Mediation generally works the best when all parties are willing.  The voluntary nature of mediation is one of the process's hallmarks.  However, sometimes parties end up in mediation, because a judge told them to go.  When volunteer mediating in the Cook County Courts I have seen participants still put real effort into the process and walk away with a self-determined agreement.  Those cases are the most fun to mediate.  It definitely brightens a mediator's day to see two people who were previous tense and stressed-looking shake hands and leave the room with smiles on their faces. 

Unfortunately, mediations do not always go so smoothly.  Sometimes one or more of the participants clearly evidences the attitude that they are only there because the judge sent them and as a result are not willing to actively participate. 

I recently read a Wall Street Journal article about an upcoming mandatory mediation program in the Manhattan Courts.  I definitely agree that court-ordered mediation has its place in the legal world.  Often Judges can review a file, hear the basic facts, and make a good call on a case ripe for mediation. 

So why am I bothered by the mandatory mediation program proposed for Manhattan?  I am curious as to why the decision was made to send every fifth case on the commercial calendar to mediation.  The arbitrariness of the system troubles me.  Not all cases are suited to mediation. 

In the case of complex business disputes, mediation might be the perfect solution down the road.  However, parties very well might need more information via the discovery process before a well-thought out agreement can be constructed to satisfy the parties' needs and interests.  I have mediated simple small claims cases where the parties are interested in settling but needed more information before drawing up an agreement.  Sometimes it is something as simple as getting a second estimate on a fender-bender.  One can only imagine that more information gathering would be desired in many commercial disputes.

So once again, why does a mediation program several states away bother me?  If the parties are arbitrarily chosen for early mediation for cases that logically demand some level of discovery, the success rate is likely to be low.  The perception of mediation in a major metropolitan area could suffer.  Given the influence of a city like Manhattan, the general perception of mediation could be negatively impacted in other big cities (e.g. Chicago).

While I like seeing mediation becoming more common, I prefer models where the cases are assigned based on the particular facts.  I also prefer models where the participants are encouraged, but do not feel coerced, into participating.