Trends in Mediation
Mediation, in a sense, dates back many hundreds of years to the days when village elders settled controversies in small towns throughout the world. By the early 1900’s, mediation was primarily limited to labor law as a method for resolving union/management disputes.
In the late 1980’s, state courts in certain states, e.g., California, began requiring mediation of civil litigation, but the mediation movement really did not gain much momentum until passage of federal legislation, 28 U.S.C. §651, 652 et seq. (1988).[2] After that, federal courts adopted local rules requiring mediation, or some other form of alternate dispute resolution (“ADR”)[3] in civil cases.
Frequency – They Are Here to Stay
The most obvious trend regarding mediation is that virtually every civil case is mediated at least once. Indeed, many civil cases are mediated twice, the second session often by Zoom or phone. It is fair to say, especially with complex disputes, mediation can be more of a process than an event.
Opening Statements – They are Vanishing
In the early years of mediation, it was common for counsel to make jury style opening statements. This practice, quite properly in my opinion, has fallen into disfavor, and the overwhelming trend is to dispense with this type of opening statement.[10] Alternatives to this type of opening statement are informational openings, i.e., non-inflammatory statements, a simple meet and greet session or even no initial joint session at all.
Initial Joint Session – Nice Not Knowing You
There is somewhat of a trend to dispense with the initial joint session and commence the mediation immediately with caucus sessions. This works well particularly in highly contentious cases, such as shareholder disputes and “business divorces.” The reason for this is that the parties, and sometimes even their counsel, are so angry about the facts and the litigation that to have them sit in the same room is simply not a good idea.
This blog post is part of David Schaefer’s peer-reviewed article, “Some Thoughts About Mediation,” published in the Litigation Counsel of America’s Litigation Commentary & Review. For more information or assistance regarding alternative dispute resolution, please reach out to request a consultation, call us at 216-696-1422, or visit David’s bio for his contact information to reach out to him directly.
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[1] An earlier and slightly different version of this article was first presented to members of the Ohio Women’s Bar Association in February of 2018.
[2] See also 28 U.S.C. §473 (1990).
[3] Most federal courts already had local rules regarding arbitration, but new forms, such as Early Neutral Evaluation and Conciliation, were adopted. Most state courts then followed suit.
[4] This is not only the trend in Ohio, but also in other parts of the country. See, Mediation Trends in West Virginia, 2010 Jun., W. Va Law 48.
