THE MEDIATION COMA: PURPOSEFUL OR PROBLEMATIC

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THE MEDIATION COMA:PURPOSEFUL OR PROBLEMATIC

Kimberlee K. Kovach*

I. OVERVIEW

While many books, articles and speeches are quick to note(and even applaud) the growth and expansion of mediation,1others have more recently questioned whether mediation has ful-filled its promise.2 An initial issue to consider is its promise ofwhat. Many might say of use—that mediation has not been utilizedin the vast majority of disputes, small or large, locally or interna-tionally.3 This was the primary impetus in bringing us together forthis Symposium.4 Another issue explored throughout this Sympo-sium is exactly what the use of mediation may or should be. And

* Kimberlee K. Kovach has served as a teacher, trainer, scholar and practitioner in the fieldof mediation for over thirty-five years. She taught a variety of ADR courses in legal educationfor over twenty-five years, published numerous books and articles, and was instrumental in earlymediation clinics. She currently serves as an arbitrator, mediator and trainer, and is a member ofseveral national neutral panels.

1 E.g., Thomas J. Stipanowich, ADR and the “Vanishing Trial”: The Growth and Impact of“Alternative Dispute Resolution,” 1 J. OF EMPIRICAL LEGAL STUD. 843 (2004); Stephen B, Subin,A Traditional Looks at Mediation: Its Here to Stay and Much Better Than I Thought, 3 NEV. L. J.196 (2003–2004). And most recently, on my panel at this very Symposium, Jackie Nolan-Haleyilluminated this paradox by illustrating that in terms of mediation’s use, it can be viewed as boththe “best of times”, and the “worst of times”. See Jacqueline Nolan-Haley, Symposium, Media-tion: The Best and Worst of Times, 16 CARDOZO J. CONFLICT RESOL. 731 (2015).

2 Many years ago in their seminal work, The Promise of Mediation, Professors Baruch Bushand Joseph Folger, two of the very first to do so, highlighted the fact that mediation had lostsome of the potential the process had to assist individuals in conflict. See ROBERT A. BARUCH

BUSH & JOSEPH FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH

EMPOWERMENT AND RECOGNITION (1994).3 This concern was primarily with the lack of mediation use within the European Union, in

accordance with the study. See GIUSEPPE DE PALO ET AL., EUROPEAN PARLIAMENT, ‘REBOOT-

ING’ THE MEDIATION DIRECTIVE: ASSESSING THE LIMITED IMPACT OF ITS IMPLEMENTATION

AND PROPOSING MEASURES TO INCREASE THE NUMBER OF MEDIATIONS IN THE EU (2014),available at http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493042/IPOL-JURI_ET%282014%29493042_EN.pdf.

4 As noted by Professor Lela Love in her introduction to the Symposium, it was GiuseppeDe Palo’s analogy of mediation to Sleeping Beauty that served as the foundation for the topicsdiscussed at the Symposium and included in this issue. See Giuseppe De Palo, A False ‘PrinceCharming’ Keeps ‘Sleeping Beauty’ in a Coma: On Voluntary Mediation Being the True Oxymo-ron of Dispute Resolution Policy, KLUWER MEDIATION BLOG (Apr. 15, 2014).

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no doubt many different views exist,5 as the players and actors inthe dispute resolution and mediation movements have had somevery divergent thoughts about what mediation could offer—and towhom it was or should be offered. What exactly then was thatpromise? Was it of a process that settled disputes in any way itcould? Or was it a promise of universal use? Or was it a processthat provided individuals opportunities for empowerment and self-determination? Have any of these promises been realized? ThisArticle explores these questions, initially from a historical context.In examining several factors that impacted the mediation process,including the litigation system, the unfortunate coma emerges.

Certainly, I believe the promise still exists—but remains pri-marily unrealized. As a result, mediation is not only asleep, butalso in a complete coma. On one hand, this sleep, this coma, mayallow the process to awake only when it is safe. Alternatively, me-diation may remain in the coma, resulting in a slow, but sure,death.6 Exploring just how we got here, specifically how and whymediation is in a coma, may not awaken her, but can provide abetter perspective of the difficulties mediation encountered overthe years. Others, too, have provided their reflections and ques-tions concerning what happened to that early promise of media-tion. With a better understanding of its history or diagnosis of thecoma, we might learn how to awaken mediation and not encounterthe coma inducing incidents in the future.

After a brief historical review, I then address possible theoriesof the cause of this coma. Drawing an analogy to comas in themedical field, two primary causes are explored: those being thepurposeful, deliberate, life- saving coma, and the other the acciden-tal coma resulting from a traumatic event. In either situation, how-

5 For example, Professor Baruch Bush questions whether there has been too much empha-sis on settlement. And for many years, much dialogue centered upon what is now commonlyknown as the “evaluative-facilitative debate.” See Leonard L. Riskin, Understanding Mediators’Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOT. L. REV. 7,25–31 (1996); Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin’sGrid, 3 HARV. NEGOT. L. REV. 71, 92–93 (1998). And while Giuseppe De Palo advocates formandatory use in primarily legal matters, as will be apparent in subsequent sections of this Arti-cle, I advocate for expansion of use outside of “legal disputes,” as I have in the past. SeeKimberlee K. Kovach, The Vanishing Trial: Land Mine on the Mediation Landscape or Opportu-nity for Evolution: Ruminations on the Future of Mediation Practice, 7 CARDOZO J. CONFLICT

RESOL. 27 (2005).6 I, of course, am not the first to mention the death of mediation. Several years ago, others

contemplated mediation’s demise. Eric R. Galton, The Preventable Death of Mediation, 8 DISP.RESOL. MAG. 23 (2002); Jeff Krivis, Preventing the Death of Mediation, FIRST MEDIATION COR-

PORATION, http://www.firstmediation.com/resources/?p=30 (last visited Mar. 5, 2015).


2015] THE MEDIATION COMA 757

ever, numerous questions surround if, when, and how to bring thecoma to an end. Believing, in accordance with the subject of thisSymposium, that mediation is a sleeping beauty, then it may beimperative for the survival and endurance of the process that itawaken—for if left lingering in a coma for too long, survival be-comes questionable.

II. GAINING PERSPECTIVE: A STROLL DOWN MEMORY LANE

Before directly addressing the slumber, or coma, that we findthe Sleeping Beauty named Mediation engaged in, a retrospectiveexamination of mediation in the United States may help us under-stand what has happened.7 In other words, how did we get to thisplace? A short stroll down memory lane provides some context.While space, time, and most importantly, the focus of this Article,do not allow me to provide a complete history of the modern medi-ation movement,8 some review, reflection, and observation is cer-tainly warranted.9 In fact, reflection is particularly important, aswe ponder why such a promising process lies nearly dormant.

7 While my focus in this piece is on mediation’s development within the United States, it isalso clear that this phenomenon is not limited. See, e.g., Mordehai (Moti) Mironi, Mediation v.Case Settlement: The Unsettling Relations Between Courts and Mediation—A Case Study, 19HARV. NEGOT. L. REV. 173 (2014) (which examines the case of mediation use within the courtsystem in Israel).

8 No doubt readers will likely be able to put together a great deal of history based upon thecontent of many of the articles in this Symposium. It is also likely that each history will containthat perspective of the individual author from their personal experiences as an eyewitness to thathistory. See Nolan-Haley, supra note 1; Giuseppe De Palo & Romina Canessa, Symposium,Sleeping? Comatose? Only Mandatory Consideration of Mediation Can Awaken Sleeping Beautyin the European Union, 16 CARDOZO J. CONFLICT RESOL. 713 (2015); Donna Erez-Navot, Sym-posium, The Repeat Player Effect in Child Protection Mediation: Dangers of and ProtectionsAgainst Second-Class Justice for Marginalized Parties, 16 CARDOZO J. CONFLICT RESOL. 831(2015); Joseph B. Stulberg, Symposium, Mediator Misunderstanding of Bargaining Basics: Head-ing in an Ugly Direction, 16 CARDOZO J. CONFLICT RESOL. 807 (2015); Robert A. Baruch Bush& Joseph P. Folger, Symposium, Reclaiming Mediation’s Future: Re-Focusing on Party Self-De-termination, 16 CARDOZO J. CONFLICT RESOL. 741 (2015); Eric R. Galton, Symposium, The Me-diation Witches, 16 CARDOZO J. CONFLICT RESOL. 825 (2015); James R. Coben, Symposium,Barnacles, Aristocracy and Truth Denial: Three Not So Beautiful Aspects of Contemporary Medi-ation, 16 CARDOZO J. CONFLICT RESOL. 779 (2015).

9 Others have also explored this history. See, for example, Patrick Fn’Piere & Linda Work,On the Growth and Development of Dispute Resolution, 81 KY. L. J. 959 (1992–1993);KIMBERLEE K. KOVACH, MEDIATION: PRINCIPLES AND PRACTICE 30–32 (3d ed. 2004).



So in the beginning, (but not the very beginning10), mediationwas used in the United States in the labor context, to assist inresolving, and even preventing, strikes and the shut down of thelabor force.11 But in other matters, it was not very popular or evenknown.12 The Pound Conference, held in 1976, is often cited as thebeginning of the “Modern Mediation Movement.”13 Although atthat time a few community mediation programs were already inexistence,14 it was the focused effort resulting from the Pound Con-ference that ignited the subsequent development of many addi-tional programs. During the Pound conference, a call for separatecommunity mediation centers, then called Neighborhood JusticeCenters, was made.15 At the same time, some discussions aboutthe use of ADR in court cases were held as well.16 After the con-

10 See KOVACH, supra note 9. While often it is the use of mediation in labor matters that isviewed as the start of actual mediation use in the United States, we also know that a number ofless formal uses existed. Id.

11 This was the impetus for the enactment of the Railway Labor Act and the creation of theNational Mediation Board, as well as mediation work with the National Labor Relations Board.See Eric H. J. Stahlhot, Mission Impossible: The Hollow Promise of Judicial Review of MediationUnder the Railway Labor Act, 81 U. DAYTON L. REV. 703 (1993).

12 It, of course, is likely that some individuals and even businesses were aware of some alter-native forms of dispute settlement or resolution, yet most resorted to lawyers for assistance.Although at sometimes lawyers, as counselors at law, actually assumed the role of conciliators,such an approach gave way to the more adversarial view of litigation, the win-lose paradigm withall of the trappings of an argumentative process.

13 For a review of the Pound Conference, see A. Leo Levin & Russell R. Wheeler, Epilogueto A. LEO LEVIN ET AL., THE POUND CONFERENCE: PERSPECTIVES ON JUSTICE IN THE FUTURE:PROCEEDINGS OF THE NATIONAL CONFERENCE ON THE CAUSES OF POPULAR DISSATISFACTION

WITH THE ADMINISTRATION OF JUSTICE 289, 291 (A. Leo Levin & Russell R. Wheeler eds.,1979). And for a critique of the subsequent process development, see Kimberlee K. Kovach,Privatization of Dispute Resolution: In the Spirit of Pound but Mission Incomplete: LessonsLearned and a Possible Blueprint for the Future, 48 S. TEX. L. REV. 1003 (2007).

14 Early work was through the United States Department of Justice’s Community RelationsService, established in 1964, which helped to prevent violence and facilitated open discussionsduring the implementation of the Civil Rights Act. Soon thereafter, in the early 1970s, a fewcommunity programs were established, often with financial assistance from the United StatesDepartment of Justice Law Enforcement Assistance Administration (“LEAA”). These includedthe Philadelphia Municipal Court Arbitration Tribunal and the Columbus Ohio Night Prosecu-tor’s Program (“NPP”). In addition, early work in mediation began at the Rochester Commu-nity Dispute Service Project, sponsored by the American Arbitration Association. See AboutUs, CENTER FOR DISPUTE SETTLEMENT, www.cdsadr.org/about (last visited Mar. 5, 2015).

15 Levin & Wheeler, supra note 13, at 289, 291.16 For example, in his remarks, Professor Sander discussed the potential of a variety of op-

tions for dispute resolution in addition to litigation. Frank E. A. Sander, The Varieties of DisputeProcessing, in THE POUND CONFERENCE: PERSPECTIVES ON JUSTICE IN THE FUTURE: PROCEED-

INGS OF THE NATIONAL CONFERENCE ON THE CAUSES OF POPULAR DISSATISFACTION WITH THE

ADMINISTRATION OF JUSTICE, supra note 13, at 289, 291; see also Dorothy J. Della Noce, Media-



ference, the primary work involved developing these centers,17 andthe community mediation programs were initially focused on themediation of cases or matters where parties did not or could nothave access to the court system.18 Some work then moved to thesmall claims courts, and soon mediation use in family and divorcematters was urged.19 Both the small claims cases and family mat-ters evolved into early court-connected mediation in a fewjurisdictions.

In re-examining the vision of mediation and ADR at the timeof the conference, the perspective was one of a center providingindividuals assistance in selecting the process or procedure thatwould best address and resolve a particular dispute or conflict.20

As I have illuminated elsewhere, the consideration of a private sys-tem of “justice” was a foundation of the comments at the Poundconference.21 In his infamous paper and talk, Professor Sandersuggested a multi-door center, when individuals would first go,prior to going to the courthouse.22 Mediation was viewed as a firststep along with other options.23 At that time, the vision was notthat these processes were law like, but rather were separate anddistinct resolution procedures. Such vision was also expressed bythen Chief Justice Berger in his introductory remarks to the confer-ence, calling for increased use of informal methods of dispute set-tlement.24 It seemed clear that the procedures would not be part ofthe legal system, but rather a truly private system of resolution or

tion Theory and Policy: The Legacy of the Pound Conference, 17 OHIO. ST. J. ON DISP. RESOL.545 (2002).

17 Edith B, Primm, The Neighborhood Justice Center Movement, 81 KY. L. J. 1067, 1075(1993).

18 Id.19 To review the history and evolution of mediation in family and divorce matters, see Nancy

J. Foster & Joan B. Kelly, Divorce Mediation: Who Should Be Certified?, 30 U.S.F. L. REV. 665(1996).

20 Sander and Stephen Goldberg later expanded upon this idea of process selection in aseminal article. See Frank E.A. Sander & Stephen B. Goldberg, Fitting the Forum to the Fuss: AUser-Friendly Guide to Selecting an ADR Procedure, 10 NEGOT. J. 1 (1994).

21 Kovach, supra note 13.22 Sander, supra note 16.23 Id. at 84; Levin & Wheeler, supra note 13, at 291.24 The Honorable Warren E. Burger, Chief Justice of the United States, Agenda for 2000

A.D.—A Need for Systematic Anticipation, Keynote Address Before the National Conference onthe Causes of Popular Dissatisfaction with the Administration of Justice (April 7, 1976), in THE

POUND CONFERENCE: PERSPECTIVES ON JUSTICE IN THE FUTURE: PROCEEDINGS OF THE NA-

TIONAL CONFERENCE ON THE CAUSES OF POPULAR DISSATISFACTION WITH THE ADMINISTRA-

TION OF JUSTICE, supra note 13, at 32–33.



justice.25 The benefits of these potential private systems were due,at least in part, to some of the downsides and difficulties in thecourt system. But very quickly these visions and objectives werereplaced by the idea of using additional dispute resolutionprocesses within the courthouse, or in the context of litigation. Es-sentially, it took no time at all for the multi-door center to becomeknown as the multi-door courthouse—so the paradigm of resort tocourt first remained unchanged. The first stop was the legal systemwith all the entrapments of litigation. Thus, as programs were im-plemented, it was within the context of litigation. Only then wereparties instructed about a mediation “alternative,” which, as dis-cussed further,26 was not all that “alternative.” But I am getting abit ahead of myself.

Another illustration of that early view of mediation was pro-vided, ironically enough, by the United Sates Supreme Court, andwas included in the opening remarks to this conference.27 In anoften-quoted statement by then Justice Sandra Day O’Connor, shespecifically noted that mediation was to be the first step, beforeresorting to the courts.28 Specifically, she stated, “the courts of thiscountry should not be the places where resolution of disputes be-gins. They should be the places where the disputes end after alter-native methods of resolving disputes have been considered andtried.”

At this time, many of us involved in early mediation work hadvisions that mediation would become the initial step in addressingconflict and perhaps the primary dispute resolution process. Yet,as I have mentioned before, confusion arose. While some in thelegal establishment viewed this new system to be apart from thelegal system or courthouse, this vision was soon interpreted as “apart of” that system.29 And difficult issues surrounded just how theparties, potential process users including individuals, businesses,and institutions would learn about mediation. Awareness andknowledge about mediation were necessary if they were to makedecisions to first attempt resolution through mediation beforeresorting to other (legal) action. Actual attempts, albeit very few,were made to inform the general public about mediation and en-

25 I have explored this topic at great length about the disconnection between the vision atthe Pound Conference and the resulting ADR system. See Kovach, supra note 13.

26 See infra notes 45–54 and accompanying text.27 Paula Shulman restated those statements while introducing this Symposium.28 Justice Sandra Day O’Connor, Address at the Consumer Dispute Resolution Conference:

Exploring the Alternatives (Jan. 21, 1983).29 Kovach, supra note 13, at 1013.



courage its use. When for example, the ABA Special Committeeon the Resolution of Minor Disputes30 sponsored a pilot programon the Multi-Door Courthouse, public relations efforts were madein two locations. In Houston, for instance, the media, primarilytelevision news, was used to inform citizens about the availabilityof mediation and other processes that were available for disputeresolution.31 And in Tulsa, information about the dispute resolu-tion options was advertised in retail establishments, such as grocerystores. While no hard statistics were gathered, we know anecdot-ally that this had very little impact upon use. And these attemptswere minimal as little funding was available. Sadly, it remains thecase today that efforts to “advertise” mediation or engage in gen-eral public relations are quite inadequate at best.32

In these early, pre-Pound experimental programs,33 the valueof party empowerment was a key element of the mediation pro-cess. I recall that an important component of mediation was itsability to assist parties in not only resolving the particular matter ordispute that brought them to the center, but also in learning aboutless adversarial methods of dispute resolution.34 While perhaps anidealist goal, mediation use provided constructive means for indi-viduals to relate with one another. In learning innovative and pro-ductive methods of dispute resolution, the parties would maintainrelationships, whether they were neighbors, business associates, orfamilies. As the community programs developed, these goals andobjectives of mediation were emphasized and many individualswere very passionate about the potential of mediation use, even asmovement toward court use emerged.

30 This committee was instrumental in the development of many programs throughout theUnited States, and, of course, was the predecessor to the now ABA’s Section of DisputeResolution.

31 For example, in Houston, while mediation was offered at the community level, the firstprocess offered by the courts for settlement assistance in pending litigation was the ModeratedSettlement Conference, which was a neutral case evaluation process using a panel of three ex-perienced lawyers.

32 And in fact, while in the few instances mediation has been in the news or featured ontelevision programming, the accounts have been essentially inaccurate at best and in other casesharmful and erroneous.

33 It is indeed fitting, I believe, that a couple of individuals who worked in the first programsestablished in the early 1970s presented their perspectives at this conference. The elder, by a fewyears Josh Stulberg, served as the first Director of the Rochester Center for Dispute Settlement,founded in 1973, and I worked as a mediator from 1978 to 1980 in the Columbus Ohio NightProsecutor’s Program, which was founded in 1971.

34 For an in-depth review of community mediation centers, see KAREN GROVER DUFFY,JAMES W. GROSCH & PAUL V. OLCZAK, COMMUNITY MEDIATION: A HANDBOOK FOR PRACTI-

TIONERS AND RESEARCHERS (1991).



Much of the reason for such enthusiasm about mediation wasthe belief that it was a truly an “alternative” process. It was viewedvery differently from court.35 And even today, actually, thoselearning about mediation for the first time, especially those fromoutside of the legal system are quite enthusiastic about the poten-tial of the process for peace and constructive conflict resolution.The values of mediation were different from those of the adver-sarial, win-lose processes of litigation and arbitration. Manyviewed mediation as a truly “alternative” method for dispute reso-lution. Mediation offered individuals the ability to resolve mattersand maintain relationships in the process. It also provided the op-portunity for creative and innovative solutions to problems, andfocused on party participation and satisfaction. Yet use was mini-mal and primarily limited to community centers where mediatorswere volunteers, although some use was developing in family mat-ters as well.36 Use outside of community centers was rare, eventhough some of the centers were supported by those in the legalsystem, and in some instances were even housed within court orgovernment offices. Many individuals in the mediation fieldpondered how to increase the availability and use of mediation.

So as part of the work to expand mediation use, severalmediators, mediation organizations such as non-profit communitycenters, and state and local bar associations introduced mediationto the “legal system.” At that time, several lawyers and judges hadbeen involved with the community centers and small claims mat-ters,37 so movement into general civil litigation seemed, at the time,like a good idea. Others viewed this time in mediation’s develop-ment or evolution as one of “adolescence,”38 with associated grow-ing pains.39 Moreover, mediation was still trying to “find itself”and determine how to work with existing processes such as arbitra-

35 For additional review, see Timothy Hedeen, The Evolution and Evaluation of CommunityMediation: Limited Research Suggests Unlimited Progress, 22 CONF. RESOL. Q. 101 (2004).

36 Folberg and Taylor’s book on family mediation was one of the first to discuss the media-tion process in depth and was focused primarily on family cases. See JAY FOLBERG & ALLISON

TAYLOR, MEDIATION: A COMPREHENSIVE GUIDE TO RESOLVING CONFLICTS WITHOUT LITIGA-

TION (1984).37 See, e.g., Roselle L. Wisiler, The Effect of Mandatory Mediation on Resolution: Experience

of Small Claims and Common Pleas Courts, 33 WILLAMETTE L. REV. 565 (1997).38 Richard Birke & Louise Ellen Teitz, US Mediation in 2001; The Path that Brought America

to Uniform Laws and Mediation in Cyberspace, 50 AM. J. COMP. L. 181 (2002); Jeffrey Krivis,Where Court–Annexed Fails: How to Avoid a Decline in the Practice, 22 ALTERNATIVES TO HIGH

COST LITIG. 185 (2004) (noting the 1990s to be the time of adolescence).39 I first noted the growing pains in 1994. See KOVACH, supra note 9, at 190.



tion and litigation, as well as develop an existence that would standapart from the court.

Perhaps like today’s “speed dating,” mediation’s introductionto the legal system moved rather quickly in some jurisdictions to anongoing relationship, which resulted in the marriage of mediationwith the courts.40 Florida and Texas were the first two states wherecourts began to use mediation in civil litigation. As mediationmoved into the court system, many thought that mediation couldchange how litigation was conducted. For example in Texas, it wascontemplated that mediation would be helpful in decreasing theadversariness of court, known as “Rambo litigation.” Even theState Bar of Texas enacted a Lawyer’s Creed, which discussedADR use along with the need for civility in practice.41 Yet whenthis marriage took place, the paradigm shifted the other way. Itwas that mediation was changed—in terms of process, as well asthe specific goals and objectives. And these changes not only re-main today, but are even more striking. In many cases, the processof mediation as used with pending lawsuits bears little resemblanceto the mediation process that was used and valued during that earlytime.42

When courts were given the authority to order cases to media-tion,43 they did so enthusiastically. Of course, courts could makesuch referrals (and have jurisdiction) only after a lawsuit was filed.While admittedly, mandatory mediation did increase the awarenessand understanding of mediation among judges and lawyers, themediation process also lost a great deal. With the backdrop—orperhaps foreground of litigation—how would mediation, as a non-adversarial process fit? What would happen? We wondered aboutthat many years ago. We now know. I will leave it to others tofurther examine some of the difficulties (or perhaps beauty) result-

40 Jeffrey Krivis, FIRST MEDIATION CORPORATION, End of the Cold War: The Marriage ofMediation and the Court System, http://www.firstmediation.com/resources/?p=25 (last visitedMar. 5, 2015).

41 Jonathan E. Smaby & Beverly Godbey, The Texas Lawyer’s Creed and the Texas Centerfor Legal Ethics Celebrate a Quarter of a Century, 77 TEX. BAR J. 904 (2014).

42 Leonard L. Riskin & Nancy A. Welsh, Is That all There is: The Problem in Court-OrientedMediation, 18 GEO. MASON L. REV. 863 (2008).

43 Statutes were enacted in 1987 in both Florida and Texas authorizing the courts of thestates to actually mandate and order pending litigation cases, civil and family, to mediation. THE

TEXAS ADR ACT, ch. 154.001, et. seq.; TEX. CIV. PRAC. & REM. CODE; FLA R. CIV. P. 1.700(a).



ing from this marriage, as well as the offspring or the “mutantchild.”44

My observation was that the understanding of mediation wasno longer that of a process that offered such attributes as partyempowerment and creative solutions, but rather of a process thatwould settle cases.45 And too often that settlement was one thatwould or should approximate probable court outcome.46 The viewof mediation as primarily, perhaps exclusively, a settlement toolwas what was acceptable to those users. And in some, likely mostjurisdictions, when implemented, mediation resembled neutral caseevaluation more than classical definitions and descriptions of theprocess. In order to be accepted by that system, mediation had tochange and become legalistic, and while those changes have beenquestioned,47 they remain today.

This change in mediation can be attributed to the dating pro-cess. Thinking perhaps that the courts would be prince charming48

for mediation, the two entities, court and mediation, then engagedin “dating.” When involved in the dating process, often partici-pants change in an effort to make themselves as attractive as possi-ble to the other person.49 This necessitates an understanding of theother’s preferences and perspectives of attractiveness. If mediation

44 The description of the mutant child of the marriage of mediation and the legal systems wasfirst noted by Tracy Allen & Eric Galton. See Eric Galton & Tracy Allen, Don’t Torch the JointSession, 21 ABA DISP. RESOL. MAG. 25 (2014).

45 See, e.g., Jacqueline M. Nolan-Haley, Mediation: The New Arbitration, 17 HARV. NEGOT.L. REV. 61 (2012) (also discussing the legalization of mediation and submitting some empiricaldata supporting such observations).

46 This dilemma was at the center of the discussions about mediator approach, known as theevaluative-facilitative debate. See supra note 5 and accompanying text. See also Robert A. Ba-ruch Bush, Staying in Orbit or Breaking Free: The Relationship of Mediation to the Courts OverFour Decades, 84 N.D. L. REV. 705 (2008) (discussing in depth the way that the legal system has‘captured’ mediation); Nancy A Welsh, The Thinning Vision of Self–Determination inCourt–Connected Mediation: The Inevitable Price of Institutionalization?, 6 HARV. NEGOT. L.REV. 1 (2001).

47 Sharon Press, Institutionalization: Savior or Saboteur of Mediation?, 24 FLA. ST. L. REV.903 (1997). See also Bobbi McAdoo & Nancy A. Welsh, Look Before You Leap and Keep onLooking: Lessons from the Institutionalization of Court-Connected Mediation, 5 NEV. L. J. 399(2005); Judith A. Saul, The Legal and Cultural Roots of Mediation in the United States, 1 OPINIO

JURIS IN COMPARATIONE, n. 8, 2012, available at http://www.opiniojurisincomparatione.org/opinio/article/view/60/64 (2012).

48 Audio tape: Symposium: Is Mediation a Sleeping Beauty?, held by the Cardozo Journal ofConflict Resolution (Nov. 3, 2014) (on file with the Journal).

49 It is quite easy with a quick Google search to find all sorts of advice on how to look yourbest while dating.



were to become attractive to the court system, then she50 needed tochange—since the legal system itself had already demonstrated anunwillingness to transform itself.51 Thus mediation had to adoptthose characteristics of litigation that the system finds attractive.So instead of allowing her inner beauty to remain, when the “be-holder” is the legal system, lawyers, judges, and court administra-tors, changes were made in order to be attractive. In examiningwhether mediation is indeed beautiful,52 I submit that thosechanged characteristics such as legal analysis and evaluation, dis-cussion of admissibility and relevancy were likely viewed as beauti-ful to those beholders. On the other hand, those changedcharacteristics are quite disappointing and even “ugly” to those ofus that saw the beauty and the potential of party empowerment,conciliation, informality, self-determination, creativity, and confi-dentiality fade away and vanish.53

Eighteen years ago, it was observed that mediation, as an al-ternative dispute resolution process, was not really alternative, asduring the marriage much blurring of the mediation and litigationsystems occurred.54 In fact, this new process was given a newname, that of “liti-mediation.”55 Numerous scholars have com-mented on the way mediation, when combined within the courts,lost its real problem solving potential.56 It appeared clear that me-diation was unable to escape the gravitational pull of the stronger

50 Mediation generally assumes the female gender, relating also to more feminine character-istics as well as the ethic of care. See, e.g., Karen K. Klein, A Judicial Mediator’s Perspective: TheImpact of Gender on Dispute Resolution: Mediation as a Different Voice, 81 N.D. L. REV. 771(2005); Kate McCabe, A Forum for Women’s Voices: Mediation Through a Feminist Jurispruden-tial Lens, 21 N. ILL. U. L. REV. 459 (2001). Not surprisingly, litigation is often considered male.

51 Some of this resistance is more general such as the difficulty for any established system toaccept change. Moreover, in the context of the legal system, which is guided by strict rules andfounded upon precedent, change can be even more difficult.

52 See Coben, supra note 8; Stulberg, supra note 8.53 For additional perspective on the marriage of mediation and the courts, see Timothy

Hedeen & Patrick G. Coy, Community Mediation and the Court System: The Ties that Bind, 17MEDIATION Q. 351, 352 (2000).

54 John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24FLA. ST. U. L. REV. 839 (1997).

55 Id. Lande modified the term litigotiation, mentioned by Marc Galanter, as the process ofnegotiating within the context of litigation. See Marc Galanter, Worlds of Deals: Using Negotia-tion to Teach About Legal Process, 34 J. LEGAL EDUC. 268 (1984).

56 Welsh, supra note 47; Wayne D. Brazil, Continuing the Conversation About the CurrentStatus and the Future of ADR: A View from the Courts, 2000 J. DISP. RESOL. 11, 29 (2000)(noting the variety of adversarial activity in mediation); Jacqueline M. Nolan-Haley, The Mergerof Law and Mediation: Lessons from Equity Jurisprudence and Roscoe Pound, 6 CARDOZO J.CONFLICT RESOL. 57, 58 (2004).



adversarial process.57 It was even noted that mediation may need asystem of rules,58 which seems clearly antithetical to the flexibleand creative process often described. In other words, this combi-nation of processes resulted in a much more “legal-like” process.

And what mediators did in practice differed a great deal. Sotensions developed among the proponents of various approachesto mediation,59 as well as between providers, primarily the lawyermediators and those from other disciplines. Similarly, frictionarose between those urging a more consistent process, and thoseadvocating a “let a thousand flowers bloom” approach,60 allowingfor inherent flexibility.61 For example, research over twenty yearsago illustrated that mediation is not one specific, exact process, butcan mean very different things in terms of the way the process isconducted.62 In an examination of several then-prominentmediators, Kolb and others demonstrated that the work of thosemediators differed a great deal.63 Different views of the processexist, and under the umbrella of mediation a variety of activitiesand strategies are housed. While many praise that view of flexibil-ity, another perspective is that some basic consistency in practice isnecessary so participants are able to recognize a procedure as me-diation. In essence, the question is whether it is possible to assignbasic characteristics or core elements to mediation or could it bethe case that there is not one, but in fact many “sleeping beauties.”Likely many are responsible for the fate of mediation, and I leaveto others the examination of the wickedness that may have beenassociated with the various uses of the process, along with what orwho assumed the persona of the “witch” in mediation’s story.64

57 Bush, supra note 46.58 Ellen E. Deason, Procedural Rules of Complementary Systems of Litigation and Media-

tion—Worldwide, 80 NOTRE DAME L. REV. 553 (2005).59 The most common was the “evaluative-facilitative” debate. See supra note 2 and accompa-

nying text.60 One of the first proponents of this approach in mediation was Jim Boskey. Others also

followed with the idea of process pluralism. Lande, supra note 54, at 854 n. 65 (noting Bosley’scomment of letting 100 flowers bloom).

61 See, e.g., Kathy Goodman, Mediating between Mediation Models, MEDIATE.COM, http://www.mediate.com/articles/GoodmanK1.cfm (last visited Mar. 5, 2015).

62 DEBORAH M. KOLB & ASSOCIATED, WHEN TALK WORKS: PROFILES OF MEDIATORS

(1994).63 Some methods were very structured, controlled and directive, while others were more

interest—based in approach. Some of the mediators also differed in statements about the pro-cess with actual practice, and others made assessments and focused almost exclusively on moneyoutcomes. And finally even then, some practitioners within the court system blurred the media-tion process with adjudication.

64 65 Galton, supra note 8; Coben, supra note 8.



III. COMA TIME: ACCIDENTAL OR PURPOSEFULLY INDUCED

Despite these early efforts, most will agree that mediation isnow asleep,65 or rather in a coma. And certainly the vision of me-diation sleeping can vary, just as the story of Sleeping Beauty hasmany variants.66 And a look at actual sleeping has multiple per-spectives. One view of sleep is the restful and peaceful sleep, nec-essary as an important element of rejuvenation and general goodhealth.67 Living things need sleep to survive and grow, and cer-tainly very substantial research has demonstrated that numerouscognitive and health problems result from sleep deprivation.68 Soin essence, sleep is a critical element of being. Yet the level ordegree of sleep can vary, in part due to factors such as age, illnessand the like.69 While some sleep is necessary, too much sleep canbe damaging, as in the case of Sleeping Beauty, as in essence con-tinuous sleep results in non-participation in life. So too in the caseof mediation. On one hand, perhaps after all of the effort ex-pended in attempting to expand mediation use, it was time to takea break, rest and reflect. Another view, however, is that the cur-rent level and degree of sleep, which might also be considered asthe absence of activity, is troublesome.70 And in our analogy, werecall that sleeping beauty was put into a troublesome slumber, andit was impossible to wake her.

The analogy of mediation with Sleeping Beauty is quite accu-rate, including other iterations of the story. Although the morebenign story of Sleeping Beauty waiting for a handsome prince toawaken her, which does occur and all live happily ever after,71 iswhat was likely intended at the time the first analogy was made,72

similarity also exists with another version. The other “muchdarker” version of the story where sleeping princess is taken ad-

65 The majority of the speakers at the Symposium, I believe, agree with Professor De Palothat mediation is indeed sleeping. Fortunately, most of the Symposium participants were not.

66 For example, although considered a fairy tale, other versions are darker.67 Christer Hublin, et al., Insufficient Sleep—A Population–Based Study in Adults, 24 SLEEP

No. 4 (2001).68 For additional information on sleep, sleeping disorders, and many potential health conse-

quences, as well as research and treatments, see www.journalsleep.org.69 Research Planning Workshop on Sleep and Aging, 1 SLEEP 221 (1978).70 Of course, another view, for those who oppose mediation or are doubtful that it offers

individuals (and businesses) a better or more preferred sense of justice, is that the sleep or comais not troublesome but rather welcomed.

71 THE BROTHERS GRIMM, SLEEPING BEAUTY (1697).72 De Palo, supra note 4.



vantage of by a married king73 also has a similar story line to thestory of mediation. Similarly, when the litigation system encoun-tered mediation and put her to sleep, he also took advantage ofher. The stronger, adversarial process was able to quiet mediationwhen she didn’t initially fit in, and then took those attributes for itsown benefit. In other words, the adversarial system, took advan-tage of the positive “selling points” of mediation while molding herto become not what was intended.74 Litigation had lost some of itsluster and attractiveness. Complaints were frequent about the vastexpenses, in terms of both time and money, necessarily expendedin order to “go to court.” And even then, often both parties weredisappointed in the outcome, one provided by essential strangers.So as mediators and other dispute resolution professionals dis-cussed the benefits of mediation, not surprisingly courts thoughtthat they had much to gain by associating with mediation and tak-ing on what was then viewed as the beneficial or advantageous as-pects of the process. And while courts and lawyers used the termmediation and listed the enumerated benefits, they also often con-tinued to conduct the process in an adversarial manner, which frommany perspectives is contradictory to mediation. The focus wasnearly exclusively on settlement.75 This has occurred so often andto such a degree that many who have participated in hundreds ofmediations as lawyer representatives, and thus “know what media-tion is,” are shocked in a training when the process is presented ina way that is not combative, legalistic, or relies on legal analysis.76

Indeed the story is a paradox. While for a time mediation usein legal matters increased and even enjoyed robust development,usage now has plateaued and perhaps even decreased. Even inthose jurisdictions considered as leaders in mediation use, practicehas tapered off. This may be the result of process blending, as me-diation has merely become part of everyday litigation or legal rep-

73 Actually the story is that she is raped by the king, and thereafter gives birth to twins.GIAMBATTISTA BASILE, SUN, MOON, AND TALIA (1634).

74 I do realize that many others will disagree about what was intended with regard to the useof mediation, along with what the process should actually be. See, e.g., Lande, supra note 54. I,however, at this point and for the purposes of this article assume that the process attributeshighlighted during the Symposium, along with those other articles addressing the “beauty” ofmediation, are those deemed beautiful.

75 Brazil, supra note 56, at 29 (noting the variety of adversarial activity in mediation).76 Over the years, when I conduct mediation training and am in the process of discussing the

stages of the process and accompanying skill sets, I am continuously asked about the stages of“fist pounding” and the skills of “beating up each side” so they settle.



resentation,77 and as such, it doesn’t appear any different and is nolonger needed. In other cases the misuse of the process for strate-gic gain has many lawyers and parties avoiding mediation whenpossible. It appears that at this juncture, all forms of mediation aresleeping.

How mediation fell into this coma is important to consider ifshe is to awake and become a vibrant process. We must then bevigilant that she does not encounter the same fate again. Or is itpossible that she was never really completely awake, since today,after forty years of use and promotion, she remains “a grain ofsand on the adversary system beach.”78 Rather than a real thing,perhaps she was a mere vision. Another question is whether thiscollision was merely an accident or more sinister and purposeful,intended to harm the mediation process. Certainly litigation hadmuch to gain when attracting the advantages of mediation, and yetwas quite uncomfortable with the process as initially described andpracticed. Fearing loss of control, and adverse economic conse-quences,79 lawyers determined to change mediation.

A. An Accidental Collision

When individuals collide, the result is generally harmful to oneor both of those in the collision. Not surprisingly, however, thestronger party generally has a better chance to survive, and sustainfewer injuries. A simple rule of physics actually provides that mo-mentum, velocity, and mass all work together in ways to allocatediffering degrees of damage to those involved in collisions. In thecase of the larger mass, in our case, the immovable litigation sys-tem, when mediation collides, she is smashed, similar to an objectcolliding with an immovable wall. Alternatively, we can visualizemediation colliding with litigation as a small car and a large truck.In either of these examples, the smaller object, mediation, wouldsustain greater harm.80 So, too, it seems when mediation collided

77 Just as in Texas, and likely elsewhere as well, the need for specifically designated Settle-ment Weeks no longer exists. While compulsory Settlement Weeks, mandating use of negotia-tion and mediation to settle cases, were helpful years ago in educating numerous factions aboutmediation, they are no longer necessary, as one Texas judge remarked, “every week is settlementweek.”

78 Frank E. A. Sander, The Future of ADR, 2000 J. DISP. RESOL. 3 (2000).79 Id. at 6.80 I understand that this is not an accurate physics explanation, but hopefully it is sufficient

to convey the basic idea of what may have happened to mediation when it crashed into litigation.



with the litigation system, the resultant harm was much greaterthan anticipated, with no harm, and in fact a substantial benefit, tothe court system. As Professor Baruch Bush noted in his remarks,when confronted with the strong pull of the litigation system, medi-ation was unable to escape that force.81 Thus she was pulled intothe authoritative system, and remains captured by it, waiting forliberation.82

B. Purposeful to Cause Harm

Another version of the prior events might see litigation, ratherthan colliding with mediation, actually providing a method to puther to sleep. This was a purposeful and powerful drug or otherdevice used to deliberately cause the features of mediation, asknown at the time, to enter into a deep slumber so to be unavaila-ble. Discussions of interests and acknowledgment of feelings weretroublesome, so much so that those aspects of mediation were si-lenced. And many lawyers and judges also expressed fear that ifmediation truly were used as a first step, then perhaps there wouldnot be sufficient cases to continue the legal system’s reliance onprecedent.83 Thus by abandoning the innovative (and alternative)features of mediation, the legal system could nearly guarantee thatmatters would continue to be conducted in the same way they hadbeen.

Although courts in several jurisdictions, such as Florida andTexas,84 appeared to embrace mediation, it was most often with theview of the process as a tool for settlement.85 Many lawyers andjudges were uncomfortable with mediation as the process was ini-tially presented. For example, those in Texas first rejected media-tion in favor of the case evaluation process known as the

81 Bush & Folger, supra note 8.82 Id.83 Owen M. Fiss, Against Settlement, 93 YALE L. REV. 1073 (1984).84 These two jurisdictions are often viewed as the most active with regard to court-annexed

or court mandated mediation, at least early in the movement. State courts in both states werevery active in mandating nearly all types of civil cases to mediation.

85 For example, the Rand Report, an early assessment of court-annexed ADR, focused onsettlement exclusivity. See JAMES S. KAKALIK, ET AL., AN EVALUATION OF MEDIATION AND

EARLY NEUTRAL EVALUATION UNDER THE CIVIL JUSTICE REFORM ACT (1996). The RandReport was criticized by many dispute resolvers. See Richard Reuben, Perspectives on the RandReport: The Dialogue Continues, 3 DISP. RESOL. MAG 3 (1997).



Moderated Settlement Conference,86 stating that mediation was“too touchy-feely.” Even today, discussions about the “value ad-ded” elements of mediation, such as party empowerment, partyself-determination and the opportunities for forgiveness and crea-tive solutions, make many lawyers uncomfortable. As a result,those characteristics of mediation were eliminated. Most attemptsby mediators to maintain those important even critical elements ofthe process have been ignored. In fact, in many instances, the em-pathetic aspects of the process have been diminished, including theability of the parties to speak with each other, through the com-plete demise of the “joint session.”87 As a result, mediation can nolonger be recognized, as she languishes in this drug-induced coma.

C. “Medically Induced” Coma for Process Preservation

Another theory may be that mediators and others made a de-liberate determination to move mediation to a coma to preserveprocess features. Observing the potential continued harm to theprocess if mediation continued to be used as a litigation tool, prac-titioners, program directors and others made deliberate decisionsto no longer advance the process.88 Rather than allowing processchanges so that the process was no longer identified, mediation usewas diminished. In this scenario case, the courts continue to use aprocess that is called mediation to settle cases, while the actual pro-cess remains unavailable. The time to bring her out of the comamay occur if, and when, other opportunities arise where “the real”mediation can be used.

Another issue is that various levels of comas exist, rangingfrom mild to very deep. In some jurisdictions, it may appear to bea rather mild coma, with mediation periodically showing some vital

86 The Texas ADR Act provides that courts may mandate pending litigation to five separateADR processes: Arbitration, Mediation, Moderated Settlement Conference, the Summary JuryTrial and the Mini-Trial. THE TEXAS ADR ACT, ch. 154.001, et. seq., TEX. CIV. PRAC. & REM.CODE. Although the Moderated Settlement Conference was the first process mandated, prima-rily in Harris County Courts, in a few years, it gave way to mediation.

87 While in nearly all types of mediation, after preparatory matters, the process began withan in-person meeting or joint session with the mediator, the parties, and their respective lawyers.Over time, in several jurisdictions, however, the lawyers have requested, and many mediatorshave agreed to suspend this joint meeting. See Galton & Allen, supra note 45, at 25; Lynne S.Bassis, Face-to-face Sessions Fade Away: Why is Mediation’s Joint Session Disappearing?, 21ABA DISP. RESOL. MAG. 30 (2014).

88 Of course at this time I have not concrete evidence of this factor, so it remains a meretheory.



signs. On the other hand, in others it may be that process attrib-utes, and even the process itself, have all but disappeared, resultingin a very deep coma. An additional factor for consideration is thedegree of harm done while in the coma. In some instances, individ-uals awake and most, if not all, functions are intact. In other in-stances, the person is impaired, physically and mentally, to variousdegrees. So too with mediation.89 If permitted to remain asleeptoo long, then the vital signs or functions of the process may belost.

VI. UNDERSTANDING BEAUTY: EXAMINATION OF PRIMARY

PROCESS FEATURES FOR PRESERVATION

When the many books and articles acclaim the growth inawareness and use of mediation, it is often without reference tojust what the process used is. If, as we have now asserted, the“real” mediation is sleeping, then what is her future? While otherswill discuss awakening her, it is also important to be certain thatthe process that awakes is a truly beautiful one. And since theidentity of the beholder will impact the determination of beauty,those two factors merit consideration. In looking at some of thecore features of mediation, it is also important to allow some roomfor variation and flexibility. It may be possible to awaken the pro-cess, with most aspects in tact. Alternatively, it could be that withsuch inactivity only a few qualities remain, and it will be necessaryto choose those elements likely to be attractive to the beholders.

A. Overview of Mediation’s Core Features

Understanding that beauty is certainly in the eye of the be-holder, yet as mentioned in the following section from my vantagepoint, the real beholders have yet to be introduced to mediation.Consequently we are left with those familiar with the process, andas such, I examine in brief the core values from such a perspective.It is, I believe one that is shared by a number of the Symposiumparticipants.

89 I leave it to those examining the specific details about the awakening to discuss the possi-ble resulting harm from the coma.



At its very foundation, mediation is the facilitation of a negoti-ation where the parties themselves reach an agreement. Thus partyself-determination is an essential part of mediation,90 and is in-cluded in most codes of ethics for mediators, including the nationalcode.91 While most experts will agree in principle with the premisethat self-determination is a core characteristic of mediation, thetopic becomes more complicated when delving into what thephrase really means. At the very basic level, party self-determina-tion means that the party, the actual client, whether that is an indi-vidual, company or corporation, and not the lawyer representative,makes the decisions about both procedure and outcome in media-tion.92 Ideally, this should also include the decision if, and when, tomediate.93 In addition, other components of self-determinationmay need examination, including selection of process, level andtypes of participation in the process, and outcome decisions. In amodel of absolute self-determination, the parties should be able tomake decisions about each of these elements of the process. Ac-knowledging the interrelationship, as explained elsewhere,94 be-tween the need for information upon which to base decisions andthe decision making, the ideal becomes somewhat more challeng-ing.95 Within the context of self-determination, the parties haveseveral decisions to make and these decisions must be informed.In other words, the standard is essentially one of informed consentthroughout participation in mediation. Yet what is not clear ishow, if at all, the parties avail themselves of the information.96 So

90 Numerous articles include this premise as a foundation. See e.g., Nolan-Haley, supra note1; Welsh, supra note 47. So too with the speakers at this Symposium. De Palo & Canessa, supranote 8; Erez-Navot, supra note 8; Bush & Folger, supra note 8. Cf. Coben, supra note 8;Stulberg, supra note 8.

91 Specifically, it is noted that the very first standard in the Model Code is the Principle ofSelf-Determination. See Amended Standards, AMERICAN BAR ASSOCIATION (2007), available athttp://www.americanbar.org/content/dam/aba/migrated/dispute/documents/model_standards_conduct_april2007.authcheckdam.pdf.

92 De Palo & Canessa, supra note 8; Erez-Navot, supra note 8; Bush & Folger, supra note 8.93 Jacqueline Nolan-Haley, Judicial Review of Mediated Settlement Agreements: Improving

Mediation with Consent, 5 PENN. ST. Y.B. ARB. & MEDIATION 152 (2013) (discussing that thedecision to participate in mediation should be the choice of the parties). However, others claimthat since mediation is sleeping, she is in need of mandatory use provisions or at least a presump-tion of mediation use of with opt out provisions. See De Palo & Canessa, supra note 8.

94 Jacqueline Nolan-Haley, Informed Consent in Mediation: A Guiding Principle for TrulyEducated Decisionmaking, 74 NOTRE DAME L. REV. 775 (1999); Michael T. Colatrella, InformedConsent in Mediation: Promoting Pro Se Parties Informed Settlement Choice While HonoringMediator’s Ethical Duties, 15 CARDOZO J. CONFLICT RESOL. 95 (2014).

95 A review of several of the difficulties in what is termed principals’ informed decision-making is set forth in Lande, supra note 54, 846–79.

96 Nolan-Haley, supra note 94.



in this context, who may provide the parties the necessary informa-tion for informed decision-making must be identified. Severalsources of information exist, including lawyers, the Internet, othermediation participants, and the mediators. Caution has beenvoiced, however with regard to mediators providing information,as the line between information and advice can be quite blurry.97

The problem with self-determination or informed consent it that ishas not been emphasized or even discussed in detail in the contextof any dispute resolution processes. I have urged, as have others,that in all legal representation lawyers provide their clients the op-portunity to make informed decisions;98 in many, perhaps mostcases, however the parties, the clients look to the lawyers for gui-dance. No doubt parties will likely also look to mediators for gui-dance. As issues remain about just how the needed information isprovided to the parties,99 additional analysis of the issues surround-ing party self-determination is warranted.

Neutrality is another core feature of the process that is imper-ative, in most views.100 In guaranteeing neutrality, there is an as-surance that the mediator is not biased in terms of the dispute orany potential outcome.101 While included as a core element in thestandards of conduct for mediators, others, in discussions about thevarious approaches to mediation, note that it may not be as criticalas others claim.

Another fundamental element of mediation includes a provi-sion of confidentiality. Confidentiality is often viewed on two basiclevels: one, as to any and all statements or communications madein mediation, and covers all of the participants; and the secondlevel is that confidentiality as between the mediator and each partywhile in separate, private sessions or caucuses.102 And while the

97 Colatrella, supra note 94.98 Kimberlee K. Kovach, The Duty to Disclose Litigation Risks and Opportunities for Settle-

ment: The Essence of Informed Decision-Making, 33 LAVERNE L. REV. 71 (2011).99 Colatrella, supra note 94.

100 For a different view, see BERNARD MAYER, BEYOND NEUTRALITY (2004).101 See for a discussion of neutrality issues, see Bernie Mayer, Joseph B. Stulberg & Lawrence

Susskind, Core Values of Dispute Resolution: Is Neutrality Necessary? 95 MARQ. L. REV. 805(2012); Joseph B. Stulberg, Must A Mediator Be Neutral? You’d Better Believe It !, 95 MARQ. L.REV. 829 (2012).

102 Much has been written on confidentiality and it is not as simple as once thought. Evenwith the Uniform Mediation Act, which has as its basis provisions of confidentiality, there ismuch room for interpretation. UNIFORM MEDIATION ACT (2003). Ellen E. Deason, The Questfor Uniformity in Mediation Confidentiality: Foolish Consistency or Crucial Predictability?, 85MARQ. L. REV. 79 (2001). In many schemes the confidential nature of the private sessions isbased upon an agreement between the participants and the mediator.



general consensus among practicing mediators is that confidential-ity is a nearly sacrosanct part of the mediation process, instancesarise demonstrating a need for information from the mediation.This exists in two primary areas: one in terms of information toenforce, or alternatively set aside the mediation settlement agree-ment;103 and the other in situations where there is an overarchingpublic interest and need for the information. In the end, perhapsthis feature could also be included under the umbrella of party self-determination, with pre-mediation agreements between the media-tor and the parties made in advance determining the extent andlimits of confidentiality.

Most of the ethical codes or practice standards provide that itis essential that mediators provide a quality process. Yet there isoften difficulty and even potential contradictions in terms of defin-ing quality of process. For if the parties have the ability, in essencethe right, to determine what the process will be for them, how cansomeone else, even the mediator make decisions about quality?While when these standards were drafted and approved, the think-ing was certainly that mediators, those of us familiar with media-tion, would know what quality means. And in fact, the standardsinclude such factors as timeliness, attentiveness, honesty and can-dor. Provisions also caution against mixing neutral roles.104 Butperhaps it is time for additional revision or additional explanationabout the actual party views of what quality would be. And ofcourse the context of the dispute could have some impact as well.Yet if the parties are not really knowledgeable about the process,then it is unclear how they can make these decisions. Which ofcourse leads us to the identification of beholders.

B. Beholder(s) of Beauty

When discussing the early implementation and prior use ofmediation, several actors in the process were identified as having arole in mediation’s development, and thereafter slumber. Each,quite likely, has a different view of the process. The most commonparticipants include the parties themselves, lawyer representatives,courts, including judges and court administrators, mediators, schol-ars, trainers and program administrators. Likely an entire article

103 Ellen E. Deason, Enforcing Mediated Settlement Agreements: Contract Law Collides withConfidentiality, 35 U.C. DAVIS L. REV. 33 (2001).

104 Standards, supra note 91.



could be written on the “beauty of mediation” from each of thesequite diverse viewpoints. Understanding that each plays a role inhow mediation is conducted, as well as having shaped the historyand perhaps contributed to, and influenced the coma, I now submitthat we should focus almost solely on the parties themselves, as thebeholders of beauty. Yet a dilemma arises since most of the gen-eral public remains unaware of mediation as a separate and distinctprocess for dispute resolution.

In going back to the real parties in interest, very little researchhas been done regarding party understanding of the process. Infact, some research has demonstrated that mediation is viewed aspart of the legal system,105 which based upon what we know aboutthe use and the evolution is not surprising. Yet since the partiesthemselves ‘own’ the matter, they should be making the decisions.And most of those studies that examine the parties’ perspectives ofmediation, are done from a legal perspective.106 For the most part,it remains unclear about how parties are actually informed aboutwhat mediation is.107 The view or perspective of mediation may beused and understand the real process potential will depend uponwhat the parties consider valuable provisions and elements in howthe process is conducted.

So the dilemma then is to determinate a method to provideneeded information so that the parties can understand the processand have input about the process and its values. One option is todevise methods to inform individuals and businesses about the pro-cess, and then gather data from the participants about what charac-teristics are most valued. This would most likely necessitateconsiderations outside of “legalized disputes”108 so that the infor-mation about mediation would not be filtered by the legal system.Until we reach that point, then beauty will remain an elusiveconcept.

105 Linda Golden & Kimberlee K Kovach, Public Perception of Mediation: Truth or Conse-quences? (2004) (unpublished manuscript) (on file with author).

106 Roselle L. Wissler, Representation in Mediation: What We Know from Empirical Research,37 FORDHAM URB. L.J. 419 (2009) (analyzing the impact of lawyer representation has in media-tion). See also Donna Shestowsky, The Psychology of Procedural Preference: How LitigantsEvaluate Legal Procedures Ex Ante, 99 IOWA L. REV. 637 (2014).

107 See American Bar Association Section of Dispute Resolution Task Force on ImprovingMediation Quality Final Report (Apr. 2006–Feb. 2008) (ABA Study which documented the lackof information and preparation of the parties by their counsel in commercial cases).

108 This is a term I have often used to describe what happens when parties who are in adispute or conflict retain counsel, and the dispute becomes legalized, meaning the focus issquarely and nearly exclusively on the legal causes of action.



C. Prognosis for the Future

What will happen to Sleeping Beauty? Will mediation remainhidden in a coma, or find a way to become conscious? If mediationis indeed awakened, then it is imperative that the core features,those attributes that identify a dispute resolution process as media-tion, be maintained. Of course others may differ when they ad-dress what the “new” mediation may look like, but as with mostcomas, variation exists when the individual awakes and emergesfrom the coma. At this point, I doubt that mediation will escapeunharmed. Yet it certainly is possible that the extent of the dam-age can be lessened, and mediation may be rehabilitated. Whileothers explore additional ideas such as mandatory or opt outschemes to awaken mediation, it is clear that education and aware-ness are also necessary. Even a global pound conference109 hasbeen suggested as an attempt to reboot mediation. Indeed, it maytake all of these (and more) treatments to revive mediation.

V. EPILOGUE

Once upon a time in a land far, far away, the people spent agreat deal of time arguing with one another. For these inhabitantsof Bellum, each day was filled with fights, arguments and disagree-ments. Their disputes were many and varied, and included nearlyany subject matter. And any and all relationships they engaged inwith one another were permeated with conflict. And for those whocould afford to do so, they sometimes hired others to argue forthem. Much time, money and emotions were expended each andevery day on argumentation. Sometimes tribunals were in placeand made decisions, and at other times the parties tried to reach aresolution on their own. Very infrequently were any of those in-volved in the disputing process happy or satisfied with the finaloutcome, in those few instances when such could be attained.

One day, one of the town elders, Concilia, called a town meet-ing. She then informed the inhabitants about her visit to a neigh-

109 See Michael Leathes & Deborah Masucci, Rime for Another Big Bang in Alternative Dis-pute Resolution – The World Needs a Global Pound Conference, MEDIATE.COM (Jan. 2014) http://www.mediate.com/articles/poundconference.cfm (discussing the proposal of a Global PoundConference, which was, at least in part a response to De Palo’s concern); De Palo, supra note 3.See also The 2015-16 Global Pound Conference Series, INTERNATIONAL MEDIATION INSTITUTE,

https://imimediation.org/global-pound-conference (last visited Apr. 7, 2015) (current plan).



boring village, Pax, where all of the residents were engaged in aconstructive, empowering dispute resolution process. She in-formed them of the name given the process, mediation. Several ofthe inhabitants were curious about this, so Concilia arranged forthe residents of Bellum to visit Pax, and likewise some of the Pax-ites went to Bellum. Several months later, when all of the residentsof Bellum were informed and knowledgeable about this mediation,another town meeting was called. It was time for the residents todecide what to do. . . .

THE MEDIATION COMA: PURPOSEFUL OR PROBLEMATIC

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