by Elizabeth Ellen Gordon. Lewiston, New York: The Edwin Mellen Press, 2009. 164pp. Cloth. $99.95/£64.95. ISBN: 9780773448094.
Reviewed by Rosalie R. Young, Public Justice Department, State University of New York at Oswego, Emerita, email rosalie.young [at] oswego.edu.
Elizabeth Ellen Gordon, associate professor in the Department of Political Science and International Affairs at Kennesaw State University in Georgia, documents attorney response to the North Carolina court-mandated mediated settlement conference (MSC) pilot program. Superior Court judges can require an MSC where the plaintiff has made a claim of at least $10,000 in a non-domestic civil case. Gordon describes the pilot program in 1992 and 1993 when she was part of the evaluation team at the Institute of Government at the University of North Carolina at Chapel Hill. The North Carolina General Assembly had requested that the Administrative Office of the Courts conduct an assessment of the MSC program. Although the program brought only marginal changes to legal practice and case disposition times, litigant response was favorable. In 1995, the program was expanded to all North Carolina superior courts.
The Institute of Government study drew data from five sources: surveys of litigants, certified mediators, and members of the North Carolina State Bar Association whose addresses were in the pilot areas;, observations of 31 mediated settlement conferences:, and court records. Summary data are available in an appendix and these are referred to throughout the book. Gordon also includes brief case descriptions which help to clarify her material.
Although the goal of this very readable volume is to clarify attorney reactions and roles, the author also provides clear descriptions of the goals, theory and philosophy of both ADR (Alternate Dispute Resolution) in general and mediation in particular. Especially valuable is her recognition of the contrast between the adversarial nature of legal practice, where attorneys are trained to advocate zealously for their clients, and the goals of mediation, which focuses focus on cooperation, the voluntariness of participants, and “win-win” conclusions.
While the MSC is closer to mediation than litigation, it differs in some ways. In traditional mediation, the clients are the primary participants and the focus is often on future relationships. In MSC cases, there may be no post-case relationships. In traditional mediation, litigant interaction and communication is a primary goal, but in the MSC lawyers control the process as they do in traditional legal negotiations. Despite lawyer control, the majority of litigants viewed mediation as positive and fair. Mediators were often viewed as willing listeners. Thus lawyers were able to maintain control while improving client [*112] satisfaction, two positive results for attorneys.
Gordon describes the development of the MSC program including a brief discussion of the influence of programs in Florida and Maine on North Carolina which closely followed the Florida model for civil mediation. The reader leaves the volume with a better understanding of both mediation and the mandated mediation settlement conference program in North Carolina.
North Carolina attorneys were involved with the program from its inception. A relatively small group of activist North Carolina Bar Association leaders and judges, widespread interest in mediation by the public and bar, and the success of the Florida mediation program were important factors in the development of the MSC. Supporters of the program met with many local bar associations. The Bar sought and received the endorsement of the North Carolina Supreme Court before taking the proposal to the North Carolina General Assembly. Objections from the Court would have derailed the plan. This process made the MSC appear to be noncontroversial and routine. Gordon explains the success using Herbert Jacob’s model of routine policy development (pp.34-41). Important factors were the lack of cost to the state and the proposal for a pilot program with an expiration date involving 13 of 100 counties. (As noted above, in 1995 the General Assembly approved the statewide implementation of MSC giving superior court judges the right to order mediation.
Gordon suggests that lawyer involvement was a political move which led to both ready acceptance of the MSC program and its minimal impact on the court system and the practice of law in North Carolina. While the stated goal was to increase case efficiency for both the courts and legal practitioners, surveys demonstrated only minimal change. Average case length decreased slightly, while settlement rates remained constant at about 90 percent. The basic legal pattern of a civil dispute remained, although the mediation might have altered the timing of settlement negotiations. The deadline of a mediation order or a conference date may promote settlement.
Gordon questions whether the MSC program was the result of the ADR movement, efforts at court reform, or privatization. She suggests that with MSC mediation has adapted to the legal environment without transforming the legal system. Lawyers remain in charge and neither voluntary participation by litigants nor the empowerment of disputants is a key goal. As is typical of lawyer-initiated court reform, the role of lawyers remains intact and change has been marginal. The MSC provides a new role for the lawyer, since at least initially all certified mediators were required to be experienced lawyers. She concludes that the MSC is not traditional privatization because it does not substitute a private action for a public activity. Instead the MSC is a mandated private dispute resolution device which at times replaces another private device, lawyer to lawyer negotiation. Gordon suggests that with the MSC the state sanctions private dispute resolution. Court mandates and determination of standards for mediator certification demonstrate public control, but disputant right to select mediators, the lack of judicial oversight of the fairness of the settlements, and disputant responsibility for paying mediators make court ordered [*113] mediation a “mandatory private enterprise” (p.109).
Despite MSC policies, during the research period settlement conferences were not always mandated for eligible cases by judges. Gordon noted that the mandate was often ignored by disputants or delayed beyond the specified dates. Some judges refrained from issuing a mediation order if either lawyer objected. Only rarely were penalties imposed for non-compliance by the judiciary.
The active involvement of lawyers in developing the program and setting standards has led to minimal change. Gordon notes, “lawyers set up the program and gave themselves starring roles” (p.100). However, she suggests that these modifications at the margins should not result in a dismissal of the mandated mediated settlement conference program. She argues that litigants are now more involved, more satisfied, and better educated about the civil justice system. Secondly, both mediation training and the activity of certified mediators have spread knowledge of traditional mediation activities to both attorneys and litigants, including the discussion of emotional concerns and the benefits of compromise. Finally, she suggests that mediation is generally seen as a positive concept by the public which frequently views the American justice system with skepticism.
In this brief volume, Gordon offers the reader an understanding of traditional mediation, mandatory mediation and the origins and initial implementation of the mandated mediated settlement conference in North Carolina. Her seven chapters concisely raise issues relating to the lawyer’s role and mediation values, the history of MSC, lawyers’ views of medication, the impact of mediation on attorney attitudes, the reasons why attorneys support MSC, the effect of mediation on the private practice of lawyers, and a concluding chapter on the impact of the mediated settlement conference.
Despite these positives, the volume has several serious limitations. First, most of the copious references date to the 1990s and earlier. At that time there was only limited research on court mandated mediation. As Gordon notes in her “Epilogue,” there has been considerable research since the implementation of the mandated MSC in North Carolina which could have profitably been added to her book. Secondly, the reader is left wondering what has happened in North Carolina since the mid 1990s. According to a brief summary on the North Carolina Court System website, disputants are now offered a “dispute resolution menu” from which to choose, including mediated settlement, neutral evaluation, arbitration and summary jury trial. Mediated settlement is the default if the parties do not make an active choice.
Jacob, Herbert. 1988. SILENT REVOLUTION. Chicago: University of Chicago Press.
MEDIATED SETTLEMENT CONFERENCE PROGRAM. http://www.nccourts.org/Courts/CRS/Councils/DRC/MSC/Default.asp
© Copyright 2010 by the author, Rosalie R. Young.