Mandatory Mediation: An Oxymoron? Examining the Feasibility of Implementing a Court-Mandated Mediation Program

Authors

Dorcas Quek

Abstract

The introduction of the "multi-door courthouse" concept at the Pound Conference is said to have ushered in a modern era of dispute resolution within the United States. This watershed event in the history of Alternative Dispute Resolution ("ADR") spawned greater involvement by the courts in ADR. Court-annexed ADR programs were set up throughout the U.S. and legislation was enacted to encourage the use of ADR. In 1983, Rule 16 of the Federal Rules of Civil Procedure was amended to exhort courts to consider the "possibility of settlement" or "the use of extrajudicial procedures to resolve the dispute" at pre-trial conferences. The Civil Justice Reform Act of 1990 also required every federal district court to consider court-sponsored ADR. In addition, the ADR Act of 1998 gave district courts the mandate to establish ADR programs and listed mediation as an appropriate ADR process. The courts' increasing association with mediation programs begs the question of whether the courts should compel disputing parties to attempt mediation, especially in jurisdictions where mediation is not widely utilized. This paper will examine the current debate in the United States concerning court-mandated mediation and briefly evaluate other jurisdictions' approaches to this issue, as well as make recommendations concerning the most appropriate way to administer a mandatory mediation program.

Disciplines

Comparative and Foreign Law | Dispute Resolution and Arbitration | Law | Legal Ethics and Professional Responsibility

Recommended Citation

Dorcas Quek, Mandatory Mediation: An Oxymoron? Examining the Feasibility of Implementing a Court-Mandated Mediation Program, 11 Cardozo J. Conflict Resol. 479 (2010).
Available at: https://larc.cardozo.yu.edu/cjcr/vol11/iss2/7