandard practice.

This journal looks at mediation in generalas well as the various trends that may accountfor its growing popularity. In the opening arti-cle, Hiram Chodosh, a law professor and direc-tor of the Frederick K. Cox International LawCenter at Case Western Reserve UniversitySchool of Law, explores the diverse features ofmediation and how it can be tailored to meet theneeds of nations with widely different culturesand traditions.

Robert A. Goodin, president of the board of directors of the Institute for the Study andDevelopment of Legal Systems, deals with prag-matic questions in his overview article on medi-ation. He looks at the specifics of the processand shows how it has reduced the burden ofexpensive litigation in the U.S., a country inwhich the costs of justice have skyrocketed inrecent years.

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F r o m t h e E d i t o r s

Mediation and the Courts

Mediation is becoming increasingly prev-alent in the United States both in the private sector and the public sector, as well as in courtsystems at various levels of government. PeterR. Steenland, Jr., senior counsel at the Office ofDispute Resolution in the U.S. Department ofJustice, examines the role of mediation in thefederal court system and the importance of suchconcepts as confidentiality.

Florida was one of the first states in thenation to develop systematic mediation proce-dures, including an ethical code for mediators.In an interview with Contributing Editor DavidPitts, Dr. Don Peters, director of both the Institutefor Dispute Resolution and the Virgil HawkinsCivil Law Clinic at the University of Florida,talks about the challenges of implementingmediation in the courts, particularly at the statelevel, and the kind of resources necessary tohelp ensure an effective system.

In the concluding article, ContributingEditor David Pitts looks at a case study involv-ing mediation—African American farmers v. theDepartment of Agriculture. At the time the medi-ated settlement was approved by a federal judgein early 1999, this was the most significant civilrights case ever to go to mediation and may seta precedent for avoiding long and costly courtbattles in the U.S. in future civil rights cases.

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issues of Democracy

C o n t e n t s

December 1999

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J U D I C I A L M E D I AT I O N A N D L E G A L C U LT U R E

Hiram E. Chodosh of Case Western Reserve University offers a global view of mediation.

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M E D I AT I O N : A N OV E R V I E W O F A LT E R N AT I V E

D I S P U T E R E S O L U T I O N

Robert A. Goodin of the Institute for the Study and Development of Legal Systems, examines

the popularity of mediation within alternative dispute resolution (ADR).

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C O U R T- A N N E X E D M E D I AT I O N

Dr. Don Peters of the University of Florida discusses the role of the court in ADR.

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T H E R O L E O F D I S P U T E R E S O L U T I O N I N

U . S . F E D E R A L C O U R T S

U.S. Department of Justice official Peter R. Steenland, Jr. explains the federal use of the process.

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B L A C K FA R M E R S V. T H E D E PA R T M E N T O F AG R I C U LT U R E

Contributing Editor David Pitts looks at a landmark mediation case.

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B I B L I O G R A P H Y

Recent books and articles on ADR.

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I N T E R N E T S I T E S

Internet sites that feature ADR themes.

The opinions expressed on other Internet sites listed here do not necessarily

represent the views of the U.S. government.

PUBL I SHER Judith Siegel

ED ITOR Anthony W. Sariti

MANAGING EDITOR Stuart Gorin

CONSULT ING EDITOR Wayne Hall

INTERNET/TEXT EDITOR Deborah M.S. Brown

CONTR IBUT ING EDITORS Estelle Baird

Mona Esquetini

Charla Hatton

David Pitts

REFERENCE SPEC IAL I STS Carol Norton

Barbara Sanders

ART DIRECTOR Diane Woolverton

GRAPH ICS ASS I STANT Sylvia Scott

ED ITOR IAL BOARD Howard Cincotta

Judith Siegel

Leonardo Williams

The Office of International Information Programs of the U.S. Department of State provides products and services that explain U.S. policies to foreign audiences. The Office publishes five electronic journals that examine major issues facing the United States and the international community. The journals—Economic Perspectives, Global Issues, Issues of Democracy, U.S. Foreign Policy Agendaand U.S. Society and Values—provide analysis, commentary and background information in their thematic areas. All journal editions appear in English, French and Portuguese language versions, and selected issues also appear in Arabic, Russian and Spanish. • A new English-language issue is published every three to six weeks.Translated versions normally follow the English original by two to fourweeks.The order in which the thematic editions appear is irregular, as some editions publish more issues than others. • The opinions expressed in the journals do not necessarily reflect the viewsor policies of the U.S. government. The U.S. Department of State assumes no responsibility for the content and continued accessibility of Internet sites linked to herein; such responsibility resides solely with the publishers of those sites. Articles may be reproduced and translated outside the United States unless the articles carry copyright restrictions. • Current or back issues of the journalscan be found on the Office of International Information Programs’ International Home Page on the World Wide Web at http://www.usia.gov/journals/journals.htm. They are available in several electronic formats to facilitate viewing on-line, transferring, downloading, and printing. • Comments are welcome at your local U.S. Embassy (attention Public Diplomacy Section) or at the editorial

offices: Editor, Issues of Democracy, Democracy and Human Rights—IIP/T/DHR, U.S. Department of State, 301 4th Street, S.W.,Washington, D.C. 20547, United States of America.e:mail: ejdemos@usia.gov

A N E L E C T R O N I C J O U R N A L O F T H E U . S . D E P A R T M E N T O F S T A T E

I S S U E S O F D E M O C R A C Y

M E D I A T I O N A N D T H E C O U R T S

D E C E M B E R 1 9 9 9

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FROM THE CONVENTIONAL perspectiveof most modern legal cultures, judicial mediation is a contradiction in terms. Judgesare supposed to judge (not mediate), to applylaw (not interests), to evaluate (not facilitate), to order (not accommodate) and to decide (not settle).

This view of judicial mediation as an oxy-moron falsely assumes that the functions ofjudging and mediation are mutually exclusive.It is also out of touch with the modern realitiesof national court systems.

To justify this new interest will requirecareful consideration of some fundamentalquestions. To which set of problems confrontingcourt systems today does judicial mediationpose a significant, albeit partial, solution?What are the varied forms of judicial media-tion? What are the sources of interest in it?What are the primary impediments in modernlegal cultures to the acceptance of this reform

M e d i a t i o n a n d t h e C o u r t s

Judicial Mediation and Legal Culture

by Hi r am E . Chodosh

In a diverse set of legal systems, from

the United States to the United Kingdom,

from India to China, from Norway to

France, from Jordan to Israel, from Mexico

to Brazil, judicial mediation is increasingly

seen as a potentially complementary

and innovative alternative to traditional

judicial systems. Hiram Chodosh, profes-

sor of law and director, Frederick K. Cox

International Law Center, Case Western

Reserve University School of Law, explores

the diverse features of mediation and how

the world views it as a new method for

confronting litigation.

Hiram E. Chodosh

mechanism? And how should interested legalcommunities proceed in the study, design andimplementation of judicial mediation to over-come these obstacles?

The L imited Capac i ty ofNat iona l Cour ts

In the last decade the world has witnessed asignificant increase in national commitments todemocracy and free markets. These twin politi-cal and economic objectives have spurred anenormous amount of new substantive law,including constitutional and civil rights reform,free trade agreements and commercial legisla-tion. These trends have given rise to an increas-ing quantity and complexity of private and pub-lic disputes both within and across nationalborders.

However, the reform of national judicialsystems has not kept pace with these substan-tive commitments. Many systems suffer frominsufficient institutional resources and outdated

procedures. Litigants and lawyers complain ofexcessively adversarial, lengthy, costly, preju-diced, opaque trials and unenforceable judg-ments. Judges demand more resources in courtand case management, more disciplinaryauthority over the progress of litigation, bettercompensation and greater protection fromimproper influence by political branches ofgovernment and organized crime.

Democratic and market-based trendsappear to generate too many legal disputes fortraditional national courts to handle. Courtbacklog reduces the time that can be allocatedto each dispute, causing delay. Delays strength-en the incentives for breaching obligations.Poor compliance in turn generates more legaldisputes. Backlog, delay and low compliancecreate a vicious cycle that is difficult for thecourts to address.

Most judicial systems do not providemeaningful alternatives to the formal methodsof trial. Arbitration is widely available, but dis-puting parties frequently require court action tocompel the parties to go to arbitration or toenforce an award that is contested. Lackingalternatives, many disputing parties either suf-fer the harm without recourse to a remedy thatwould make them whole or they pursue self-help or illegal strategies in retaliation.

Common and Diver seFeatures

Judicial mediation is one of several remedies to this condition. It comes in varied forms, but may be defined by several widely observedfeatures.

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Generally, judicial mediation is a confidential,consensual form of dispute resolution facilitat-ed by a sitting or retired judge who is trained in conflict resolution. Typically, sessions areattended by the disputing parties and/or theirlegal representatives. Sessions frequently beginwith statements from each party of the assertedclaims and defenses. They may proceed withprivate meetings between the mediator andeach party. The judicial mediator or the “neu-tral,” attempts to narrow the disagreementsbetween the parties and to encourage finalagreement on settlement. The neutral alsoexplores aspects of the dispute beyond the legalpositions of the parties or the permissible scopeof judicial relief. Mediation allows the neutralto examine the parties on aspects of the disputethat most litigation systems must ignore. Theseinclude:

❍ the relative strengths and weaknessesof each legal claim and defense;

❍ the impact of these issues on the pre-sent value of the claim;

❍ settlement proposals that more accu-rately reflect the probabilities of suc-cess on the merits; and

❍ creative solutions, including new busi-ness or contractual arrangementsbetween the parties that maximize theirongoing interests.

Judicial mediation may be voluntary orcompulsory. In some legal systems, it requiresthe parties to prepare in writing a summary oftheir legal and evidentiary positions in advanceof the session. Because of their experience asadjudicators, judicial mediators tend to be moreevaluative than facilitative, that is, they aregenerally more willing to share their evaluation

of the merits or value of a claim. If an evalua-tion is provided, it may be communicated eithersimultaneously to both parties or consecutivelyto each party in private sessions. If settlementis achieved, the mediator may assist the partiesin drafting a settlement agreement to recordtheir understanding in writing. Each of thesefeatures may be adapted to the particular needsof the judicial system.

Growing Interest Wor ldwide

The emerging interest worldwide in judicialmediation derives from many sources.Compared with the undesirable condition ofmost litigation systems, judicial mediationoffers certain advantages. If designed properly,it is less adversarial, less time-consuming, lessexpensive, less formal, and when successful,more final. The parties participate directly inthe process, which is designed to be conciliato-ry in tone, candid in discussion and creative indesigning solutions. Disputing parties maycommunicate directly with one another, oppos-ing attorneys and the neutral. Because the par-ties (instead of the judge or arbitrator) areresponsible for resolving the dispute, they canbetter control the outcome, shaping it to maxi-mize their competing interests. They are alsomore likely to comply with a final resolution inwhich they had an active role in creating.

For many non-European legal cultures,judicial mediation bears a comforting similarityto traditional forms of dispute resolution thatpredate colonial influence.

Given the relative ineffectiveness of manynational judicial systems, many legal opinionleaders have grown increasingly interested inreviving or extending traditional forms of dis-

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pute resolution (Indian panchayats of five elderarbitrators, or the wasta for the process of sulhain the Middle East) and integrating them into the formal litigation system (the distinctiveform of evaluative Chinese mediation known astiaojie).

India has launched a major campaign touse lok adalats (people’s courts) for the reso-lution of auto accident and family disputes.Panels of three (two judges and a doctor orsocial worker) render non-binding evaluationsand facilitate settlement. Likewise, Egypt hasdesigned an integrated judicial mediationmechanism for use in its first instance courts.

Throughout Europe, judicial mediation is seen as a potentially promising mechanismfor the resolution of both simple and com-plex disputes. Norway’s conciliation boards(Forliksradene) provide a model of extensivecomparative interest and international study. In 1995, France expanded the legislative basis for judicial conciliation and mediation.Preliminary work in Russia and the Ukraine isalso under way.

In many of these jurisdictions, judicialmediation is seen as useful not only for smallclaims, auto accidents, family disputes andpetty crimes in court systems clogged by a mod-ern docket, but also as an alternative disputeresolution device for the most complex matters,including those involving environmental andintellectual property law.

The World Intellectual Property Organiza-tion opened its Arbitration and MediationCenter nearly five years ago in response to theinability of national court systems to handle thetechnical and multi-jurisdictional complexity ofsuch disputes. The speed of change in strong

national and emerging global markets putincreasing pressure on large business intereststo resolve disputes quickly and inexpensively,as well as amicably, constructively and cre-atively, in order to maximize long-term interestsand to maintain ongoing commercial relation-ships.

Effective judicial and other forms of medi-ation at the local level also may provide a strongfoundation for conflict resolution on the inter-national scene. When direct negotiations fail,communities that seek to resolve profoundintra- and inter-border conflicts are increas-ingly turning to neutral third parties. Theseneutrals may be prominent political leaders ordiplomats, for example, former U.S. SenatorGeorge Mitchell in Northern Ireland or theNorwegian diplomat Terje Roed-Larsen in theMiddle East; non-governmental institutionssuch as the Carter Center in the Ethiopia/Eritreaconflict; quasi-judicial commissions such asthe Truth and Reconciliation Commission ofSouth Africa; countries such as Kenya in theMozambique/RENAMO conflict; or internation-al organizations such as the United Nations inthe Soviet withdrawal from Afghanistan.

Impediments to Acceptance

The acceptance of judicial mediation into anational legal culture does not necessarily fol-low from these perceived advantages, however.Despite its increasingly widespread use, judi-cial mediation poses an ostensible threat toimportant values expressed by many modernlegal cultures.

Beyond the conventional view of judicialmediation as oxymoronic, judges may see it as a threat to their authority to make public judg-

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ments and normative pronouncements. Theymay perceive the risk of a “brain drain” from the bench as a consequence of perverse incen-tives for judges to retire early in search of a morelucrative career in private dispute resolution.

Lawyers who produce their income byworking in court may see mediation as a threatto their livelihoods. If more disputes are to bemediated, lawyers might view this as consistentwith a reduction in demand for their services.

Litigants in systems where there is littletrust of judges generally may feel more comfort-able with a formal, public, albeit more rigid,procedure. In some cultures, litigants may notbe able to maintain dignity or honor if they haveto admit their mistakes or make a concession.

Scholars may object to the use of publicresources for the diversion of legal disputesfrom public scrutiny. And the public may resistthe notion of discounting the worth of legalrights based on the probability of success or thetime value of money.

Furthermore, the mere creation of alterna-tives to trial, without significantly reducing delay,may not be effective in practice. Absent the pres-sure of imminent jeopardy, incentives to negoti-ate directly remain weak. Consequently, media-tion may not be effective unless closely linked toother reforms that shorten the time to judgment.

Develop ing A GreaterAcceptance

Judicial mediation is potentially useful only if itresponds appropriately to real problems, gen-uine needs and their actual causes. When con-sidering the acceptance of mediation, legalcommunities should first endeavor to conduct a

candid assessment of the practical operation ofthe judicial process.

The greater awareness of its increasinglywidespread application will soften the initialtendency to dismiss judicial mediation asanathema. Legal communities should study theavailable models of mediation, drawing on bothindigenous traditions in informal dispute reso-lution and comparative and international trendsin conflict resolution reform.

The process of tailoring judicial mediationto meet local needs should address the legiti-mate concerns of the primary participants in thejudicial process. There should be a detailedadaptation of the use of mediation to enhanceits acceptance and effectiveness in the contem-porary legal culture.

Initial efforts to experiment with judicialmediation should target a limited category ofdisputes. This will reduce the perceived threatthat mediation will altogether replace the role ofjudges in the adjudication of disputes of greatpublic concern.

By employing judicial mediation both inand outside the courts and by limiting the poolto judges who have reached mandatory retire-ment age, fear of premature judicial retirementsmay be allayed.

Demonstrating how legal professionals canincrease the value of the service they performfor their clients in this new process will allevi-ate concerns about reducing levels of compen-sation for legal services. Legal limits on thetypes of disputes that are required or permittedto go to judicial mediation will reduce concernsabout the impropriety of diverting critically important disputes from public scrutiny.

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Finally, the integration of mediation with othercourt and case management reforms will be very important in ensuring that the incentivesfor settlement are sufficiently strong to make iteffective.

Drawing on Tr ad i t ions

In each of these efforts, knowledge and appre-ciation of the culture are critical. Translationand interpretation are very important. Forexample, in Arabic-speaking cultures, thenotion of unilateral concession (tanazol) is lesslikely to be an effective concept than the alter-native notion of compromise (hal wassat) orconcession as part of a series of mutual conces-sions (musawama). Crude equivalence betweenjudicial mediation and cultural forms of disputeresolution (e.g, U.S. mediation and tiaojie inChina) must also be avoided.

Within the Jewish tradition, for example,the shadkham (marriage), Metavekh (broker),borer (rabbi/arbitrator) and shtadlan (interced-er/diplomat) all denote varied actors with dif-ferent roles. Efforts to draw on these traditionsmust proceed with adequate sophisticationabout the subtle, yet significant differencesbetween these pre-existing cultural forms andnewer innovations.

Through this process of design and adapta-tion, the legal community should endeavor toachieve a broad consensus prior to the imple-mentation of the reform. Failure to do so is like-ly to end in disappointment. If the primaryactors in the judicial process are unwilling to participate in good faith, this primarily con-sensual and collaborative process will be of little use.

Once the design is established and con-sensus developed, legal communities mustdevelop a strategy for implementation. Thelocation, scope and conditions for the first stageof implementation, e.g., a pilot project, must becarefully determined. The budgetary impactsand allocations, facilities, selection and certifi-cation process, training and development, prop-er coordination with court administrators, theauthority for reform by administrative action orjudicial order short of legislation, and thetimetable for implementation, evaluation andmidstream amendments all present criticalissues. Prior attention to these questions willenhance the likelihood of successful accep-tance.

A To o l f o r t h e21st Centur y

Mediation is no panacea for the world’s con-flicts. Resistance to its varied forms, includingjudicial mediation, will remain strong in somequarters. However, an assessment of contempo-rary judicial systems will reveal that withoutcomplementary alternatives to trial, formal liti-gation systems are unlikely to realize their pri-mary objective of delivering justice. An openstudy of worldwide reforms will provide agreater awareness of the available tools to solvecontemporary problems. A thoughtful adapta-tion of practicable models will ensure thepreservation of important values and also limitthe obstacles to implementation. The develop-ment of consensus (from the bottom up) amongprimary participants in the judicial process willprovide an important foundation for the accep-tance of reform determinations (from the top

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down). And effective implementation strategies will be critical for transforming well-intendedproposals into effective and beneficial legalpractices.

Through this process of assessment, com-parative study, adaptation, consensus-buildingand implementation strategy, legal communitieswill be better able to use judicial mediation asone of many tools designed to meet the conflictresolution challenges of the next century.

Issues of Democracy, IIP Electronic Journals,Vol. 4, No. 3, December 1999

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BY THE LATE 1980s and particularlybeginning and continuing through the 1990s,mediation has become an increasingly popularprocedure in all types of civil cases. In fact, itis now probably the most popular form of alter-native dispute resolution used by litigants incivil cases in the United States. Moreover,because of its flexibility, it is increasingly usednot only in civil disputes but also criminalcases and in cases that are on appeal.

Mediation is a structured negotiationpresided over by a facilitator with the skill,training and experience necessary to help theparties reach a resolution of their dispute. It isa process that is confidential, non-binding andgeared to assisting the parties in structuring amutually acceptable resolution to whatever dis-pute has prompted the mediation.

Because the process leaves control of thesettlement in the hands of the disputants, andbecause it is oriented to producing solutions

M e d i a t i o n a n d t h e C o u r t s

Mediation: An Overview of AlternativeDispute Resolution

by Rober t A . Good in

Mediation has become perhaps the most

popular procedure in the alternative

dispute resolution area, an area that is

revolutionizing the handling of cases in

the U.S. legal system. In this overview of

mediation, Robert A. Goodin, president

of the board of directors of the Institute

for the Study and Development of Legal

Systems and a partner in the San Francisco

law firm of Goodin, MacBride, Squeri,

Ritchie & Day, looks at the process and

how it has reduced the burden of costly

litigation in U.S. courts.

Robert A. Goodin

that accommodate the fundamental needs of each side, mediation is a dispute resolutiontechnique particularly appropriate for circum-stances where the parties to the dispute havehad or expect to have, a continuing relation-ship. It is also, however, well suited to disputesthat do not involve such relationships.

Emergence of Mediat ion in the U.S .

In many cultures mediation, or “conciliation”as it is sometimes known, has been a staple ofalternative dispute resolution for generations,typically presided over by a town elder orrespected figure in the community.

The emergence of mediation as a device toresolve litigation in the United States can prob-ably be traced to the seminal work in negotia-tion theory done by Roger Fisher and WilliamUry of the Harvard Negotiation Project, popu-larized in their 1981 book Getting to Yes.

The central insight of Fisher’s and Ury’swork was that most negotiations are conducted by bargaining over positions and can result in either impasse or an agreement that is per-ceived by one of the parties to have beenimposed simply through superior strength of theother.

Fisher and Ury suggested that instead ofbeing based on positions, bargaining shouldfocus on the underlying interests that motivateparties to take these positions. In this manner,creative solutions can be developed that meet,at least in part, the underlying interests of eachof the parties, thus permitting a principled andmutually advantageous resolution of the conflict.

A simple illustration, used by Fisher andUry relies on the concept of interest-based bar-gaining. Two men are seated at a library deskand cannot agree about whether the windowabove the desk should be open or shut. Aftermuch wrangling and no solution, they summonthe librarian who asks each party the reasonbehind his position. The man who wishes thewindow open explains that he wants fresh air.The man who wishes it closed explains that hewants to avoid a draft. Armed with this informa-tion, the librarian arrives at a solution—open-ing the window in an adjacent room—thataccommodates the interests of each of the par-ties and which would not have been possible ifthe parties had simply continued to bargainover their positions.

Because mediators are trained to explorethe interests underlying each party’s position ina mediation, and because the process itself isconducive to that exploration, mediation is an

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ideal forum in which to use the negotiation phi-losophy advocated by Fisher and Ury.

Mediat ion in the Cour ts

Many courts in the United States, both stateand federal, have mediation programs. This hasbeen particularly true since the 1990 CivilJustice Reform Act (P.L. 101-650) required fed-eral courts to design and implement alternativedispute resolution programs.

Mediation typically arises in one of twocontexts in U.S. litigation. The first is throughcourt-ordered or court-annexed mediation.Typically, such courts maintain a panel ofapproved mediators who offer their services tolitigants, at either the court’s direction or thelitigants’ request.

The second context in which mediationarises is private mediation. In these cases theparties to a dispute decide that mediation wouldbe appropriate and select a mediator fromamong the many private providers who havegone into the business of offering these ser-vices.

Mediation as a technique for resolving dis-putes first began in the area of family law, prob-ably because the nature of the emotionsinvolved often led to serious problems withpositional bargaining and because the parties,like it or not, were often forced to have a con-tinuing relationship because of children.

Mediation in family law disputes wasquickly recognized as a valuable tool, andcourts and litigants soon realized that usingmediation was not limited to family disputes butcould be extended to other civil disputes aswell.

The reasons for mediation’s growing popu-larity in all areas of civil litigation are abun-dantly clear:

❍ Mediation is non-threatening. It is non-binding and thus permits client controlof the outcome.

❍ Mediation is relatively inexpensive.Most sessions last no more than one ortwo days.

❍ Mediation works. Most mediators report80– to 90–percent success rates.

The Mechan ics of Mediat ion

One of the advantages of mediation is its flexi-bility. A mediation session can be designed inany way that the parties believe would be mostuseful to the resolution of their dispute.

Before the mediation actually begins, eachside will submit a brief or statement to themediator, which consists of a short summary ofthe party’s position and includes any criticalwritten material, e.g., contracts, etc.

The mediation begins with a joint sessionattended by the mediator and all of the partiesand their lawyers. The mediator hears a presen-tation by each party outlining its particular viewof the case and why it believes it is entitled toprevail in the dispute. Although the lawyersusually take the lead in this presentation, it isimportant to also allow—and mediators encour-age—the clients directly to express their views.

Frequently, after a party’s presentation isconcluded the mediator restates the position toensure he has not missed anything. After themediator has heard presentations from eachside, the joint session is ended.

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The purposes for the joint session are sev-eral. First, it allows the mediator to hear first-hand each party’s statement of its position.Second, by accurately reciting back the posi-tions to each of the parties, the mediator canbuild credibility with both sides by demonstrat-ing that he has truly understood any con-tentions. Finally and importantly, the joint ses-sion allows each side to hear the other side’sarguments directly, without the “filtering” thattypically occurs when cases are reported onlythrough the lawyers.

Following the joint session, the mediationbreaks into individual meetings where the medi-ator meets with each side privately in an attemptto bridge the gaps that exist. It is in these privatesessions where the mediator spends substantialtime candidly identifying with the parties whattheir true interests are and developing optionsthat might satisfy those interests. At the sametime, the mediator is looking for common groundbetween the parties.

As a motivation for developing creativealternative solutions, the mediator will oftenexplore some of the legal strengths and weak-nesses of the party’s case. Typically, multipleprivate meetings with each side are held thatincreasingly narrow the differences between theparties. At the conclusion most cases areresolved.

Tra in ing and Compensat ion

At the present time there are no licensing orcertification requirements for mediators in theUnited States and no formal training is requiredto offer those services. Nevertheless, most peo-ple who offer mediation services have receivedsome training.

Most courts that have court-annexed medi-ation programs require training of the peoplewho wish to be members of the mediation paneland also offer the training to others who wish toreceive it. In addition, many private, continuinglegal education providers offer mediation pro-grams. Court training usually consists of amulti-day program comprised of lectures anddemonstrations. Role-playing sessions duringtraining allow students to play the mediator in amock case using the skills they have learned.

Compensation varies depending on thecontext in which the mediation arises. Mostcourt-annexed mediation programs ask that themediators on the panel volunteer their servicesfor a portion of the time devoted to the media-tion (for example, the first four hours) andrequire the parties to compensate the mediatorthereafter at a court-established hourly rate.

In the case of private mediation, the com-pensation is a function of the agreementbetween the parties and the mediator. Typically,private mediators offer their services at anagreed daily rate, which can be rather substan-tial. Private mediators are able to ask for andreceive more compensation because the liti-gants realize the potential value of their ser-vices. For example, most privately mediateddisputes have much smaller amounts in contro-versy than potential future legal fees that wouldresult if a case went to litigation.

Reduc ing the Burden on the System

Because mediation is so effective, it offerstremendous cost savings and other benefits tothe parties involved. By resolving cases and get-ting them out of the court system, mediation also

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reduces the burden on that system and promotesspeed and efficiency in the processing of cases.

Since most court systems worldwide havecost and delay problems similar to those in theUnited States, and because mediation is cultur-ally familiar in so many countries, the alterna-tive dispute resolution movement appears des-tined to attain tremendous international curren-cy as the new millennium progresses.

Issues of Democracy, IIP Electronic Journals,Vol. 4, No. 3, December 1999

18

Mr. Pitts. What do you consider the greatestchallenges in implementing alternate dispute res-olution in the courts?

Dr. Peters. I think envisioning accurately whatyou want to accomplish and then creating theimplementing steps are the most significantchallenges for court-annexed mediation. Youneed to ask the following questions:

❍ Will court referrals lead to mandatoryor voluntary mediation?

❍ Will courts refer a broad case range oronly specific targeted cases to media-tion, and what cases will be exemptfrom referral?

❍ Will the effort be a comprehensivestate-wide approach, such as was pio-neered by Florida, or will it be a localcourt-by-court experiment such asoccurs in the federal district courts andin some states?

M e d i a t i o n a n d t h e C o u r t s

Court-Annexed Mediation

by Dr. Don Peter s

Dr. Don Peters, director of both the

Institute for Dispute Resolution and the

Virgil Hawkins Civil Law Clinic at the

University of Florida, has extensive experi-

ence in alternate dispute resolution

(ADR) and court-annexed mediation in

Florida, which was one of the first states

in the nation to develop ADR procedures,

including an ethical code for mediators. In

this interview with Contributing Editor

David Pitts, Dr. Peters talks about the chal-

lenges of implementing mediation in the

courts.

Don Peters

❍ Will the court provide mediation ser-vices or rely on private mediators, orcreate some combination?

❍ How will the mediators be selected forindividual cases?

Some of the important implementing stepsinclude: 1) creating statutory or rule-basedauthority for the referrals, 2) creating any nec-essary procedures regarding the mediations, 3) creating a means to ensure minimal mediatorcompetence, which often includes mandatorytraining or certification requirements, ethicscodes and mechanisms for their enforcement,4) securing adequate funding and 5) determin-ing who will coordinate the program.

All of these decisions and implementingsteps can present significant challenges depend-ing upon the circumstances confronting individ-ual courts.

There is a concern that emphasizing suchthings as ‘clearing the docket’ and ‘speeding uptrial time’ may actually affect how mediation is

conducted. For instance, they may overemphasizesettlement rates, which may encourage mediators to be coercive, which in turn conflicts with thegoals of the mediation process.

There is also some evidence suggestingthat mandatory mediation may not be reducingcourt personnel expenses because the samenumber of cases are still going to trial. Onlyabout four percent of civil cases make it to trialin most court systems. Instead, mandatorymediation may be influencing the types of casesthat make it to trial, for example, the ones thatcannot be negotiated easily. But it also may behelping ensure that trial time is given to thecases that need it most.

Mr. Pitts. Mediation can either be mandatory orthrough agreement by the parties involved. Howare the majority of cases handled, and does thecourt exercise any review once mediation begins?

Dr. Peters. Mandatory mediation proceeds asoutlined in the rules and statutes of a state,whereas voluntary mediation can be adapted byagreement to create whatever process the par-ties wish.

I think most successful mediation pro-grams in the United States are through manda-tory mediation. Certainly most state courts,including Florida, which is the system I’m mostfamiliar with, have mandated mediation.

As for court approval, an agreementreached during mediation is deemed to be acontract. The parties are negotiating their wayout of a dispute by reaching an agreement thathas the force of a contract, and so the court gen-erally does not review agreement terms.

An exception to that rule might exist whena court would see something in a mediated

19

agreement in a family-law case and concludethat it is not in a minor child’s best interest.That is about the only situation I can think ofwhere the court would exercise any kind ofreview over the outcome of a mediation.

Mr. Pitts. What are the resources required to setup an ADR program?

Dr. Peters. The resources needed depend uponthe choices that are made regarding the deci-sions and implementation of the steps that Imentioned earlier. The biggest expenses typi-cally are the court-provided mediation services.Using private mediation-providers who are paidby the litigants is the least expensive route.There is some use of volunteer pro bono media-tors in the various court-annexed programsaround the country. Some expenses in Florida,for example, are paid by general court budgetsthrough mediation certification and re-certifica-tion fees and by additions to court filing fees,which are sums of money paid to the court forparticular charges that are mandated by statelaw.

Filing fee additions also have been a pop-ular source of funding in other states’ programsbecause they provide a steady reliable revenuesource. They legitimize the ADR process byrequiring everyone who uses the court to fundthe program even if not all cases are sent tomediation. The justifying theory is that litigantswho do not actually use ADR may in fact bene-fit by gaining more timely access to a tradition-al legal tribunal. Another advantage is that thisapproach communicates the fact that litigationis not the only service that courts can offer.

On the federal front, a 1996 survey of fed-eral court programs shows wide diversity from

district to district. Nevertheless, it concludes that most federal courts now use private media-tion services and require litigants to pay thefee.

Mr. Pitts. Who are the key players in the ADRprocess?

Dr. Peters. The key players in court-annexedmediation are the judges, the lawyers, the liti-gants or participants and the mediators.

The judicial role is limited to referring thecase to mediation and occasionally designatingthe mediator. The Florida premise is that thejudge, together with the parties, is in the bestposition to determine if a case is appropriate forreferral. Once that decision is made, some sys-tems authorize judicial appointment of a certi-fied mediator from a rotating list or a programmaintained by the court. These mediators areprimarily used in lower-income family casesand in volunteer small-claims cases.

Once mediation is ordered, the lawyer’srole in mediation often includes selecting themediator if private mediators are used. Floridahas a “10-day rule” allowing parties to agree ona mediator within 10 days of an order referringthe case to mediation. This provision is used inmore than 90 percent of the private-mediatorreferrals in circuit and family court cases.

The lawyer also has an important role inpreparing litigants for mediation, which includesexplaining the mediation process fully. He out-lines the general roles of the mediator, that sheor he is a facilitator but not a decision-maker.He explains the confidentiality parameters,which are set forth typically by statute law instates that have adopted mandatory mediation.

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21

He explains the mediation process, which includes opening statements by participants—often including clients as well as lawyers—andthen alternating joint and private sessionsthereafter.

An attorney also plays a major role in rep-resenting participants in mediations. A lawyeris usually given the right to attend and partici-pate fully in a mediation. In Florida, for exam-ple, an attorney must appear in circuit courtmediations unless otherwise stipulated orordered, and he may participate in county courtmediations. He also may, but is not required toattend, family court mediations.

Typically, in Florida, lawyers act as the pri-mary negotiators during mediations. They staythroughout circuit court cases and then lead thedialogue during the economic aspects of familycases, but play less significant roles once cus-tody and visitation rights are under discussion.

In most states—including Florida—par-ticipants are usually required to attend court-ordered mediation. Otherwise, they can besanctioned for failing to attend without goodcause and made to pay mediator and attorneyfees or other costs.

Court-ordered mediation has proven to bea very good way to involve and commit lawyersand participants to the mediation processbecause, in essence, they have no other choice.The theory is that if you sit people down withauthority they will make good use of the timeand at least talk.

Most lawyers and litigants appreciate thethings mediation adds to the pre-trial negotiat-ing process. For instance, lawyers learn thatmandatory mediation is totally consistent with

their traditional practice of pre-trial settlementin most civil cases. Control of negotiating andstrategizing is not taken from them, and it doesnot prevent them from trying cases they andtheir clients want to try.

Mediation generates a closure that encour-ages parties to reassess the risks and conse-quences of not agreeing. Litigants can give vent to emotional issues better and more broadlythan possible at trial because those issues willtypically not be as relevant in court. They alsocan avoid the stress of participating in a trialand the time lost from work, as well as the addi-tional costs incurred.

Mediation lets lawyers make concessionswithin private meeting-like settings, which isan easier place to concede from earlier posi-tions because it helps “save face.” It also pro-vides a process that permits the confidentialsharing of information that could generate solu-tions but that is too risky to share with the otherside directly. Mediators can use this informa-tion to explore potential solutions without dis-closing it directly. They also can point out caseweaknesses that re-enforce what lawyers mayhave already told their clients initially. This canhelp litigants decide to revise their thinkingand move toward agreement.

Mediation can take advantage of a neutralarea on the difficult questions involved in eval-uating claims. For instance, it lets the negotia-tors take advantage of a broad range of solu-tions. Apologies, for example, are typically notthings that courts can order, except in defama-tion lawsuits. But apologies can be very impor-tant to creating the good will that results in asettlement. In mediation, you can be very cre-ative.

Mr. Pitts. What kinds of training programs arerequired for mediators?

Dr. Peters. The mediation community is recog-nizing the importance of developing mediatorqualifications to protect consumers and to pro-tect the integrity of the process. Most statesdeal with this by statute or by rule, often fol-lowing Florida’s lead in using a certificationprocess.

Typically, qualification or certificationrequires some combination of the following:mediation training, apprenticeships or mentor-ships, educational requirements and previousexperience in related fields. There are lots ofindividual variations from state to state, and thefederal courts often rely on state qualification orcertification procedures.

Florida, for example, mandates differentqualifications for certification in different areasof mediation. The cornerstone is a non-waivabletraining requirement that consists of 20 hours incounty courts and 40 hours in family and circuitcourts. The training programs must be taught bypersons qualified by the state supreme court.They must meet specific educational goals, andthey must be approved by the Florida DisputeResolution Center. Programs typically covergeneral dispute-resolution theory. They explainand develop through practice, specific media-tion skills and role playing where the partici-pants are observed and critiqued.

Mentoring requirements follow the train-ing. For Florida county courts, you have toobserve and conduct four mediations under thesupervision and observation of a certified coun-ty mediator. In family and circuit court, youhave to observe and co-mediate two. No educa-tional experience or qualifications are required

for county court mediation. For family court,you must have at least four years’ experience asan attorney or as a certified public accountant;or have a master’s degree or PhD in social work,mental health, behavioral or social sciences; orbe a physician certified to practice adult orchild psychiatry. For circuit court, you must bean attorney with at least five years’ experienceon the Florida Bar or be a retired judge. Bothattorneys and judges must be members of thebar in the state where they reside.

The certification process in Florida—which lasts two years—consists of demonstrat-ing compliance with these criteria, trainingrequirements and the payment of a certificationfee.

Mr. Pitts. Why are the vast majority of mediationcases civil rather than criminal?

Dr. Peters. The stakes and the interests are dif-ferent. Civil cases primarily involve privateinterests. States get involved only by providingADR solutions so that the parties can use law toadjudicate claims regarding their private inter-ests. The burden of proof is a “preponderanceof evidence.” Remedies are typically monetaryor equitable. Personal liberty is seldominvolved, the death penalty is not available andthere is no presumption of innocence favoringthe accused as in a criminal proceeding.Whatever private parties decide to do is okay aslong as it does not violate a law or other expres-sion of public policy.

Criminal law cases, on the other hand,involve crimes against the state, and enforcingthese laws protects society’s collective interestand behavioral norms. Defendants have a pre-sumption of innocence until proven guilty and

22

the burden of proof is “beyond a reasonabledoubt.” Defendants also have a right to remainsilent and cannot be forced to testify. So it israther hard to see how mediation, which is aprocess based upon conversation, would beeffective.

The attempt to move mediation to the crim-inal justice system has been primarily in thearenas of victim/offender mediation and neigh-borhood justice. Cases typically referred areusually small crimes and other things that maybe burdensome to prosecute: bad checkcharges, for example.

These programs typically depend upon thewillingness of victims and offenders to partici-pate in a constructive manner. But severe prob-lems exist with offenders who feel coerced intoparticipating and are led to believe that theirsubsequent prosecution or sentencing will beharsh if they do not reach an agreement inmediation. It really transforms the criminal jus-tice paradigm by putting victims at the centerrather than on the periphery of the criminalprocess and it transfers the power to resolve allor part of a criminal case to a private party.

Mr. Pitts. Finally, in your personal view, how welldo you think mediation works?

Dr. Peters. I think it works very well. It is cer-tainly a fact of life in Florida law practice now:if you’re going to litigate you’re going to medi-ate. A large number of Florida attorneys havetaken mediation training primarily to learnmore about how to advocate effectively.

My work in small claims court suggestsabout a 60-percent compliance rate with medi-ated agreements in collection cases. That showssome measure of how well mediation works.

One small claims study showed that unusually large awards going entirely to the plaintiff occurred in nearly 50 percent of trials but only17 percent in mediated outcomes.

In other areas, there is one divorce studythat found a significant percentage of divorcingcouples who did not reach an agreement, nev-ertheless, valued the mediation processbecause it accomplished other things, such asimproved communication, and in a few cases,reconciliation. A divorce study also has shownthat mediation produced more joint-custodyagreements, while adjudication produced moresole custody agreements.

So there is some evidence suggestingmediated agreements involve more compromiseand more equal sharing of resources than adju-dicated outcomes.

Mediation has emerged as the primaryADR process in federal courts. Many federalcourts now require attorneys to discuss ADRwith their clients and opponents. For example,mediation has basically changed the way litiga-tion occurs in the Florida courts. Anecdotal evi-dence suggests that more clients are asking forit, and more attorneys are requesting it beforethe court gets involved.

Mediation really does seem to add a new,different process that can be used in tandemwith the litigation process before adjudication.

Issues of Democracy, IIP Electronic Journals,Vol. 4, No. 3, December 1999

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24

M e d i a t i o n a n d t h e C o u r t s

IN THE UNITED STATES, the Depart-ment of Justice is responsible for conduct-ing litigation on behalf of federal agencies and their officials, using a staff of lawyers in Washington and in 94 judicial districtsthroughout the United States. These lawyers areresponsible for some 20 percent of all the civilcases in the U.S. federal courts. Cases includesome of the most complex and difficult litiga-tion in the country, covering a wide variety ofsubjects including tort claims, civil rightsenforcement, employment law, contract dis-putes, environmental claims, tax matters andissues involving antitrust laws.

To achieve greater efficiency in handlingthese cases, U.S. Attorney General Janet Renoin 1995 established a Dispute ResolutionProgram in the Department of Justice that isapplicable to all civil cases. The attorney gen-eral ordered every lawyer at the Department ofJustice to be trained in how to use mediationand in advanced negotiation techniques. She

The Role of Dispute Resolution in U.S. Federal Courts

by Peter R . S teen land , J r.

The use of dispute resolution to accom-

plish a swift and efficient settlement of

civil lawsuits is fast becoming a trend in

the United States. In this article, Peter R.

Steenland, Jr., senior counsel at the Office

of Dispute Resolution in the U.S. Depart-

ment of Justice, provides an insight into

alternative dispute resolution and gives

an overview of how the Department of

Justice uses the process in its cases.

25

Peter R. Steenland, Jr.

also set aside funds to hire mediators for gov-ernment cases and made clear to those who lit-igate with the federal government that theUnited States was interested in using mediationwhen appropriate.

Under the auspices of the DisputeResolution Program, the Office of DisputeResolution was established to work with JusticeDepartment lawyers, the courts, professionalorganizations and other federal agencies to pro-mote greater use of mediation and other formsof dispute resolution. From the attorney gener-al’s perspective, every government lawyershould be a “problem solver” as well as a liti-gator and should be prepared to use whateverprocesses might be helpful to secure a favorableresolution of the dispute with a minimumamount of conflict.

In the four years since the office’s incep-tion, the use of dispute resolution by the

Department of Justice has increased four-fold.A form of dispute resolution—usually media-tion—is used in some 2,000 cases per year tohelp find solutions to problems that are accept-able to all parties. Often, this involves a settle-ment on terms that courts do not have theauthority to provide but is nevertheless veryimportant to the parties. This point demon-strates that litigation can be an inefficient wayof resolving disputes because a court can onlydecide legal questions. It cannot address theunderlying interests of the parties that mayhave caused the dispute in the first place.

“ Just ice Delayed I s Just iceDenied”

Under the U.S. judicial system, both federal andstate courts give priority to criminal matters.Often, the accused is incarcerated before trial,and on many occasions, the testimony of wit-nesses to the crime may not be as effective if agreat amount of time has elapsed between thecrime and the subsequent trial. Thus, whilethere may be good reasons for giving priority topending criminal matters, such preference canhave an impact on civil disputes that also areawaiting a court date. Generally, the larger thecriminal docket, the longer it takes for an ordi-nary civil case to be decided by the court.

The delay of any court proceeding is, ofcourse, a serious concern for civil litigation aswell as for criminal cases. The old maxim of“justice delayed is justice denied” can be alltoo accurate, especially in a civil lawsuit seek-ing monetary damages for someone who hasbeen injured or who is out of work, or for a partyseeking to enforce provisions of a contract.Another concern for parties in civil litigation is

26

the increased amount of legal fees they may becharged, often resulting from an extensive dis-covery process and other trial preparation activ-ities. Indeed, some parties find that afterspending a great deal of effort getting their caseto court and ultimately prevailing, they reallyhave not “won” because the time and moneythey spent to achieve victory far outweigh what-ever benefits they may have received from afavorable judgment.

For these and other reasons, a growingnumber of parties in civil lawsuits are turning todispute resolution, and especially to mediation,to assist them in obtaining an early and accept-able solution for civil litigation. Although thereare many processes associated with dispute res-olution, such as arbitration, early neutral eval-uation, mini-trials and summary jury trials, theclearly preferred process is mediation.

Not Dec id ing R ight or Wrong

In mediation, an individual who has been trainedto assist the parties to negotiate with each otherconducts confidential meetings with each sidein the litigation. The mediator is not asked todecide who is right or who is wrong, and it is notexpected that the mediator will try to force anyspecific outcome on the parties. Instead,through confidential meetings with each side,the mediator attempts to develop options forsettlement the parties may be reluctant toexplore on their own and to identify key inter-ests of the parties that will need to be account-ed for in any settlement.

When a case is selected for the disputeresolution process, mediators are chosen jointly

by both parties in the lawsuit. Experience inmediation is more important in selecting amediator than is the mediator’s experience inthe subject of the dispute. Since the mediatorhas no power to decide the case, parties in liti-gation against the federal government must bewilling to cooperate in a search for a mediatoracceptable and fair to all. Generally, the partiesinvolved in the mediation share the cost andfees of the mediator equally.

If the mediator is able to assist the partiesin reaching a consensual resolution of the case,the settlement is reduced to a written agreementin the form of a contract. In some cases, the par-ties may present the settlement to the judge sothat it can be entered as an order of the court. Ifthere is no settlement, the parties are free toreturn to court and conduct litigation as if themediation had never occurred.

Confident ia l i ty

A key ingredient in any successful mediation isthat the actual negotiations are confidential. Bymaking all negotiations confidential, the partiesare more willing to explore settlement optionsthan if they were negotiating on their own.Confidentiality also applies in all private meet-ings that the mediator conducts with each party,so that nothing said in any meeting between aparty and the mediator is revealed to the otherside unless it is agreed to by the participants.

If the parties are able to reach a settle-ment, the agreement becomes a public docu-ment because the public has a right to knowhow the government has resolved a legal dis-pute. On the other hand, if the mediator isunable to bring the parties to an agreement,

27

there is no reason to acknowledge anythingother than the fact that an attempt had beenmade at settlement.

The Benefi t o f A Cour t Ru l ing

In some cases, the U.S. Department of Justicewill not use dispute resolution because itbelieves the public is best served by having thematter decided by a court. This is true when thegovernment believes the other side in a lawsuithas no legal arguments of any merit, and wheresuccess in court is virtually assured. Sometimesthere are circumstances when the governmentneeds the benefit of a court ruling in order toobtain a judicial declaration about the meaningof a new law or regulation. This sets a precedentso that parties affected by that legal issue, aswell as those who are not participating in thelawsuit, will know what that law or regulationrequires of them.

A Consensua l Process

It is important to emphasize that this is a con-sensual process and that in the United States,no judge or mediator can force any party to set-tle a lawsuit against that party’s wishes. About60 percent of the mediations involving the fed-eral government result in settlement. If theparty opposing the government in a lawsuit doesnot want to settle, and has no interest in usingdispute resolution, this process cannot beforced upon it. Similarly, another party cannotforce the government to settle a case where thegovernment is determined to seek a final rulingfrom a court.

Mediation and other forms of dispute reso-lution allow the parties in a civil dispute tonegotiate in an informed and efficient manner.They are able to reach resolutions more quick-ly and to find ways of settling cases that mightnot have been considered if they had beennegotiating in an unassisted fashion.

From the particular perspective of U.S.government litigation, dispute resolution is anespecially important tool that allows federalattorneys to maintain their customary vigilancewithout incurring the consequences of theadversary process that often result from pro-tracted and hard-fought litigation. By engagingin problem solving with the other side in a law-suit, they are able to effectively represent theUnited States with a maximum amount ofrespect and a minimal amount of conflict.

As such, mediation is a valuable tool thatevery lawyer should be able to use, when appro-priate, to assist a client in reaching a satisfac-tory resolution to a legal dispute.

Issues of Democracy, IIP Electronic Journals,Vol. 4, No. 3, December 1999

28

JOHN NEWKIRT’S ROOTS in the landof rural Georgia run deep. He inherited his347-acre farm in Garfield—about 40 milesnorth of Savannah—from his father and lateradded 147 acres of his own. He says his trou-bles began in 1984 when local USDA officialsdenied him a loan to run his farm for reasons hefeels were discriminatory. In 1990, he lost hisown land completely after the government fore-closed on him. He says he has been able to buyit back, but now rents it out rather than farmingit himself. “My land was taken from me,” hesays. “I will always have the memory of the painand suffering that caused.”

James Beverly of Burkeville, Virginia hasan even sadder story to tell. He lost his liveli-hood 15 years ago and is now working as acounselor in a federal prison in Petersburg notfar from the farm he used to own. “I was wipedout because I couldn’t get help,” he says. “I gota loan to buy breeding hogs, but was denied aloan for farrowing houses for them after I had

In April 1999, a federal judge approved

a settlement in the most significant civil

rights case ever to go to mediation. It

involved a group of black farmers who

alleged that the U.S. Department of

Agriculture (USDA) had discriminated

against them for more than a decade.

Contributing Editor David Pitts traces

the origins of this landmark mediation

that may set a precedent for avoiding

long and costly court proceedings in

civil rights and other civil cases in the

future.

Black Farmers v. the Department of Agriculture

by Dav id P i t t s

M e d i a t i o n a n d t h e C o u r t s

29

already bought the animals. To settle my debtwith the government for the livestock loan, Ihad to sell off my property and go out of thefarming business altogether.”

The experience of John Newkirt and JamesBeverly is far from unique. There has been amarked decrease in the number of farms ownedand operated by African Americans generallyover the decades. In 192O, there were 925,OOOblack-owned farms in the United States. By1992, according to USDA statistics, the numberhad plummeted to fewer than 18,OOO—from14 percent of the total down to one percent,most of them located in the South. Why thishappened is a subject of much debate, but mostobservers agree that discrimination by USDAwas a key factor, especially over the last twodecades. One of the salutary effects of the ulti-

mate resolution was a renewed commitment toeradicate any vestiges of racism in USDA’s programs.

USDA’s own investigation confirms the problem. An internal audit found that in severalSouthern states, including Georgia, local officestook an average of three times as long to processloan applications from black farmers comparedwith white farmers. The Associated Pressreports that between 198O and 1992, for everydollar loaned to white farmers, black farmersreceived just 51 cents. And in 1982 the U.S.Civil Rights Commission, a government entity,reported that “unless government policies ofneglect and discrimination are changed, theremay be no black farmers by the year 2OOO.”

By the late 1990s, African American farm-ers decided to act. In December 1997, they

John Newkirt on his farm in

Garfield, Georgia.

filed what became the largest civil rights classaction lawsuit in U.S. history. The suit allegedsystematic discrimination by USDA in delaying loans, denying loans outright, and withholdingtechnical assistance crucial to the farmers’livelihoods. The suit also alleged that manyblack farmers were impoverished by USDAneglect and discrimination, while others losttheir farms and sometimes their land completely.

The Case Goes to Mediat ion

But the case did not go to trial. The partiesagreed to mediation at the urging of U.S.District Judge Paul Friedman. “It is not unusu-al for many civil rights cases, indeed many civildisputes, to go to mediation,” says MichaelLewis, a pioneer in alternative dispute resolu-tion (ADR), who was selected by the parties tomediate the dispute. “The question is,” heasks, “what is the best way to resolve thesecases? Mediation takes less time than going tocourt, especially if there are appeals, whichwould have been likely in this case. It also isless costly, and you avoid the possibility of los-ing completely.”

“The farmers agreed to mediate becausethere had been a history of discrimination dat-ing back 20 years,” says Alexander Pires, chiefcounsel for the plaintiffs. “It had been a longprocess and they wanted it resolved.” MichaelSitcov, the lead attorney for the government,declined to comment. But Andrew Solomon, aspokesperson for USDA says, “I think it isobvious why we agreed to mediate. There wasclearly a problem with discrimination. Wewanted to deal with it and move forward.” Lewis

agrees. USDA wanted “a bad chapter” in its relationship with black farmers to be over with,he says.

President Bill Clinton also weighed in onthe issue. In a meeting with black farmers at theWhite House, which was attended by USDASecretary Dan Glickman, Clinton made it clearthat he wanted the claim on an agency in hisown executive branch of government to bebrought to a speedy and satisfactory conclusion.“I will do everything I can within my legalauthority to accelerate the settlement of theseoutstanding cases,” he remarked. “I will doeverything I can do to bring moral and politicalpressure to bear when possible.”

Two days after the White House meeting,on December 19, 1997, USDA, and the JusticeDepartment legal team acting in the agency’sbehalf, agreed to mediate the case. NeitherPires nor Lewis says the president’s statementwas critical, but it helped. “It was important tothe farmers because it said the president is tak-ing their concerns seriously,” says Lewis. “Butit wasn’t a silver bullet and it didn’t affect thecourse of the mediation.”

A Year-Long Process

It was agreed that the mediation would last sixmonths. But, in fact, “it took almost a year tothe day,” says Lewis. “My job was to get themto agreement. The complication was that thelawyers for the farmers were not representingone or two people, but many thousands. It’shard to get a sense of what 1O or 12,OOO peo-ple want. I think it was very important that thefarmers be dealt with not as individuals, but as

30

Michael Lewis at his office in Washington, D.C.

a group. We had to figure out a way to resolveall their claims together. This was one of theearly struggles.”

“I convened a lot of joint meetings with thetwo sides and held many separate meetings,”Lewis continues. “It was mostly the lawyers foreach side that were present. But representativesof the farmers attended some of the meetings;their lawyers had done a very good job of trav-eling around the country and talking to themabout what their needs were,” he adds. “Theprocess was difficult at first,” recalls Pires. “Inthe early stages, eight attempts failed. The dif-ferences with the government were too wide.”

But in the fall of 1998, an event occurredwhich was crucial in aiding the plaintiffs’ case.Congress passed, and President Clinton signedinto law, a bill that extended the statute of lim-itations back 17 years to 1981. “No one inCongress opposed extending the statute of limi-tations,” says Pires. “Who’s against farmers?” This was considered critical because, without

the extension, more than 9O percent of theplaintiffs would not have been able to receivecompensation since the alleged discriminationhad occurred too far in the past.

Lewis agrees the extension of the statute oflimitations facilitated a settlement but alsostresses the role of the court during the pro-ceedings as well. “The court was very activeand held periodic meetings to keep its finger onhow things were going. For example, the courtdecided a very important legal issue—allowingthe farmers’ cases to be banded together. Oncethe court decided that issue, progress was muchmore swift,” he says.

The End of a Pa in fu l Chapter

On April 14, 1999, Judge Paul Friedmanapproved a multi-million dollar, settlement ofthe case. The USDA engaged in “pervasive dis-crimination against African American farmers,”he said in a 65-page opinion released after thesettlement. The denial of credit and technicalassistance had a “devastating effect” on blackfarmers throughout the nation. The judge madeit clear that much remains to be done to undothe historical discrimination. “But the ConsentDecree represents a significant first step,” henoted.

In his opinion, Judge Friedman citedJames Beverly’s case in Virginia as an exampleof the injustice that had been done. He did notmince words. “The USDA broke its promise toMr. James Beverly,” he said. “It promised hima loan to build farrowing houses so that hecould breed hogs. Because he was AfricanAmerican, he never received that loan. He losthis farm because of the loan that never was.

31

Nothing can completely undo the discrimination of the past or restore lost land or lost oppor-tunities to Mr. Beverly, or to all of the otherAfrican American farmers whose representa-tives came before this Court.”

Speaking for the government, USDASecretary Dan Glickman heralded the settle-ment conceding that discrimination had indeedbeen a problem in his agency. “With thisapproval, USDA can move forward to putting apainful chapter of our history behind us,” hesaid. Glickman told CBS: “There was no ques-tion that in a lot of places in the country, minor-ity farmers did not get the loans that non-minor-ity farmers would get.” The USDA chief alsovowed to eradicate racism in the Department ofAgriculture. He had already taken action to re-establish the agency’s Office of Civil Rights thathad been disbanded in 1983 by the Reaganadministration.

The reaction of the lawyers for the plain-tiffs was ecstatic. “This is the largest recoveryin a civil rights case in the history of the coun-try. There are very few billion-dollar settle-ments,” Pires said at the time. Asked why thegovernment agreed to such a large settlement,he responds, “I think they decided they couldn’twin this one in court. Also, I think many gov-ernment officials knew there had been discrim-ination, recognized it, wanted to settle andmove on.”

Representative John Conyers (Democrat-Michigan), the dean of the Congressional BlackCaucus, also hailed the agreement calling it amilestone. “I heartily congratulate the blackfarmers who have labored so arduously and solong for vindication and economic relief,” heremarked.

Under the agreement, claimants need onlyshow minimal documentation to be eligible fora $5O,OOO tax-free, cash payment plus the for-giveness of debts to USDA—worth on average between $75,OOO and $1OO,OOO. Farmerscan claim more by going to arbitration—whichMichael Lewis also will oversee—but must pro-vide more documentation to do so. Asked howthe size of the settlement was determined,Lewis says, “the best answer I can give isthrough negotiation. I think the plaintiffs’lawyers looked at the average debt of the farm-ers and other relevant factors—but eventuallyjust through negotiation.”

It is understandable that an attorney suchas Lewis, one of the founders of ADR Associates,a leading company engaged in providing medi-ation services, should extol its benefits. But hestresses that mediation is not suitable for allcircumstances, even in civil cases. “There areimportant issues—important cases—where youreally do need a court to say, ‘this is the law ofthe land.’ This was true in the school segrega-tion cases of half a century ago, for example. Itwas an issue that clearly needed to go to theSupreme Court for final resolution, as it did,”he says. “But cases like that are few and farbetween.

“The way the consent decree is written, amonitor responsible to Judge Friedman will beappointed to oversee the implementation of thesettlement. That individual has not yet beenselected,” Lewis says. The cutoff date for thefarmers to file applications was October 12,1999, 18O days since the issuance of the con-sent decree. According to Pires and sourceswithin USDA, more than 15,OOO farmers filedahead of the deadline—many more than origi-nally anticipated—and most have chosen to file

32

under the general settlement provisions, notarbitration. The first settlement checks wereexpected to be mailed in November.

Most of the farmers are reportedly satisfiedwith the mediated settlement, but not all. JohnBoyd and Gary Grant, who lead two of the mostinfluential organizations representing blackfarmers and who are credited by many withhelping to organize their effort, say it did notprovide enough money to claimants who chosenot to pursue arbitration and did not requireenough changes in the loan process at USDA.But Lewis says it is important to understandthat no side wins everything in a mediation, thatin exchange for avoiding costly and long courtproceedings, each side must give a little.

“We Str ugg led So Long”

James Beverly, who also is the Virginia repre-sentative of a national organization for AfricanAmerican farmers, says he is proud JudgeFriedman mentioned him in his opinion aboutthe case as an example of what happened tothousands of black farmers. He says he is gen-erally satisfied with the agreement. “We didn’tget everything we wanted. But I approve of it.”He also says the majority of the farmers in hisarea have filed under the general settlementprovisions and already have received letters ofapproval.

As far as his own situation is concerned,James Beverly says he has chosen to pursuearbitration since he feels the financial loss heincurred through losing his farm was far greaterthan the general settlement terms provided for.Asked if he feels he will win, he responds, “Ifeel pretty confident about it.” But he wants itknown that the most important issue for him is

not the money. “It is that we struggled so longfor our voice to be heard. At long last, we arebeing heard.”

John Newkirt in Georgia calls the settle-ment “a very good gesture even though no oneis completely satisfied.” He says he chose tofile under the general settlement provisions andalready has received a letter back from the gov-ernment, although not yet a check. The Georgiafarmer also says that he lost more than he willget in compensation. “But to me the importanceof the settlement is not the checks they aremailing to us, but the respect they are nowshowing us.” He adds: “I appreciate the gov-ernment saying to black farmers. ‘You were eco-nomically disenfranchised. We recognize thatand want to make amends.’”

* * * *

Now nearing 70, John Newkirt is proud ofhis family’s contribution to American agricul-ture and is eager to take a visitor in his two-toned, pickup truck to see the cotton and othercrops that grow plentifully on his land. Hedescribes the struggle for a fair shake for blackfarmers as long and difficult, but it is testimonyto the greatness of America, he says, thatwrongs can be corrected here and progress canbe forged. “This is a country where you cansucceed, if given a chance,” he says. “We wererobbed of our dignity. But now we have it back.”

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33

Mediation is increasingly being used in the U.S. in

high profile cases. In late November 1999, a federal

judge appointed a mediator to assist Microsoft and

the Department of Justice in finding shared, middle

ground. The Justice Department has accused

Microsoft of monopolistic practices. The corpora-

tion denies the allegation and argues that the

degree of innovation and change occurring in the

technology field precludes that possibility. Although

a final ruling has not been issued by a court in the

case, an initial ruling did find Microsoft held a

monopoly power over desktop computers and that

the company uses this power to punish rivals.

The mediator in the case—U.S. Circuit Judge

Richard Posner—will have his work cut out for him

since the gulf between the U.S. government’s posi-

tion and Microsoft’s is very wide. But many

American newspapers are saying that if anyone can

successfully mediate this case it is Posner, who is

held in high regard in U.S. legal circles and is a dis-

tinguished federal appeals judge.

Initial press reaction to the move was supportive.

The Washington Post called it wise. “Though there

appears now to be little common ground between

the parties, it is a good idea for Judge Jackson (the

judge who appointed the mediator) to find out for

sure whether settlement is impossible before issu-

ing a ruling that could affect competition in the

high-tech area for years to come.”

The Chicago Tribune reported that both sides warm-

ly greeted the announcement. “It is the strongest

sign that both sides may be ready to mediate the

case,” the newspaper said. Its sources indicated that

Posner is widely trusted as fair and impartial with

unorthodox views that cannot be easily character-

ized politically.

The Boston Globe said that the appointment of

Posner “could raise hopes that a serious effort will

be made to settle this matter,” and raised the issued

of whether Microsoft might face more severe

penalties, including a breakup of the company if a

settlement is not reached.

Judge Posner can be expected to clearly indicate to

both sides the risks involved if an agreement is not

reached and the case goes back to the courts for

final adjudication, with a lengthy and costly appeals

process the likely aftermath of a verdict.

34

H i g h P ro f i l e C a s e G o e s t o M e d i a t i o n

35

B i b l i o g r a p h y

Bercovitch, Jacob, ed.Resolving International Conflicts:The Theory andPractice of Mediation, Lynne Rienner, 1995.Includes Kjell Skjelsboek and Gunnar Fermann,“The U.N. Secretary General and the Mediation of International Disputes,” pp. 75–106, andRaymond Cohen, “Cultural Aspects of Inter-national Mediation,” pp. 107–128.

Bergman, Edward J. and Bickerman, eds.Court-Annexed Mediation: Critical Perspectives onSelected State and Federal Programs. Bethesda,MD: Pike and Fisher, 1999.

Beyer, Jonathan A.“Non-Lawyer Practitioner: Practicing Law at theMargins: Surveying Ethics Rules for Legal Assistantsand Lawyers Who Mediate,” Georgetown Journal ofLegal Ethics, vol. 11,Winter 1998, pp. 411–420.

Brennan, Lisa ”What Lawyers Like: Mediation,” The National LawJournal, vol. 22, no. 12, November 15, 1999, pp. A1,A10.

Chayes,Abram ”The Role of the Judges in Public Law Litigation,”Harvard Law Review, vol. 89, 1996, pp. 1281+.

Chodosh, Hiram E. and Stephen A. Mayo “The Palestinian Legal Study: Consensus andAssessment of the New Palestinian Legal System,”Harvard International Law Journal, vol. 38, Spring1997, pp. 375–441.

Chodosh, Hiram E., Stephen A. Mayo,A.M.Ahmadi & Abhishek Singhvi.“Indian Civil Justice System Reform: Limitation andPreservation of the Adversarial Process,” New YorkUniversity Journal of International Law and Policy,vol. 29, no. 1–2, Fall 1997, pp. 1–78.

Chodosh, Hiram E., Stephen A. Mayo,Fathi Naguib & Ali El Sadek.“Egyptian Civil Justice Process Modernization:A Functional and Systemic Approach,” MichiganJournal of International Law, vol. 17, Summer 1996,pp. 865–917.

Doyle, Stephen Patrick and Roger Silve Haydock.Without the Punches: Resolving Disputes WithoutLitigation. Minneapolis: Equilaw, Inc., 1991.(Especially Chapter 5: Mediation pp. 69–82 andChapter 6: Mediation Process, pp. 83–93).

Duve, Christian “Dispute Resolution in Globalization Context,”New York Law Journal, April 12, 1999, p. 9.

Fu r ther in format ion on Med ia t ion

and the Cour t s

36

Fisher, Roger and William R. UryGetting to Yes: Negotiating Agreement Without Giving In. Rev. ed. New York:Viking Penguin, 1991.

Goldberg, Stephen, Nancy Rogers and Frank E.A. SandlerDispute Resolution. 3rd ed. Gaithersburg, MD:Aspen Law and Business, 1999.

Gordon, Elizabeth Ellen”Why Attorneys Support Mandatory Mediation,”Judicature, vol. 82, no. 5, March–April 1999,pp. 224–231.

Henning, Stephanie “A Framework for Developing MediatorCertification Programs,” Harvard Negotiation LawReview, vol. 4, Spring 1999, pp. 189–229.

Jacobs, Paul”How Mediation Can Help Get Rid of thatUnresolvable File—Interest-based Mediation CanHave Numerous Practical Applications,” TheLawyers Weekly, vol. 18, no. 4, May 29, 1998.

Keltner, John W.The Management of Struggle: Elements of DisputeResolution Through Negotiation, Mediation andArbitration. Cresskill, NJ: Hampton Press, 1994.

Kosier, Elizabeth ”Mediation in Nebraska: an Innovative Past, aSpirited Present, and a Provocative Future,”Creighton Law Review, vol. 31, December 1997,pp. 183–205.

Kreindler, Richard H.“A New Impetus for ADR in France?:The NewFrench Law on Mediation and Conciliation,” WorldArbitration and Mediation Report, vol. 7, March1996, pp.59+.

Lempereur,Alain“Negotiation and Mediation in France:TheChallenge of Skill-Based Learning and Interdisci-plinary Research in Legal Education,” HarvardNegotiation Law Review, vol. 3, Spring 1998,pp. 151–174.

Lepera, Christine and Jeannie Costello “The Use of Mediation in the New Millennium,”New York Law Journal, May 6, 1999, pp. 3, 6.

“Making Mediation Work in Russia and Ukraine:The Need for an Appropriate Legal Framework,”Alternatives to the High Cost of Litigation, vol. 16,no. 11, December 1998, pp. 171+.

McCrory, John P.“Mandated Mediation of Civil Cases in StateCourts: A Litigant’s Perspective on Program ModelChoices,” Ohio State Journal on Dispute Resolution,vol. 14, 1999, pp. 813–853.

Niemic, Robert J.Mediation & Conference Programs in the FederalCourts of Appeal: A Sourcebook for Judges andLawyers.Washington: Federal Judicial Center, 1997.

Ordover,Abraham P.Alternatives to Litigation: Mediation, Arbitration, andthe Art of Dispute Resolution. Notre Dame, IN:National Institute for Trial Advocacy, 1994.

Perkovich, Robert“A Comparative Analysis of Community Mediationin the United States and the People’s Republic ofChina,”Temple International and Comparative LawJournal, vol. 10, Fall 1996, pp.313–328.

Plapinger, Elizabeth and Donna Stienstra ADR and Settlement in the Federal District Courts:A Sourcebook for Judges & Lawyers,.Washington:Federal Judicial Center and the CPR Institute forDispute Resolution, 1996.Available at http://www.fjc.gov/ALTDISRES/adrsource/adrblurb.html

Rogers, Nancy H. and Craig A. McEwen ”Employing the Law to Increase the Use ofMediation and to Encourage Direct and EarlyNegotiations,”.Ohio State Journal on DisputeResolution, vol. 13, 1998, pp. 831–864.

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Shaw, Dana”Mediation Certification: An Analysis of theAspects of Mediator Certification and an Outlookon the Trend of Formulating Qualifications forMediators,” Toledo Law Review, vol. 29,Winter1998, pp. 327–352.

Stepp, John R., Kevin M. Sweeney and Robert L. Johnson”Interest-based negotiation: An engine-drivingchange,” Journal for Quality & Participation, vol. 21,no. 5, September/October 1998, pp.36–41.

Stienstra, Donna and Thomas E.Willging Alternatives to Litigation: Do They Have a Place inthe Federal District Courts,Washington: FederalJudicial Center, 1995.Available athttp://www.fjc.gov/ALTDISRES/altlitig/altlitig.html

Van Winkle, John R.”As mediation matures:What is its goal; what’s the role of the advocate?” The Indiana Lawyer,October 29, 1997, p. 32.

Webne-Behrman, Harry M.”The Emergence of Ethical Codes and Standardsof Practice in Mediation:The Current State ofAffairs,” Wisconsin Law Review, vol. 1998, no. 5,1998, pp. 1289–1304.

Woo, Kwang-Taeck”Court-Connected Mediation in Korea,” DisputeResolution Journal, vol. 54, no. 2, May 1999, pp. 36+.

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I n t e r n e t S i t e s

Academy of Family Mediators (AFM)

http://www.mediators.org

AFM is the largest family mediation organization in existence. Members are mediators working in avariety of settings including private practice, courts,schools and government in the United States andinternationally.

ADR & Mediation Resources

http://adrr.com/

Contains substantial on-line materials for alter-native dispute resolution and mediation.

American Arbitration Association

http://www.adr.org/

The most comprehensive site for up-to-the-minute information about mediation, arbitrationand other forms of alternative dispute resolution(ADR).

American Bar Association: Section of DisputeResolution

http://www.abanet.org/dispute/

Association of Attorney-Mediators (AAM)

http://www.attorney-mediators.org/

A nonprofit trade association whose members arequalified, independent attorney-mediators offeringmediation services.

FindLaw:ADR/Arbitration Articles

http://library.findlaw.com/ADRArbitration_1.html

Guide to Alternate Dispute Resolution (ADR)

http://www.hg.org/adr.html

Sponsored by Hieros Gamos:The ComprehensiveLaw and Government Portal, this site gives anoverview of ADR with international sources. Sitealso available in French, German, Italian andSpanish.

The Justice Center of Atlanta (JCA)

http://www.justicecenter.org/

The Justice Center of Atlanta (JCA) began as apilot project in 1977 funded by the U.S. Depart-ment of Justice. It was one of three sites nationallychosen to implement the Neighborhood JusticeCenter Project whose objective was to determineif alternatives to litigation, such as arbitration andmediation, could more quickly resolve disputeswithout violating any party’s due process or civilrights.

I n te r net S i tes on Med ia t ion

and the Cour t s

39

Language of ADR: Glossary

http://www.academy-experts.org/language.htm

Law Journal Extra! Arbitration & ADR

http://www.ljextra.com/practice/arbitration/arbrsrc.html

Legislation, recent court decisions, news updates,articles and forums on alternative dispute resolu-tion.

Legal Information Institute:Alternative DisputeResolution

http://www.law.cornell.edu/topics/adr.html

An overview of ADR and U.S. cases, internationalconventions and treaties and links to ADR sources.

Mediate-Net

http://www.mediate-net.org/

A research and demonstration project of theProgram for Dispute Resolution at the Universityof Maryland School of Law and the Center forOn-Line Mediation.

Mediation Information & Resource Center(MIRC)

http://www.mediate.com/

Society of Professionals in Dispute Resolution(SPIDR)

http://www.spidr.org/

An international membership association commit-ted to the advancement of the highest standardsof ethics and practice for dispute resolvers.

U.S. Department of Justice Office of DisputeResolution

http://www.usdoj.gov/odr/index.html

The office is responsible for ADR policy matters,ADR training, assisting lawyers in selecting the rightcases for dispute resolution, and finding appropri-ate neutrals to serve as mediators, arbitrators, andneutral evaluators.

Victim Offender Mediation Association (VOMA)

http://www.voma.org/

Created so that greater networking among practi-tioners and other interested individuals wouldenhance the overall credibility of victim offendermediation and reconciliation programs within thejustice community.

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E L E C T R O N I C J O U R N A L S O F T H E U . S . D E P A R T M E N T O F S T A T E

V O L U M E 4 N U M B E R 3D E C E M B E R 1 9 9 9

M E D I A T I O N

A N D

T H E C O U R T S