Additionally, our courts consistently report that even
when a settlement is not reached in a mediated case,
the remaining issues before the court are narrower than
in those cases where no mediation has been held. Parties are calmer and more organized, having themselves
sorted through and addressed not only the tangible
issues before the court, but also the interaction between
them as they discuss what has taken place. Mediation
provides an opportunity for the interaction to become
more positive and constructive, even when they continue
to disagree. As a result of being clearer about the meaning of the conflict for themselves and understanding the
other party’s position, both parties know “where they
stand” within the conflict, which translates into a more
streamlined case for the court.
MAKING THE CHOICE OF ADR
MORE OF A CHOICE
Alternative dispute resolution is intended to be a vol-
untary process, and mediation settlements are intended
to represent voluntary choices by the parties to enter
into settlements instead of going further in the litiga-
tion. Too often, those choices are illusory ones, because
statutes or judge’s preferences effectively force parties
into settlement-focused mediation. Although media-
tion is nominally voluntary, the needs of the court weigh
heavily on parties and on centers that provide mediation.
Parties rarely feel as though they have a choice when
a judge refers them to mediation, and parties who try
mediation without resolving a case are sometimes sent
back by the court to “try harder” to reach a resolution.
Maintaining a truly voluntary process is squarely
on the shoulders of the mediator. One way that the
Mediation Center has balanced the requirements of the
courts with party choice is to make very clear how the
mediation process works with commercial mediation
in court. Explaining that the judge refers all cases to
mediation to encourage parties to try the process, that
it is up to the parties to decide if and how they want to
engage in mediation and that their case is still pending
in court, helps to mitigate the tension between these
two worlds. The mediator has this responsibility in any
model of mediation, but the emphasis of the transformative model on party empowerment and choice
appropriately focuses the mediator’s attention on the
parties’ right to choose not to settle and instead to proceed with the litigation, therefore reducing barriers to
Transformative mediation for commercial cases ultimately provides the benefits that courts, attorneys
and clients seek when they engage in a mediation process. Preserving the core value of self-determination
as well as providing a multitude of advantages for all
stakeholders involved makes it well suited for litigated
Parties rarely feel as though they have a choice
when a judge refers them to mediation, and
parties who try mediation without resolving a
case are sometimes sent back by the court to
“try harder” to reach a resolution.
A previous version of this article was published in 2012
in Opinio Jurisin Comparatione, an Italian on-line journal.
Bush, Robert A. Baruch, “Staying in Orbit or Breaking Free: The Relationship of Mediation to the Courts Over Four Decades”, North Dakota
Law Review, Vol. 84, p. 705 ff (2008).
Folger, Joseph P., “Transformative Mediation and the Courts: A Glimpse
at Programs and Practice,” in Transformative Mediation: A Sourcebook:
Resources for Conflict Intervention Practitioners and Programs, (
Institute for the Study of Conflict Transformation, 2010).
Kolb, Deborah & Kenneth Kressel, “Conclusion: The Realities of Making Talk Work,” in D. Kolb, ed., When Talk Works: Profiles of Mediators
Miller, Jody B., “Choosing to Change: Transitioning to the Transformative Model in a Community Mediation Center,” in Transformative Mediation: A Sourcebook.
Miller, Peter & Robert A. Baruch Bush, “Transformative Mediation and
Lawyers: Insights from Practice and Theory,” in Transformative Mediation: A Sourcebook.