You Can Lead a Horse to Water: The Pros and Cons of Mandatory Mediation

By Scott S. Markus, Esq. on June 18, 2012

“Debating the Effectiveness of Forced Mediation” (Los Angeles Daily Journal, June 8) generalizes and oversimplifies the issue. Ordering parties to participate in mediation may be appropriate in some cases, but certainly not all cases.

Unfortunately, court-ordered mediation is more likely to be ineffective when the parties fail to have decision-makers present and invested in the process. Instead, recalcitrant parties and their counsel go through the motions and the mediation really is a waste of time and money.

However, with spiraling budget cuts, why shouldn’t a judge require mediation if there is any meaningful prospect of settlement and the benefit outweighs the burden. Faced with presiding over a several month trial, should we really question the wisdom of a judge who orders the parties to spend one day trying to resolve a matter? Especially if the CEO’s – Larry Ellison (Oracle) and Larry Page (Google) – are required to attend. Under such circumstances, the potential savings of time and money are enormous.

On the other hand, the article focused on a case that had already reached the other end of the litigation spectrum. The case was before the 9th Circuit and ripe for adjudication. Judge Alex Kozinski’s insistence the court needed to rule made good sense.

Experienced mediators know the party more willing to try the case (and less willing to settle it) usually gets the better deal. Hence, false bravado is a common tactic in settlement negotiations. Having the court require mediation allows counsel to maintain the façade of indifference to settlement. There have always been and will always be cases that settle in mediation, but never would have gotten there but for the encouragement if not insistence of the court.

Letter To The Editor originally published in the Los Angeles Daily Journal, June 15, 2012.