Anyone who has spent any time mediating, either representing a party or acting as the neutral, knows that the role of a mediator is typically defined by the parties, the nature of the litigation and the best path toward a resolution. Certainly, a mediator is a neutral facilitator, but the same can be said of arbitrators. All forms of “alternative dispute resolution” come down to the question of whether the neutral is acting in a facilitator role, advisory role or determinative role. These roles are self-explanatory, and most mediators have likely started a mediation in one of those capacities, only to find that the parties or the litigation required them to shift into a different role during the course of mediation.
In order to recognize and explore the most effective means for our committee to support bankruptcy courts, litigators and mediators alike, I respectfully suggest that we should consider evolving from the identity of the Mediation Committee to the “Dispute Resolution Committee.” Of course, a name is just a name, and we are not defined by it. Names can, however, be limiting and sometimes misunderstood.
Most jurisdictions have or are moving toward mandatory mediation for all adversary proceedings, and voluntary mediation for some contested matters. The acceptance of mediation to ease the burden on court dockets and expense to parties has substantially expanded over the past 10-15 years. Mediation, however, has not always been the preferred means of alternative dispute resolution. Many state courts have previously relied upon nonbinding arbitration, which was a form of advisory dispute resolution in which a neutral arbitrator heard parties’ positions and issued an opinion from which either side could appeal and proceed to be heard by a judge or jury. Many contracts, both consumer and commercial, still default to inclusion of a binding arbitration provision to limit the costs and uncertainty of a jury trial should the parties to the contract find themselves at odds. (The enforceability of a binding arbitration provision in bankruptcy is a question for another article.)
In my experience, the origins of mediation grew out of judicial recognition of cases that were not suitable for or would not be best resolved by a bench or jury trial. Whether because no one was going to like the outcome or because the expense and time would not be an efficient use of resources, judges are often best at recognizing cases that are better resolved outside of a courtroom. Of course, judges could not and do not “mediate” cases that are being litigated in front of them, but they could hold “settlement conferences.” These were/are meetings at which a judge may try to have frank discussions with parties and their lawyers about what results they were seeking and what could happen at trial. Judges also frequently referred matters to other members of their bench for mediation, and, of course, still do for significant issues that require a judicial hand to guide parties toward an appropriate resolution.
The point is that there are many avenues available to courts and litigants to provide a path to a resolution of disputes that may be suitable in any given case. The more that we talk and consider the most effective roles that a neutral participant can play in the resolution of disputes, the more we can improve ourselves as professionals and expand the options for courts and the parties and lawyers that appear before them.