Should Mediation be Mandatory?

This is the thought I had this morning while reading through a mediation memo from the opposing side that was clearly written over a standard fill-in-the-blank precedent. It was also clear to me that this particular precedent had not been reviewed by an actual lawyer in a very long time or, at the very least, not in great detail. It was filled with inaccurate case law, irrelevant fact comparisons and the list goes on.

Now, don’t get me wrong. I’m not knocking on mediation. Civil litigation is an expensive prospect and mediation gives parties the opportunity to settle their dispute without any further expenses, and the benefit of a neutral party to help evaluate the strengths and weaknesses of their own and their opponent’s cases. My question is, why is it mandatory in some courts?

There are cases where mediation makes sense, but there are also cases where it doesn’t. Yes, mediation can help a party evaluate a case, but in my experience, clients tend to care more about a dollar amount than a legal position. Without giving the parties the discretion to choose whether they should mediate based on their own unique cases, mandatory mediation either ends up feeling like an unnecessary expense, or pretrial lite.

Now if you, like me, ever decided to try looking up this subject, you’ll find no shortage of articles and law blogs waxing poetic on the virtues and benefits of mandatory mediation, and that all courts should make mediation mandatory before trial. The funny thing is most of these articles were written by contingency lawyers. In short, the nation is facing a dangerous shortage of tennis balls being thrown, says the puppy union.

Max H. Shin, Associate Lawyer