Mediation exceptionality

Fordham Law Review

Volumn 78, Issue 3, 2009, Pages 1247-1264

  Nolan Haley, Jacqueline ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 75649096044     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (212)

1. E.g., negotiation, consensus-building, conciliation, etc.
2. I distinguish exceptionality from exceptionalism in the sense that the latter involves a belief in some kind of superiority, not just difference between alternative approaches. See SEYMOUR MARTIN LIPSET, AMERICAN EXCEPTIONALISM: A DOUBLE-EDGED SWORD 18 (1996) (discussing Alexis de Tocqueville's description of the United States as exceptional). De Tocqueville was struck by American characteristics such as individualism, egalitarianism, and leanings toward litigation as a method of dispute resolution.
3. Oscar G. Chase, American "Exceptionalis". and Comparative Procedure, 50 AM. J. COMP. L. 277, 280 (2002);
4. see also Amalia D. Kessler, Deciding Against Conciliation: The Nineteenth-Century Rejection of a European Transplant and the Rise of a Distinctively American Ideal of Adversarial Adjudication (Stanford Pub. Law & Legal Theory, Working Paper No. 1229249, 2009), available at http://ssm.com/abstract=1229249.
5. MODEL STANDARDS OF CONDUCT FOR MEDIATORS, Standard I (2005). While mediation is theoretically a voluntary and consensual process, I thank my colleague Nancy Welsh for reminding me that in reality, mediation is sold as a cheap and quick process.
6. The Alternative Dispute Resolution Act of 1998 authorized federal courts to compel parties to participate in certain Alternative Dispute Resolution (ADR) processes, including mediation. 28 U. S. C. § 652 (a) (2006). On the state level, compulsory mediation takes place in different contexts under various statutory schemes.
7. See SARAH RUDOLPH COLE, NANCY HARDIN ROGERS & CRAIG A. MCEWEN, MEDIATION: LAW, POLICY & PRACTICE § 7:2 (2008). As early as 1997, the American Bar Association adopted a resolution that supported court mediation programs.
8. See SECTION OF DISPUTE RESOLUTION, AM. BAR ASS'N, RECOMMENDATION & REPORT TO THE HOUSE OF DELEGATES 227 (1997);
9. see also G. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648 (7th Cir. 1989) (upholding mandatory judicial settlement conference);
10. Michael L. Moffitt, Customized Litigation: The Case for Making Civil Procedure Negotiable, 75 GEO. WASH. L. REV. 461 (2007) (proposing that negotiation should be required before permitting the filing of a complaint).
11. For this reason, some observers suggest that England is "almost" a compulsory mediation jurisdiction. See Antoine Masson & Fiona Breen, Keeping the Essence of Mediation, 1 WORLD ARB. & MEDIATION REV. 371, 372 (2007).
12. As observers of the U. S. ADR landscape are aware, a similar problem has occurred with the arbitration process. Arbitration clauses in employment, consumer, and securities contracts have generated wide public debate as well as proposals for federal legislation to insure fairness in arbitration. See, e.g., Arbitration Fairness Act of 2009, H. R. 1020, 111th Cong. (2009) (pending).
13. See discussion of Halsey v. Milton Keynes General NHS Trust, infra notes 91-108 and accompanying text.
14. In my view, these are welcome correctives, and I endorse such proposals. See infra notes 65-66 and accompanying text. Some states have already modified traditional contract laws relating to the enforcement of mediated agreements in order to enhance the quality of the mediation.
15. See, e.g., CAL. INS. CODE § 100089.82 (c) (West 2006);
16. FLA. STAT. ANN. § 627.7015 (6) (West 2005);
17. MINN. STAT. § 572.35 (2) (1998);
18. see also COLE, ROGERS & MCEWEN, supra note 4, § 4:13. A variation of mediation exceptionality includes attempts by courts to encourage settlements by developing disincentives to trial. This phenomenon is described by Cole, Rogers, and McEwen: The development of disincentives reflects an approach to legal policy that departs from the focus of other procedural reforms of the century-rather than trying to decrease delay and expense and increase the impartiality of the trier of fact, these provisions do just the opposite. Disincentives are an attempt to improve court efficiency by lowering the numbers of parties who can afford to or dare to use the trial apparatus.
19. Id. §7:1.
20. James Coben & Peter N. Thompson, Disputing Irony: A Systematic Look at Litigation About Mediation, 11 HARV. NEGOT. L. REV. 43, 73-89 (2006). In this study, enforcement issues were raised in 568 opinions, representing forty-six percent of the study.
21. Id.
22. See infra Part IV.
23. Owen M. Fiss, Against Settlement, 93 YALE L. J. 1073 (1984).
24. Id. at 1085-86. For an insightful, alternative reading of Fiss
25. see Amy J. Cohen, Revisiting Against Settlement: Some Reflections on Dispute Resolution and Public Values, 78 FORDHAM L. REV. 1143 (2009).
26. Fiss, supra note 11, at 1078-82. In addition to the lack of consent, Fiss was also concerned with the disparity of power between parties of unequal bargaining power, the quality of justice, and the loss of opportunity for the courts to make structural changes.
27. Id. at 1076-78.
28. Fiss describes parties who "are ensnared in contractual relationships that impair their autonomy" and gives as an example lawyers and insurance companies whose settlement choices might not be in the best interests of their clients. Fiss, supra note 11, at 1078.
29. Id. at 1075, 1078-82. Certainly, Fiss was not alone in his critique. See, e.g., Edward Brunet, Questioning the Quality of Alternate Dispute Resolution, 62 TUL. L. REV. 1 (1987);
30. Harry T. Edwards, Alternative Dispute Resolution: Panacea or Anathema?, 99 HARV. L. REV. 668 (1986);
31. Marc Galanter & Mia Cahill, "Most Cases Settle": Judicial Promotion and Regulation of Settlements, 46 STAN. L. REV. 1339 (1994);
32. Deborah R. Hensler, Suppose It's Not True: Challenging Mediation Ideology, 2002 J. DISP. RESOL. 81;
33. Judith Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. CHI. L. REV. 494 (1986).
34. A substantial amount of literature has responded to this culture change with mixed reviews. Compare Wayne D. Brazil, Court ADR 25 Years After Pound: Have We Found a Better Way?, 18 OHIO ST. J. ON DISP. RESOL. 93 (2002)
35. with Bobbi McAdoo & Nancy A. Welsh, Look Before You Leap and Keep on Looking: Lessons from the Institutionalization of Court-Connected Mediation, 5 NEV. L. J. 399 (2005) (questioning whether ADR has fulfilled the justice goals of the Pound Conference).
36. Jacqueline M. Nolan-Haley, Court Mediation and the Search for Justice Through Law, 74 WASH. U. L. Q. 47 (1996).
37. See Lisa B. Bingham, Why Suppose? Let's Find Out: A Public Policy Research Program on Dispute Resolution, 2002 J. DISP. RESOL. 101 (emphasizing self-determination as a critical design element for dispute resolution systems).
38. See Nancy A. Welsh, The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization?, 6 HARV. NEGOT. L. REV. 1 (2001);
39. see infra Part II.
40. Jacqueline M. Nolan-Haley, The Merger of Law and Mediation: Lessons from Equity Jurisprudence and Roscoe Pound, 6 CARDOZO J. CONFLICT RESOL. 57 (2004).
41. See generally Thomas O. Main, ADR: The New Equity, 74 U. CIN. L. REV. 329 (2005).
42. See Nolan-Haley, supra note 17, at 85-87.
43. See NADJA ALEXANDER, GLOBAL TRENDS IN MEDIATION 1-36 (2d ed. 2006).
44. Main, supra note 21, passim.
45. Nolan-Haley, supra note 20, at 59, 64-71;
46. see Nancy A. Welsh, Remembering the Role of Justice in Resolution: Insights from Procedural and Social Justice Theories, 54 J. LEGAL EDUC. 49 (2004);
47. see also Jonathan M. Hyman & Lela P. Love, If Portia Were a Mediator: An Inquiry into Justice in Mediation, 9 CLINICAL L. REV. 157 (2002).
48. See generally Symposium, Justice in Mediation, 5 CARDOZO J. CONFLICT RESOL. 59 (2004).
49. See generally DERYCK BEYLEVELD & ROGER BROWNSWORD, CONSENT IN THE LAW (2007).
50. Owen M. Fiss, The Social and Political Foundations of Adjudication, 6 LAW & HUM. BEHAV. 121, 128 (1982).
51. For a discussion of why both elements are necessary to achieve informed consent in mediation, see Jacqueline M. Nolan-Haley, Informed Consent in Mediation: A Guiding Principle for Truly Educated Decisionmaking, 74 NOTRE DAME L. REV. 775 (1999).
52. MODEL STANDARDS OF CONDUCT FOR MEDIATORS, Standard I (2005).
53. Nolan-Haley, supra note 29, at 776.
54. Id. at 787-92.
55. See Donna Shestowsky, Disputants' Preferences for Court-Connected Dispute Resolution Procedures: Why We Should Care and Why We Know So Little, 23 OHIO ST. J. ON DISP. RESOL. 549, 550 (2008) (arguing that disputants' "ability to influence how their disputes are resolved is often co-opted by the courts to which they turn for assistance"). In the international arena
56. see Cesare P. R. Romano, The Shift from the Consensual to the Compulsory Paradigm in International Adjudication: Elements for a Theory of Consent, 39 N. Y. U. J. INT'L L. & POL 791 (2007).
57. See ALEXANDER, supra note 23;
58. ANNIE DE ROO & ROB JAGTENBERG, THE PRACTICE OF MEDIATION IN COUNTRIES NEIGHBORING THE NETHERLANDS: A COMPARATIVE STUDY CONDUCTED ON BEHALF OF THE DUTCH MINISTRY OF JUSTICE (2003) [hereinafter DUTCH REPORT];
59. Bert Niemeijer & Machteld Pel, Court-Based Mediation in the Netherlands: Research, Evaluation and Future Expectations, 110 PENN ST. L. REV. 345 (2005).
60. See BERNARD S. MAYER, BEYOND NEUTRALITY: CONFRONTING THE CRISIS IN CONFLICT RESOLUTION 85 (2004) (listing as four characteristics of mediation: (1) impartiality, (2) process orientation, (3) problem-solving, and (4) client-focused).
61. Hensler, supra note 15, at 84.
62. Michael D. Young, Federal Judge Gone Wild? Seeking Rescission, Producer Francis Claims His Mediated Settlement Was Coerced by Jail Time, 26 ALTERNATIVES TO THE HIGH COST OF LITIG. 170 (2008).
63. See, e.g., Timothy Hedeen, Coercion and Self-Determination in Court-Connected Mediation: All Mediations Are Voluntary, But Some Are More Voluntary Than Others, 26 JUST. SYS. J. 273 (2005) (analyzing coercion in mediation);
64. Peter N. Thompson, Enforcing Rights Generated in Court-Connected Mediation-Tension Between the Aspirations of a Private Facilitative Process and the Reality of Public Adversarial Justice, 19 OHIO ST. J. ON DISP. RESOL. 509, 527-35 (2004) (analyzing duress and undue influence in mediation).
65. Jacqueline Nolan-Haley, Consent in Mediation, DISP. RESOL. MAG., Winter 2008, at 4-5 (American Bar Association Dispute Resolution Section).
66. See Nolan-Haley, supra note 29, passim.
67. Considering the number of mediator approaches identified in the literature and the Model Standards requirement that parties make free choices with respect to process and outcome, Professor Frank Sander has suggested that mediators should disclose their styles.
68. Frank E. A. Sander, Achieving Meaningful Threshold Consent to Mediator Style (s), DISP. RESOL. MAG., Winter 2008, at 9.
69. See generally Leonard L. Riskin, Decisionmaking in Mediation: The New Old Grid and the New New Grid System, 79 NOTRE DAME L. REV. 1 (2003).
70. See Jeffrey H. Goldfien & Jennifer K. Robbennolt, What If the Lawyers Have Their Way? An Empirical Assessment of Conflict Strategies and Attitudes Toward Mediation Styles, 22 OHIO ST. J. ON DISP. RESOL. 277 (2007).
71. Id. at 282-87, 309-18. Welsh and Riskin found that in court-connected mediation of "ordinary" cases, lawyers tend to prefer evaluation. In the mediation of larger commercial cases with sophisticated parties on both sides, clients and their lawyers tend to prefer mediators who can accomplish many tasks, including getting at underlying interests, facilitating, evaluating, etc.
72. Leonard L. Riskin & Nancy A. Welsh, Is That All There Is?: "The Problem" in Court-Oriented Mediation, 15 GEO. MASON L. REV. 863, 924-25 (2008);
73. see also Dwight Golann, The Changing Role of Evaluation in Commercial ADR, DISP. RESOL. MAG., Fall 2007, at 16, 18-19 (contrasting private commercial mediation and courtconnected mediation).
74. Riskin & Welsh, supra note 44, passim.
75. Id. at 904-26 (offering three approaches that courts and private providers can use to assist parties in developing the most appropriate problem definitions and processes).
76. MODEL STANDARDS OF CONDUCT FOR MEDIATORS, Standard I (2005).
77. Id.
78. The methods of case referral and program design differ, but I include within the definition of mandatory regimes all types of pressured entry into mediation.
79. There is no uniformity with respect to methods of case referral and program design in U. S. mediation programs. I include within the concept of mandatory mediation those situations where there is strong judicial encouragement to mediate.
80. See COLE, ROGERS & MCEWEN, supra note 4, § 7:6. The good faith statutes have resulted in a body of case law dealing with failures to negotiate in good faith. Courts generally uphold party self-determination and refuse to find that failure to make an offer in mediation amounts to a violation of the obligation to participate in good faith.
81. See John Lande, Using Dispute System Design Methods To Promote Good-Faith Participation in Court-Connected Mediation Programs, 50 UCLA L. REV. 69, 78-86 (2002).
82. See COLE, ROGERS & MCEWEN, supra note 4, § 7.
83. For a debate on the merits of mandatory mediation, see Richard C Reuben, Tort Reform Renews Debate over Mandatory Mediation, DISP. RESOL. MAG., Winter 2007, at 13
84. and Frank E. A. Sander, Another View of Mandatory Mediation, DISP. RESOL. MAG., Winter 2007, at 16.
85. For a discussion of some of these problems, see generally Reuben, supra note 52.
86. This distinction, which was originally articulated in the first edition of Stephen B. Goldberg et al.'s Dispute Resolution, is criticized by Sally Merry, who argues that "[i]f parties are aware that a more coercive process will ensue if mediation fails, the dynamics of the mediation will differ sharply from 'pure mediation,' because the expectation of an imposed settlement will inevitably alter the meaning of the event for all the actors." Sally Engle Merry, Disputing Without Culture, 100 HARV. L. REV. 2057, 2066 (1987) (reviewing STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (1985)).
87. The United States is certainly not alone with its mandatory mediation schemes. Australian courts have long upheld their right to require parties to mediate despite the absence of their consent, but their justification is somewhat more transparent. Hooper Bailie Associated Ltd. v. Natcon Group Pty Ltd. (1992) 28 N. S. W. L. R. 194, 206 ("What is enforced is not co-operation and consent but participation in a process from which cooperation and consent might come."). The Australian studies of mandatory mediation show that settlement rates and reports of satisfaction are similar to voluntary mediation.
88. See KATHY MACK, NAT'L ADR ADVISORY COUNCIL & AUSTRALIAN INST. OF JUDICIAL ADMIN., COURT REFERRAL TO ADR: CRITERIA AND RESEARCH (2003).
89. Craig A. McEwen & Thomas W. Mitborn, Explaining a Paradox of Mediation, 9 NEGOTIATION J. 23 (1993).
90. See Roselle L. Wissler, Court-Connected Mediation in General Civil Cases: What We Know from Empirical Research, 17 OHIO ST. J. ON DISP. RESOL. 641, 690 (2002).
91. See, e.g., COLE, ROGERS & MCEWEN, supra note 4, § 4.13;
92. Coben & Thompson, supra note 9.
93. See Hedeen, supra note 38 (analyzing coercion in mediation);
94. Thompson, supra note 38, 527-35 (analyzing duress and undue influence in mediation).
95. See Coben & Thompson, supra note 9.
96. James R. Coben & Peter N. Thompson, Mediation Litigation Trends: 1999-2007, 1 WORLD ARB. & MEDIATION REV. 395 (2007). Enforceability cases continued in 2006.
97. Id.
98. See COLE, ROGERS & MCEWEN, supra note 4, § 4:13.
99. It is difficult to determine what percentage of enforcement cases result from courtconnected as opposed to voluntary mediation. The reported enforcement cases do not always indicate whether or not they arose in a court-connected setting.
100. COLE, ROGERS & MCEWEN, supra note 4, § 4:13;
101. Coben & Thompson, supra note 9, at 73-74;
102. Andrew N. Weisberg, Comment, The Secret to Success: An Examination of New York State Mediation Related Litigation, 34 FORDHAM URB. L. J. 1549, 1552-59 (2007).
103. See Washington v. Noah, 9 P.3d 858 (Wash. Ct. App. 2000) (holding that the mediation agreement should be upheld even if it restricts a party's interest in freedom of expression).
104. Coben & Thompson, supra note 9, at 49. In this study, sixty-one percent of the agreements were enforced, seventeen percent were not enforced, eleven percent were remanded for additional proceedings, eight percent had no decision, and three percent were modified. COLE, ROGERS & MCEWEN, supra note 4, § 4:13.
105. Coben & Thompson, supra note 9, at 135-36;
106. Welsh, supra note 19, at 87;
107. see also James J. Alfini & Catherine G. McCabe, Mediating in the Shadow of the Courts: A Survey of the Emerging Case Law, 54 ARK. L. REV. 171, 206 (2001) (reviewing enforcement cases and urging that courts enforce mediated settlements "within a framework that recognizes mediation's unique character and attributes");
108. Steven Weller, Court Enforcement of Mediated Agreements: Should Contract Law Be Applied?, JUDGES' J., Winter 1992, at 13, 39 (suggesting that because a mediator's power distinguishes mediation from arm's length settlement, judges should rescind agreements if there is a disparity in expertise between the parties and the weaker party misunderstood the agreement or its consequences). Other reform suggestions include judicial oversight for cases that are referred to mediation during litigation in order to "detect cases in which mediators' own economic interests resulted in objectively bad settlements."
109. Peter L. Murray, The Privatization of Civil Justice, 91 JUDICATURE 272, 316 (2008).
110. The American rule is that each party must bear his or her own costs except where the litigation is vexatious or an abuse of process. Congress has enacted a number of fee-shifting statutes that are exceptions to this rule.
111. England's cost-shifting approach to encourage mediation is similar in some respects to court-annexed arbitration programs in the United States that impose penalties against parties who reject an arbitral award in favor of a trial de novo unless a more favorable result is obtained at trial. Despite numerous challenges to these programs, courts have upheld them as legitimate means of promoting settlement. ALAN SCOTT RAU, EDWARD F. SHERMAN & SCOTT R. PEPPET, PROCESSES OF DISPUTE RESOLUTION: THE ROLE OF LAWYERS 540 (4th ed. 2006).
112. The exercise of the court's discretion regarding costs is found in Part 44.3 of the Civil Procedure Rules. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. CPR 44.3 (2) (a), available at http://www.justice.gov. uk/civil/procrules-fin/ contents/parts/part44.htm#IDAMJI5B. In deciding how to assess costs, the court must look at all the circumstances, including the conduct of the parties. CPR 44.3 (4) (a). Conduct includes behavior during the proceedings and in pre-action protocols.
113. Compared to the United States, in England there are far fewer challenges to the enforceability of mediated agreements. See, e.g., Brown v. Rice & Patel & ADR Group, [2007] EWHC (Ch) 625;
114. Crystal Decisions (UK) Ltd. v. Vedatech Corp., [2007] EWHC (Ch) 1062 (attempting to set aside the settlement agreement on the grounds of fraud).
115. See Janet Walker & Sherrill Hayes, Policy, Practice, and Politics: Bargaining in the Shadow of Whitehall, in HANDBOOK OF MEDIATION: BRIDGING THEORY, RESEARCH, AND PRACTICE 99 (Margaret S. Herrman ed., 2006). There is also experience with mediation in labor disputes.
116. See DUTCH REPORT, supra note 34, at 66.
117. Loukas A. Mistelis, ADR in England and Wales, 12 AM. REV. INT'L ARB. 167, 170 (2001);
118. see also HAZEL GENN ET AL., TWISTING ARMS: COURT REFERRED AND COURT LINKED MEDIATION UNDER JUDICIAL PRESSURE 1-20 (2007).
119. Mistelis, supra note 73, at 178.
120. See LORD WOOLF, ACCESS TO JUSTICE-INTERIM REPORT TO THE LORD CHANCELLOR ON THE CIVIL JUSTICE SYSTEM IN ENGLAND AND WALES (1995) [hereinafter LORD WOOLF, ACCESS TO JUSTICE-INTERIM REPORT], available at http://www.dca.gov. uk/civil/interim/ contents.htm;
121. LORD WOOLF, ACCESS TO JUSTICE- FINAL REPORT (1996), available at http://www.dca.gov. uk/civil/final/contents.htm.
122. It should be noted that "references to ADR [in England] are usually understood as being [a] reference[] to some form of mediation". Halsey v. Milton Keynes Gen. NHS Trust, [2004] EWCA (Civ) 576, [5].
123. LORD WOOLF, ACCESS TO JUSTICE- INTERIM REPORT, supra note 75, ch. 18, ¶ 32.
124. Civil Procedure Rules, 2005, SI 1998/3132, available at http://www.justice.gov. uk/civil/procrules-fin/menus/rules.htm.
125. For an American example of attempting to encourage settlement through procedural rules, see FED. R. CIV. P. 68, the Offer of Judgment Rule, which permits a defendant to serve an offer of judgment on the plaintiff.
126. FED. R. CIV. P. 68. If the plaintiff rejects the offer, she is liable for post-offer costs if she does not improve on the offer at trial.
127. See Robert G. Bone, "To Encourage Settlement": Rule 68, Offers of Judgment, and the History of the Federal Rules of Civil Procedure, 102 NW. U. L. REV. 1561, 1562 (2008).
128. Mistelis, supra note 73, at 171.
129. Halsey, [2004] EWCA (Civ) 576, [7] (internal quotation marks omitted).
130. [2001] EWCA (Civ) 1935.
131. Id. [4], [6].
132. Id. [14].
133. Id. [27].
134. Id. [25]-[27].
135. [2002] EWCA (Civ) 303.
136. Id.
137. See Leicester Circuits Ltd. v. Coates Brothers PLC, [2003] EWCA (Civ) 290;
138. Partridge v. Lawrence, [2002] EWCA (Civ) 1122;
139. Hurst v. Leeming, [2001] EWHC (Ch) 1051 (judgment given on May 9, 2002, after the Dunnett v. Railtrack plc. decision).
140. Compare Royal Bank of Can. Trust Corp. Ltd. v. Sec'y of State for Defence, [2002] EWHC (Ch) 1841 (Secretary of State for Defence deprived of costs because of refusal to comply with the government pledge to use ADR)
141. with Valentine v. Allen, [2003] EWCA (Civ) 915 (Dunnett distinguished where a party could demonstrate a real effort to compromise the dispute)
142. and Hurst v. Leeming, [2001] EWHC (Ch) 1051 (limiting the reach of Dunnett where it appeared that mediation had no real prospect of success).
143. [2004] EWCA (Civ) 576.
144. Id. [9].
145. European Convention on Human Rights art. 6 (1), Nov. 4, 1950, 213 U. N. T. S. 222.
146. Halsey, [2004] EWCA (Civ) 576, [9].
147. Id. [16] ("We do not, therefore, accept the submission made on behalf of the Civil Mediation Council that there should be a presumption in favour of mediation. ").
148. Id. [10].
149. Id. [11].
150. Id. [13].
151. Id.
152. Id. [16].
153. Id. [25].
154. Id. [28].
155. David Pliener, At Last, Clarity for Mediation, 11 NEW L. J. 878, 878 (2004).
156. Sir Gavin Lightman, Chartered Inst. of Arbitrators, Mediation: An Approximation to Justice, 73 INT'L J. ARB., MEDIATION & DISP. MGMT. 400, 401 (2007) (criticizing Halsey's reliance on Article 6 of the European Convention on Human Rights to prevent mandatory mediation and also criticizing the court's burden of proof scheme).
157. For a more explicit argument that mediation should be mandatory, see Sir Anthony Clarke, Master of the Rolls, Speech to the Second Civil Mediation Council National Conference: The Future of Civil Mediation (May. 8, 2008), available at http://www.judiciary.gov. uk/docs/speeches/mr-mediation- conference-may08.pdf ("[A] horse (even a very obstinate horse) is more likely to drink if taken to water. We should be doing more to encourage (and perhaps direct) the horse to go to the trough. The more horses approach the trough the more will drink from it.").
158. GENN ET AL., supra note 73, at 134.
159. Id. at 6, 52. The subjects of this evaluation were two court-annexed mediation programs in the Central London County Court. They consisted of (a) an experiment in quasi-compulsory mediation, involving automatic referral of cases to mediation, which ran for a year in the Central London Court between April 2004 and March 2005, and (b) a review of the operation of the Central London voluntary mediation scheme, which had been running continuously since 1996.
160. Id. at 1.
161. Id. at 52.
162. Five weeks before Halsey was decided, a pilot quasi-compulsory scheme had been established in May 2004 in Central London County Court that involved the automatic referral of selected cases to mediation with an opportunity to opt out.
163. See id. at 1. If parties failed to mediate and the judge did not accept their reasons, they would be liable for cost sanctions under Part 44 of the CPR.
164. Id. at 12. Professor Hazel Genn concludes in her evaluation of the program that, given the opt-out rate of around eighty percent and interviews she conducted with solicitors, Halsey had a significant effect on the pilot program: Indeed, it may not be an exaggeration to suggest that, whatever the precise intention of the court and the interpretation of the case by observers from different camps, the mood or tenor of the Halsey judgment and its representation in the professional press, effectively undermined both the object and operation of the automatic referral to mediation pilot.
165. Id. at 19.
166. See, e.g., Whitecap Leisure Ltd. v. John H. Rundle Ltd., [2008] EWCA (Civ) 1026;
167. Egan v. Motor Servs. (Bath) Ltd., [2007] EWCA (Civ) 1002;
168. IDA Ltd. v. Univ. of Southampton, [2006] EWCA (Civ) 145;
169. Burne v. "A", [2006] EWCA (Civ) 24;
170. Multiplex Constrs. (UK) Ltd. v. Cleveland Bridge UK Ltd., [2008] EWHC (TCC) 2220;
171. C v. RHL, [2005] EWHC (Comm) 873 (finding that mediation would be beneficial to the parties).
172. See, e.g., Daniels v. Comm'r of Police, [2005] EWCA (Civ) 1312 (finding that defendant acted reasonably in refusing to negotiate);
173. Sahota v. Singh, [2006] EWHC (Ch) 344 (imposing costs on successful party for refusal to negotiate);
174. Hickman v. Lapthorn, [2006] EWHC (QB) 12 (finding that a failure to demonstrate that defendant's position as to mediation and negotiation was unreasonable);
175. see also Gil v. Baygreen Props. Ltd., [2004] EWHC (Ch) 2029;
176. Multiplex Constrs. (UK) Ltd. v. Cleveland Bridge UK Ltd., [2008] EWHC (TCC) 2280, [90] (The defendants conceded that they owed money to the claimant but never made an offer of settlement with respect to this concession. The Court noted that the conduct of both parties was open to criticism, but the defendants' "obstinate refusal to make any settlement offer" was the reason this litigation was not settled. Costs were adjusted accordingly).
177. Nigel Witham Ltd. v. Smith, [2007] EWHC (TCC) 3027.
178. Earl of Malmesbury v. Strutt & Parker, [2008] EWHC (QB) 424. The parties waived the protections of confidentiality, and the court held that the party who agreed to mediation, but then took an unreasonable position in the mediation, was in the same position as a party who unreasonably refused to mediate.
179. Id. The court can take account of this behavior when assessing costs.
180. Id.
181. Merelie v. Newcastle Primary Health Care Trust, [2006] EWHC (QB) 1433;
182. see also Wright v. HSBC Bank PLC, [2006] EWHC (QB) 1473.
183. See, e.g., Strachey v. Ramage, [2008] EWCA (Civ) 384;
184. Couwenbergh v. Valkova, [2004] EWCA (Civ) 676;
185. Marchands Assocs. LLP v. Thompson P'ship LLP, [2004] EWCA (Civ) 878;
186. Chantrey Vellacott v. Convergence Group PLC, [2007] EWHC (Ch) 1774;
187. Sahota v. Singh, [2006] EWHC (Ch) 344 (discounting of fifty percent for the successful party's refusal to negotiate);
188. P4 Ltd. v. Unite Integrated Solutions PLC, [2006] EWHC (TCC) 2924 (awarding partial costs because of unreasonable refusal to mediate);
189. cf. Burchell v. Bullard, [2005] EWCA (Civ) 358 (agreeing that the Halsey factors were established and that cost consequences should be imposed on the defendants but declining to impose costs in the interest of fairness because the case involved conduct that predated Halsey).
190. See, e.g., Whapples v. Birmingham E. & N. Primary Care Trust, [2008] EWCA (Civ) 465, [28] ("[I]t is surprising how frequently even the most intractable case produces a satisfactory outcome in mediation assisted by a trained mediator. But that is a million miles away from saying that it is so unreasonable of a party not to undertake mediation at a stage before litigation. ");
191. Brown v. MCASSO Music Prods., [2005] EWCA (Civ) 1546, [15] (holding that even if the claimant refused to mediate, a significant balancing factor in refusing to award costs was the defendant's "unpreparedness to negotiate at a time when the judge was encouraging negotiation");
192. Reed Executive PLC v. Reed Bus. Info. Ltd., [2004] EWCA (Civ) 887, [46] (finding that prospects of a successful mediation were poor);
193. Nigel Witham Ltd. v. Smith, [2008] EWHC (TCC) 12, [36] (The defendants were the successful parties. The claimant argued that the defendants failed to mediate until late in the day when the majority of the costs had been incurred and, thus, their delay in agreeing to mediate should have cost consequences. The court found however, that "even if there had been earlier mediation, the Claimant's uncompromising attitude meant that it would not have had a reasonable prospect of success.");
194. Reynolds v. Stone Rowe Brewer, [2008] EWHC (QB) 497 (determining that mediation had little chance of success);
195. Re Midland Linen Servs. Ltd, Chaudry v. Yap, [2004] EWHC (Ch) 3380, [56]-[60] (concluding that there was not a "serious engagement" in mediation that would justify a Halsey finding that the petitioner should be deprived of costs). It is interesting to note the court's reasoning as to why the respondents failed to meet their burden of proof that would justify the imposition of costs. [T]he respondents had not provided sufficient evidence of their intention to go down the route of mediation to the other side.... [T]he case is marked by a pattern on behalf of the respondents of making and withdrawing offers,... hardly an incentive to the petitioner to negotiate.... I doubt whether the atmosphere that had been generated between the parties would have enabled a successful mediation to take place.
196. Re Midland Linen Servs. Ltd, Chaudry, [2004] EWHC (Ch) 3380, [60];
197. see also The Wethered Estate Ltd. v. Davis, [2005] EWHC (Ch) 1903, [26] (finding the delay in going to mediation not to be unreasonable);
198. Allen v. Jones, [2004] EWHC (QB) 1189 (no costs imposed where mediation would not have been suitable);
199. cf. McGeough v. Thomson Holidays Ltd., [2007] EWCA (Civ) 1509, [26] ("Mediation is a valuable facility, which has a significant role to play in the administration of justice. It does not in my view assist the cause of mediation if parties are urged to mediate in a situation in which there is no real possibility that it will help. ").
200. One clue to the court's thinking is the passage it quotes from Hurst v. Leeming, when Justice Lightman wrote, If mediation can have no real prospect of success, a party may, with impunity, refuse to proceed to mediation on this ground. But refusal is a high risk course to take, for if the court finds that there was a real prospect, the party refusing to proceed to mediation may... be severely penalised. Further, the hurdle in the way of a party refusing to proceed to mediation on this ground is high, for in making this objective assessment of the prospects of mediation, the starting point must surely be the fact that the mediation process itself can and does often bring about a more sensible and more conciliatory attitude on the part of the parties than might otherwise be expected to prevail before the mediation, and may produce a recognition of the strengths and weaknesses by each party of his own case and of that of his opponent, and a willingness to accept the give and take essential to a successful mediation. What appears to be incapable of mediation before the mediation process begins often proves capable of satisfactory resolution later.
201. Halsey v. Milton Keynes Gen. NHS Trust, [2004] EWCA (Civ) 576, [23] (quoting Hurst v. Leeming, [2001] EWHC (Ch) 1051, [13]) (internal quotation marks omitted).
202. U. S. litigation focuses on consent at the end point of mediation after parties reach an agreement, whereas in England, litigation relates to consent or the lack of consent at the front end of mediation. There are far fewer U. S. cases that involve disputes about parties' obligations to participate in mediation.
203. See Coben & Thompson, supra note 9, at 105-11 (reporting a total of 279 cases).
204. See infranote 121 & accompanying text (discussing values associated with consent).
205. I thank Nancy Welsh for this insight.
206. Halsey, [2004] EWCA (Civ) 576, [16].
207. See, e.g., Crystal Decisions (UK) Ltd. v. Vedatech Corp., [2007] EWHC (Ch) 1062 (challenging a mediated agreement on the grounds of duress and fraud).
208. This suggestion is consistent with some empirical evidence that parties are more likely to comply with mediated agreements than with court judgments because of the value of consent. See, e.g., Craig A. McEwen & Richard S. Maiman, Mediation in Small Claims Court: Achieving Compliance Through Consent, 18 LAW & SOC'Y REV. 11 (1984);
209. Roselle L. Wissler, Mediation and Adjudication in the Small Claims
210. See Michael Moffitt, Three Things To Be Against ("Settlement" Not Included), 78 FORDHAM L. REV. 1203, 1204 (2009).
211. Fiss, supra note 11, at 1078.
212. The specific features that weaken the foundation of consent are the blending of consensual and nonconsensual features in mediation in the United States and the imposition of cost consequences in England for unreasonable refusals to mediate.