Thursday, July 06, 2006

It’s Still Just A Duck – Not Mediation!

In an earlier post I noted that some ADR processes are called mediation when, in fact and practice, they are not mediation at all! So, what on earth is “binding mediation?”

In the California case of Lindsay v. Lewandowski, 2006 Cal. App. LEXIS 821 [Cal.App. 4th 2006] the court explored the differences between mediation and arbitration and “binding mediation”. In the case on appeal, the parties reached a mediated settlement on all but two terms. The payment terms were left up in the air and the parties also agreed “in the event of a dispute as to the terms of the settlement the parties agree to return to the mediator for final resolution by . . . .” Here is where the communication broke down. One version said binding arbitration, but had a line through it, and was replaced by the word “mediation.”

Here’s how the mediator described the procedure he intended to use to resolve the parties’ disagreement [this was not a good mediator move] over the payment terms of the settlement he had mediated: “[T]he parties have agreed in advance that in the event the parties fail to agree, I then decide these terms and conditions, typically by asking the parties to each submit to me their final offers, accompanied by their oral argument as to why I should select their version over all others. I then select as the final binding provision the term or terms of either one party or the other.” [Sounds like arbitration to me – baseball arbitration, actually!]

There are significant problems with the concept of “binding mediation.” Among them are:

What rules apply – the arbitration rules, the court-ordered mediation rules, the mediation confidentiality rules, or some mix?

If only some rules, how is one to chose?

Should the trial court take evidence on the parties’ intent or understanding in each case?

Three justices on the Court of Appeal were flabbergasted, and one of the concurring justices called the term “binding mediation” oxymoronic [I agree!].

All to say, call the process what it really is – arbitration; it is not mediation, just a duck! [You know if it looks, walks and quacks like a duck - it’s a duck!]

Please read and re-read this excellent opinion. How would you, as the mediator, have handled the parties’ disagreement?

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