OBJETIVOS Objetivo General

Institutionalization of mediation as a normal step in litigation may affect the pattern and pace of litigation. Under the mandatory divorce mediation statute in Maine, mediation has become an ex- pected settlement event, forcing the lawyers and principals to seri- ously focus on the issues.217 _{McEwen and his colleagues found that} the mandated mediation in Maine encouraged the lawyers and prin- cipals to settle earlier than they otherwise would have.218 _Conceiva- bly, institutionalization of mediation could also delay settlement, de- pending on local judicial or legal norms about timing of settlement negotiations. If lawyers expect that they will eventually settle the cases in mediation, they may hold off conducting direct negotiations early in litigation.219

There is a split of opinion in the mediation community over the best time to conduct mediation. Some argue that mediation is most appropriate early in litigation (or better yet, before litigation), when principals have not yet hardened their positions and invested a great deal in litigation expenses.220 _{Others argue that mediation is not ap-} propriate until late in litigation because principals can make in- formed decisions only after completing discovery.221 _{Whatever the lo-} cal norms for the timing of mediation, where it becomes institution- alized, it is likely to be a (if not the) central settlement event around which other litigation activities revolve.222

217. See McEwen et al., supra note 23, at 1387.

218. Seeid. It is not clear how much time mediation saved, considering that the tim- ing in the litigation varied. In cases that otherwise would have settled “on the courthouse steps” just before trial, a mediation conducted a week or two before trial resulted in some—but not substantial—time savings. On the other hand, when mediation occurred early in the litigation, it presumably resulted in much greater time savings.

219. See McAdoo & Welsh, supra note 6, at 10. In Hennepin County, Minnesota, where Supreme Court Rule 114 authorizes court referral to mediation,

[t]here may be less lawyer-to-lawyer negotiation going on now, with a pref- erence to wait for a “mandatory” mediator’s assistance with settlement. . . . [T]he sheer number of lawyers practicing makes informal, more civil negotia- tions difficult. Lawyers like the fact that with mediation under Rule 114, an outside neutral is brought to the case who can assist the lawyers to tone down their posturing, to be realistic about their cases, and to allow clients to be more actively involved in the ultimate resolution. In addition, mediation provides a specific day when all parties come to the table, with the task at hand being to settle.

Id.

220. See ROGERS & MCEWEN, supra note 3, § 4:06. 221. Seeid.

222. One of my students, who is a paralegal with extensive experience working for an insurance defense firm, describes how her conversations with clients and the lawyers in her firm often involve planning for their moves in mediation. See Interview with Noël

The involvement of lawyers in mediation may affect the timing of the process in several ways, generally adding time pressure to the mediation process. When lawyers attend mediation, the scheduling of mediation sessions may be more difficult because it obviously re- quires coordination of at least two additional schedules. Because lawyers often have tight schedules, the time available for mediation may be quite constrained. For example, in the dependency mediation clinic at my school, it is not unusual for lawyers to arrive late, have hearings or other appointments scheduled for a time soon after the mediation is set to begin, and be interrupted during mediation ses- sions by calls on their pagers and cellular phones.223 _{Given the pace} of their schedules, they may want to settle cases as fast as possible, and they often express impatience if the principals, including their own clients, talk “too much.” If the lawyers do not consider the par- ties’ relationship concerns224 _{to be relevant or important, these issues} may not be raised at all or discussed in much depth. When the prin- cipals are paying their lawyers on an hourly basis (often in addition to half of the mediator’s fees), the principals may also feel a financial pressure to avoid dealing with issues that are not legally relevant and thus “get the mediation over” as quickly as they can.

Given all these time pressures, everyone involved may be reluc- tant to consider scheduling additional mediation sessions and thus may try to complete a settlement in a single meeting. When media- tion takes place shortly before a scheduled trial date, it may be diffi- cult or impossible to schedule a second session even if all the partici- pants agree that it would be productive. The regular presence of lawyers may thus lead to a norm of mediations conducted in a single, possibly rushed session. Indeed, that is what McEwen and his col- leagues observed in divorce mediation in Maine, where mediation usually involves a single mediation session lasting two to three hours.225 _{By contrast, Jessica Pearson and Nancy Thoennes found} that in public and private divorce mediation programs that lawyers did not attend, the mediations involved an average of 3.4 to 6.2 ses-

Miner, graduate student, Nova Southeastern University, in Fort Lauderdale, Fla. (Oct. 3, 1996); seealso Edward F. Sherman, The Impact on Litigation Strategy of Integrating Al- ternative Dispute Resolution into the Pretrial Process, 15 REV. LITIG. 503, 510 (1996) (“ADR is now a central consideration in pretrial planning.”).

223. See Interview with Sharon Boesl, Director, Clinical and Community Outreach Center, School of Social and Systemic Studies, Nova Southeastern University, in Fort Lauderdale, Fla. (Sept. 29, 1996); Interview with Lynne Lucas, Fort Lauderdale mediator, in Fort Lauderdale, Fla. (Sept. 26, 1996). As Craig McEwen pointed out, norms for timing are a function of the local culture. Thus, if overscheduling by lawyers was considered un- acceptable (especially by the judges), this time pressure could be reduced. See McEwen,

supra note 150.

224. See supra notes 175-78 and accompanying text. 225. See McEwen et al., supra note 190, at 154.

sions, totaling an average of 6.3 to 8.7 hours, respectively.226 _{It is} possible that the difference in the amount of time in mediation is a function of whether discovery had been completed prior to mediation. Given the view of many lawyers that mediation is appropriate only after discovery has been completed, it is possible that mediations with lawyers attending are more likely to occur with discovery largely completed. Obviously, if discovery had not been completed prior to mediation, one would expect that it would take additional time in mediation to collect and analyze the relevant information. Nonetheless, the participation of lawyers is likely to add time pres- sure in mediation for the reasons described above.

In sum, mediation is a central settlement event in liti-mediation culture. When the lawyers and parties expect that litigation will normally end in mediation, one can assume that they will plan their activities in litigation with an eye toward how the case will “play out” in mediation. Including lawyers in the mediation sessions may often restrict the time available and the scope of issues considered appropriate for discussion. Ironically, lawyers’ participation in me- diation may reduce the quality of the principals’ consent unless me- diators prepare to handle time pressures that may accompany the lawyers in mediation.

C. Use of Adversarial and Problem-Solving Approaches in