Ellen E. Deason

I. INTRODUCTION

Among alternatives to adjudication, mediation is arguably even more alternative than arbitration. At least the process differs more: while arbitration offers a different type of neutral decisionmaker, mediation takes decisionmaking entirely out of the hands of the neutral and vests it in the parties. The meaning of the term Aalternative@ becomes blurred, however, in that mediation is intertwined with adjudication as a means of settling litigation. Mediation=s role in settlement means it will be an important part of the procedural world of the future. So, although the subtitle of this symposium refers only to decisional models of resolutionBadjudication and arbitrationBthis paper focuses on the development of a rule system for mediation.

Some procedural rules for mediation, such as those associated with court-sponsored programs, were created directly for the use of mediation within the adversary system. Other rules apply to mediations generally or were designed for mediation programs with no direct connection to the courts. Both types of rules are linked to the adjudication system, however, in that many of their provisions govern how a mediation will be treated in later litigation. As a result, the growth of mediation procedure is important not only for the development of mediation, but also in defining the relationship between mediation and litigation.

This paper begins with one person=s experience of the ongoing changes in the relationship of litigation and mediation, changes that are both reflected in and stimulated by procedure. The acceptance of mediation by Alitigators@ is part of a transformation in how

* Professor, The Ohio State University Moritz College of Law. This article is based on a

presentation at a joint session of the Dispute Resolution and Civil Procedure Sections at the AALS

Annual Meeting, January 3, 2004 on the topic ACompeting or Complementary Rule Systems?

Adjudication, Arbitration, and the Procedural World of the Future.@ I appreciate helpful comments from

the creation of procedures to establish and encourage mediation in the civil litigation setting. Developing a legal structure to support mediation should not be solely a matter of selecting

procedures that will promote it as a means of settlement. Even in a litigation system whose structure reveals a Apreference for private ordering,@ 5 and whose rules establish a Aclear policy of favoring settlement of all lawsuits,@ 6 there are other important considerations. Accessible justice, open court proceedings, effective enunciation of rights, consistent outcomes, and the fundamental rule of law are values that must not be ignored in a single-minded effort to encourage mediation.

Of equal concern to many is preserving the principles at the heart of mediation. Dispute resolution scholars worry that core values such as party self-determination, voluntariness, and mediator neutrality are threatened as mediation increasingly becomes an established part of the litigation system.

5 Samuel R. Gross & Kent D. Syverud, Don =t Try: Civil Jury Verdicts in a System Geared to Settlement, 44 U.C.L.A. L. REV. 1, 4 (1996).

Marek v. Chesney, 473 U.S. 1, 10 (1985).

A strong body of scholarship examines how the growth of alternative dispute resolution and a culture of settlement can endanger important goals and characteristics of our justice system. See, e.g., Harry T. Edwards, Alternative Dispute Resolution: Panacea or Anathema?, 99 HARV. L. REV. 668 (1986)

8 There is an extensive literature examining the changes in mediation practices and values associated with its use in the adversary system. See, e.g., James J. Alfini, Trashing, Bashing and Hashing it Out: Is This the End of AGood Mediation@?, 19 FLA. ST. U. L. REV. 47 (1991)

Finally, the paper looks to the future and examines conflicts over the values at stake in establishing a procedure for enforcing mediated agreements, which has the potential to become the next major issue in the development of a legal framework for mediation. The extent to which developing the UMA and the Model Law involved compromising and balancing both mediation and adjudication values argues for great sensitivity in considering whether to establish procedures for summary enforcement of mediated agreements.

II. PROCEDURAL DEVELOPMENTS AND CHANGING APPROACHES TO DISPUTES

As litigation, mediation and the relationship between them evolve, so do the attitudes of lawyers. Although there are undoubtedly still litigators who regard mediation as an abandonment of zealous advocacy or as an admission that a case is weak, current patterns of ADR use suggest that this strictly adversarial view is no longer the norm.

16 The professors may have been trying to teach us something more, or something more nuanced, but that=s what I learned. I recall discussions about the shortcomings of litigation, but no focused examination of settlement or of resolution models that did not feature adjudication as the endpoint.

15 See Roselle L. Wissler, Barriers to Attorneys= Discussion and Use of ADR, 19 OHIO ST. J. ON DISP. RESOL. 459, 484 (2004) (reporting that more than half of the Arizona trial attorneys answering a 2001 survey thought other attorneys would not view a proposal to use ADR as a sign of weakness compared to 13% who thought it would be seen as a weakness).

16 This characterization was, of course, the product of earlier alterations in perception. For example, during the 1970s there was a transition in lawyers= description of themselves from Atrial lawyer@ to Alitigator.@ John F. Grady, Trial Lawyers, Litigators and Clients= Costs, 4 LITIG. 5, 6 (1978).

In practicing law, I learned that lawyers not only litigate for clients with disputes, but also negotiate and mediate. Almost all my cases settled at some point during the litigation process. I gradually realized that our clients were often better served by an agreement charting a course for future dealings than by a court-imposed remedy. As a Alitigator,@ my initial activity in a case was primary a traditional narrowly-defined version of litigation. But as the case progressed, settlement became the central litigation effort. Even when I thought I was focused entirely on classic litigation, the question in the background was always, AHow far will this case need to go before the parties can find common ground for an agreement?@ In this way, negotiation, mediation, and other settlement procedures were an integral part of the litigation process.

17 We were dedicated to Awinning@ these decisions, of course, and a win often translated into a more favorable negotiating position. Whether positive or negative for our client, however, these judicial decisions were primarily significant because they supplied a sharper definition of the issues that could create movement toward settlement. Not only was settlement an integral part of litigation, but adjudication was an important aspect of the settlement process.

17 Because much of my work involved cases before the Federal Energy Regulatory Commission, the route to a final court decision involved more layers than a typical court case: an Administrative Law Judge made an initial decision, which was appealed to the Commission and eventually reviewed by the federal court of appeals. The relationship I describe between these decisions and settlement was perhaps more striking and thus more readily observed in an agency setting, but it was not different in kind from my experience in federal district court litigation.

Now, in examples my students bring to dispute resolution classes from their law firm work, I see suggestions of a further change in lawyers= conceptualization. Some lawyers are beginning to see mediation as a separate independent process as well as a component of litigation. Students speak of disputes in which litigation is not assumed, or even presumed, as the process of choice. There are lawyers who view litigation and mediation as different but compatible tools for dispute resolution and who select or combine these tools according to the goals and circumstances of the situation. They may choose to file suit because they seek an adjudication.

18 There will always be a need to resolve disputes through public adjudication. First, when there is a need to establish rights or create precedent, settlement is functionally inadequate. See Fiss, supra note 7. Settlements carry no formal weight in later judicial decisions and produce no rules that are binding on nonparties. The value of precedent in guiding future conduct and creating certainty in expectations is thus lost. See, e.g., Jule Coleman & Charles Silver, Justice in Settlements, 4 SOC. PHIL & POL=Y 102, 114-19 (1986). Public settlement agreements could conceivably affect the direction of the law through the force of an effective example, but confidential settlements do not offer even this contribution to the development of law. See Judith Resnik, Whose Judgment? Vacating Judgments, preferences for Settlement and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA L. REV. 1471, 1494-95 & n.90 (1994) (observing that there is no third-party right of access to settlements in court¬sponsored ADR programs and that confidentiality of settlement agreements is permitted as a means of encouraging settlement).

Another category of disputes better suited to litigation than mediation are those that involve matters of strongly held principle or conscience that the parties do not want to compromise. Frank E.A. Sander & Steven B. Goldberg, Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure, 10 NEG. J. 49, 57 (1994).

Finally, settlement is also extremely difficult in cases characterized by the Ajackpot@ syndromeBwhen the plaintiff expects a large recovery in excess of his damages but the defendant disagrees about this likelihood. Id. at 59. See also Jeanne M. Brett et al., The Efectiveness of Mediation: An Independent Analysis of Cases Handled by Four Major Service Providers, 12 NEG. J. 259, 267 (1996) (reporting that cases in which one party had a potential for a large recovery or had decided settlement was not in their financial interest were typically the cases that did not settle).

choosing to shape litigation, if one pursues it at all, entirely in the service of reaching a favorable agreed resolution.

20 but the observations do hint that this change in the relationship between litigation and mediation may be emerging. These conceptual developments have been inextricably linked to procedural developments. Our system of civil litigation and its rules have both mirrored and shaped the changing relationship between litigation and settlement. Rule 16 of the Federal Rules of Civil Procedure reflected litigation developments as it developed from a pretrial rule that did not facially contemplate settlement at all into a rule that institutionalizes settlement conferences and Aspecial procedures to assist in resolving the dispute.@

19 Peter N. Thompson, Enforcing Rights Generated In Court-Connected Mediation BTension Between The Aspirations of a Private Facilitative Process and the Reality of Public Adversarial Justice, 19 OHIO ST. J. ON DISP. RESOL. 509, 516 (2004).

20 Many students still describe their experience of mediation in a law firm as Awe showed up, we shut up, we left,@ especially when the mediation was court-ordered.

21 FED. R. CIV. P. 16(a)(5), (c)(9). Amendments to the rule in 1983 Arecognize[d] that it ha[d]

become commonplace to discuss settlement at pretrial conferences.@ FED. R. CIV. P. 16 advisory

committee=s note. In 1993, the rule was further revised more accurately reflect Athe various procedures

that, in addition to traditional settlement conferences, may be helpful in settling litigation.@ Id. See David

L. Shapiro, Federal Rule 16: A Look at the Theory and Practice of Rulemaking, 137 U. PA. L. REV. 1969,

1992 (1989) (pointing out that the 1983 amendments explicitly authorized preexisting judicial settlement

These proceduresBwhich expose attorneys to mediation in referred cases or require them to consider mediation as part of their normal litigation planningBare thought to have helped some local legal cultures shift toward increased, and earlier, use of mediation.

is associated with earlier review of case files for settlement, greater client participation in litigation, changes in settlement strategies and behaviors, and an increased acceptance of mediation.

28 See, e.g., Bobbi McAdoo, A Report to the Minnesota Supreme Court: The Impact of Rule 114 on Civil Litigation Practice in Minnesota, 25 HAMLINE L. REV. 410, 416-19 (reporting a large increase in mediation under a Amandatory consideration@ rule, with more than 90% of metropolitan respondents predicting they would continues to use mediation if the rule were repealed)

29 Ontario=s Rule 24.1 establishes an Aopt-out@ model of mandatory mediation that requires an application in person for an exemption. Mediations are held early, usually before discovery begins and lawyers must bring their clients. Julie MacFarlane, Culture Change? A Tale of Two Cities and Mandatory Court-Connected Mediation, 2002 J. DISP. RESOL. 241, 244 (2002).

30 Id. at 288-301. 31 Id. at 310-11.

32 For example, several studies have found that lawyers who report they favor the use of mediation do not necessarily use it regularly or recommend it to clients. John Lande, Getting the Faith: Why Business Lawyers and Executives Believe in Mediation, 5 HARV. NEG. L. REV. 137, 218 & n.233 (2000)

impartiality of the mediator.

A. The Importance of Confidentiality

First, a few words are necessary on why legal protection for confidentiality is important to the development and effective use of mediation. In settlement mediation, exchange of information is an important aspect of the process as parties work toward reaching a consensual agreement.

42 It becomes crucial if the agreement is to be a Acreative@ response to the dispute that goes beyond the scope of the remedy offered in court. In short, parties who are more candid and forthcoming are thought to be more likely to maximize the potential benefit of their agreement.

39 See UMA prefatory note '' 1, 2. For a discussion of core mediation values see Joseph B. Stulberg, Fairness and Mediation, 13 OHIO ST. J. ON DISP. RESOL. 909 (1998)

40 Mediation is not limited to seeking an agreement. Transformative mediation, for example,

emphasizes empowerment and an improvement in the disputants= relationship. See generally ROBERT A.

BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT

THROUGH EMPOWERMENT AND RECOGNITION (1994). But an agreement is the desired goal in much

mediation, particularly when it is selected as an alternative to litigation or as part of the litigation process.

41 See, e.g., Russell Korobkin, A Positive Theory of Legal Negotiation, 88 GEO. L. J. 1789, 1806 (2000) (arguing that withholding information in a negotiation increases transaction costs and raises the risk of impasse)

42 See, e.g., Dean G. Pruitt, Achieving Integrative Agreements, in NEGOTIATING IN ORGANIZATIONS 35, 37-41 (Max H. Bazerman & Roy J. Lewicki eds. 1983)

43 Within the mediation process, a mediator offers protection against harmful use of information by guarding confidences a party reveals to her in a caucus unless she has permission to share them with the other side. A mediator does not, however, have this control outside the mediation process, particularly in follow-on or unrelated litigation. Absent adequate legal protection, the opposing party may reveal, or the mediator may be compelled to reveal, mediation communications.

Preventing disclosures is also crucial to another important aspect of mediation. Mediator neutrality, Aa primary value of mediation,@ 46 depends on the mediator=s ability to avoid taking

43 See Ellen E. Deason, Predictable Mediation Confidentiality in the U.S. Federal System, 17 OHIO ST. J. ON DISP. RESOL. 239, 245-36 (2002).

44 See, e.g., Fed. Deposit Ins. Corp. v. White, 75 F. Supp. 2d 736, 737 (N.D. Tex. 1999) (hearing testimony about mediation in the absence of mediation privilege)

45 See generally Ellen E. Deason, The Quest for Uniformity in Confidentiality: Foolish Consistency or Crucial Predictability?, 85 MARQ. L. REV. 79, 79 (2001)

46 Jacqueline M. Nolan-Haley, Informed Consent in Mediation: A Guiding Principle for Truly Educated Decisionmaking, 74 NOTRE DAME L. REV. 775, 837 (1999). But see James R. Coben, Gollum, Meet Smeagol: A Schizophrenic Rumination on Mediator Values Beyond Self-Determination and

sides. Neutrality is impossible, however, if a mediator is called to testify about events in a mediation

Procedural prohibitions on disclosures of mediation communications also safeguard the integrity of courts in a world of intertwined mediation and litigation. Judges need to stay separate from the content of mediations because they may adjudicate the underlying dispute or a dispute that arises out of a mediation. Procedures to limit disclosures protect judges from the perception of bias and impropriety that would be raised by the possibility of ex parte communications about a mediation. This is especially true when the court sponsors a mediation program and is thus linked institutionally to the mediation.

B. The Inadequacy of Existing Protections

Neutrality, 5 CARDOZO J. CONFLICT RESOL. 65, 73-74 (2004) (describing neutrality as Aill-defined@ with a Anon-interventionist fiction [that] obscures a favoring of the dominant community and dominant values.@)

See NLRB v. Joseph Macaluso, Inc., 618 F.2d 51, 55-56 (9th Cir. 1980) (per curium).

See Marchal v. Craig, 681 N.E.2d 1160, 1163 (Ind. Ct. App. 1997)

49 See ROBERT J. NIEMIC ET AL., GUIDE TO JUDICIAL MANAGEMENT OF CASES IN ADR 112-13

The shortcomings of other legal protections for confidentiality and the vast variation in these provisions put the achievement of the UMA in context. In the federal system, Rule 408 of the Federal Rules of Evidence offers only limited protection for selected aspects of settlement negotiations,

The Alternative Dispute Resolution Act of 1998, which mandates ADR programs in federal district courts, does not itself establish any procedural protections for confidentiality. Instead, the Act requires each district court to protect confidentiality in its program by local rule.

and some courts have found that local mediation confidentiality rules are inadequate to prevent in-court disclosures about the content of court-sponsored mediations.

(2001).

50 Criticism of Rule 408 abounds. See, e.g., SARAH R. COLE ET AL., supra note 4, '' 9:05-9:07, Wayne D. Brazil, Protecting the Confidentiality of Settlement Negotiations,39 HASTINGS L J. 955, 957-82 (1988)

51 The federal Administrative Dispute Resolution Act includes a limited confidentiality provision that functions like a privilege, but that Act covers only federal agency mediation programs. 5 U.S.C. ' 574(a), (b) (2000). The protection covers communications made in caucus with an ADR neutral, but not in joint sessions with other parties. Id. ' 574(b)(7).

52 28 U.S.C. ' 652(d) (2000). Courts have held that the ADR Act=s Ageneral mandate to establish

the confidentiality of court-ordered mediation proceedings@ does not itself create a mediation privilege.

Folb v. Motion Picture Indus. Pension & Health Plans, 16 F. Supp. 2d 1164, 1176 (C.D. Cal. 1998), af=d

mem., 216 F.3d 1082 (9th Cir. 2000)

53 Many of the federal court rules fail to designate any legal mechanism to protect confidentiality. See Deason, supra note 43, at 311-12 (noting the ambiguity of the term Aconfidentiality@ and uncertainty in court rules regarding their application to disclosures in future cases, other courts, and extra -judicial settings)

54 See, e.g., Datapoint Corp. v. Picturetel Corp., No. Civ.A.3:93-CV-2381D, 1998 WL 25536

privilege in the absence of a clear mandate from Congress. The states have taken the lead in providing mediation parties procedural assurances that the confidentiality of the process will be respected. Prior to the UMA, virtually all of them provided some form of confidentiality for some mediation communications. About half had enacted a generally applicable mediation confidentiality provision

(N.D. Tex. Jan. 14, 1998) (declining to recognize privilege in S.D. Tex. R. 20(I) despite terms making mediations confidential and protecting them from disclosure).

Moreover, and ironically, local rules may not even be applicable at all in some litigation concerning communications made in federal court mediation programs. For example, under Rule 501 of the Federal Rules of Evidence, state law of privilege is controlling when state law supplies the rule of decision. See, e.g., Olam v. Cong. Mortgage Co., 68 F. Supp. 2d 1110, 1121-25 (N.D. Cal. 1999) (applying state law on confidentiality rather than the federal court rule to a dispute over enforcement of agreement reached in mediation).

Furthermore, even when federal law governs, Rule 501 does not by its terms recognize federal court rules as an appropriate source of privilege. See Deason, supra note 43, at 313 (noting that Fed. R. Evid. 501 requires federal courts applying federal law to use the federal common law of privilege unless required otherwise by the U.S. Constitution, an Act of Congress or a Supreme Court rule). But see In re Anonymous, 283 F.3d 627, 627, n.16 (4th Cir. 2002) (using attorney disciplinary proceeding to apply its confidentiality rule rather than recognizing federal mediation privilege).

55 See Folb v. Motion Picture Indus. Pension & Health Plans, 16 F. Supp. 2d 1164 (C.D. Cal. 1998), af=d mem., 216 F.3d 1082 (9th Cir. 2000)

56 See In re Grand Jury Subpoena Dated December 17, 1996, 148 F.3d 487, 493 (5th Cir. 1998)

57 UMA Prefatory note ' 4. More than 250 state statutes provided a mediation privilege in some form. Id. ' 3.

60 In addition, in instances when state law applies, the Act can also bring some degree of uniformity to protection in federal courts. It might even serve as a template for developing a matching federal privilege.

C. Fostering Improved Protection and Uniformity

The goal of the UMA is to improve protection, coverage and predictability for confidentiality in mediation. NCCUSL and ABA committees worked together in an innovative joint drafting effort to create an Act with widespread support.

been enacted in two statesBNebraska and Illinois. The centerpiece of the Act is a privilege that prevents disclosure of mediation communications, broadly defined, in discovery processes or as evidence in a proceeding.

Actually, the Act establishes multiple privileges. A party to a mediation may refuse to disclose,

58 See Deason, supra note 45, at 89-95 for a description of the discrepancies and ambiguities in statutory protection. See also Scott H. Hughes, The Uniform Mediation Act: To The Spoiled Go The Privileges, 85 MARQ. L. REV. 9, 18 (2001) (asserting that Amany mediation statutes . . . are poorly worded, unclear, incomplete or internally inconsistent@).

See generally Deason, supra note 45.

See, e.g., Getty, supra note 36, at 161.

Id., at 158-59

See 710 ILL. COMP. STAT. 35/1-35/13 (2004)

63 UMA ' 4.

mediator and other participants (such as experts) each hold their own privilege, limited to their

66 Otherwise, the Act=s privileges apply unless the relevant holders have waived their privileges, the information is otherwise subject to discovery or admissible, or the communication is exempt from the Act=s privilege.

Privileges have exemptions that embody a weighing of competing values: they permit disclosures deemed necessary for goals that transcend the justifications for keeping the protected communications confidential. The majority of the UMA exceptions are formulated as bright-line rules to take advantage of the predictability offered to parties by a specific list of exemptions. The Act authorizes disclosures for: a recorded agreement signed by all the parties, communications in mediations open to the public or covered by open record or meeting acts, threats of bodily injury or violence, certain communications connected to criminal activity, information relevant to a claim of professional misconduct or malpractice, and statements that would be introduced in certain abuse, neglect or abandonment proceedings.

The formulation of the UMA exceptions is one of the drafting compromises that centered on the appropriate relationship between mediation and litigation. The drafting committees

64 UMA ' 4(b)(1).

65 UMA ' 4(b)(2), (3).

66 UMA ' 3(c).

67 UMA '' 4(a), (c), 5(a). In addition, persons are precluded from asserting a privilege if they have prejudiced another person in the mediation by disclosing a mediation communication or if they have used a mediation to plan, attempt, or commit a crime or conceal an ongoing crime. Id. ' 5(b), (c).

68 UMA ' 6 (a)(1)-(7).

70 Although this provision would have covered unforeseen or exceptional circumstances and guided judges in exercising their discretion, representatives of the mediator community opposed it strongly on the ground that it would stimulate litigation.

In the end, the general exception to prevent injustice through the judicial process was not included in the uniform act.

Some case-by-case balancing to determine exceptions remains in the Act, but it is confined to two instances where a bright line rule is unworkableBcriminal proceedings and proceedings to enforce or void an agreement reached in mediation. In these settings, mediation communications may be disclosed if a judge determines that the need for the evidence

69 Several statutes provide examples of a balancing approach to determine when exceptions are appropriate. See, e.g., Administrative Dispute Resolution Act, 5 U.S.C. ' 574(a)(4)(A) (1998) (prohibiting disclosures unless a court determines disclosure is necessary to prevent Amanifest injustice@)

This provision first appeared in the UMA March 1999 Draft ' 3(d).

See Hughes, supra note 58, at 56 (describing fear that balancing test Awould open the floodgates of litigation as each opportunistic lawyer attempted to take advantage of the provision to pierce the sanctity of the mediation process@).

72 Cf. id., at 63 (reporting that Athe mediation community distrusted the court=s ability to fairly and consistently interpret . . . exceptions [for contractual misconduct]@).

Asubstantially outweighs the interest in protecting confidentiality.@ 73 The Act protects confidentiality during this decision process by mandating an in camera hearing and it places the burden of meeting the standard for disclosure on the proponent of evidence to be introduced.

Despite the uncertainty associated with a balancing approach, judicial input and case-by¬case decisions are advisable in criminal cases and contract proceedings on a mediated agreement. In criminal proceedings, the stakes associated with the availability of evidence are high and, depending on the circumstances, excluding evidence may implicate the defendant=s constitutional rights. In proceedings to enforce or void a mediated agreement, neither permitting disclosure nor maintaining confidentiality is appropriate for every case. Without an exception to the privilege, a party would be unable to present evidence of duress or fraud that occurred during a mediation. Yet a bright-line automatic exception that would allow disclosure of mediation communications to support any claimed contract defense could be used too easily with unjustified allegations to undermine confidentiality. Given the undesirable outcomes that can flow from either of these blanket approaches to disclosure, a judicial determination for individual cases is the best option to resolve the competing values at stake.

73 UMA ' 6(b).

74 Id.

75 See Ellen E. Deason, Enforcing Mediated Settlement Agreements: Contract Law Collides with Confidentiality, 35 U.C. DAVIS L. REV. 33, 89 (2001).

76 See, e.g., Olam v. Cong. Mortgage Co., 68 F. Supp. 2d 1110 (N.D. Cal. 1999) (admitting mediator=s testimony on claim of duress after in camera hearing).

77 See, e.g., Hughes, supra note 58, at 64-68.

conflicting values associated with adjudication and mediation. In two instances exceptions to the privilege that allow disclosures do not apply to mediators: the mediator may not be compelled to provide evidence of a mediation communications (1) in connection with a complaint of professional misconduct filed against a party, party representative, or nonparty participant or (2) in a proceeding to enforce or void a contract reached in mediation.

79 At the same time, however, these restrictions could limit courts= ability to exercise their traditional equitable powers to void an unfair contract or to sanction misconduct, relegating judicial decisionmaking to a less effective role in ensuring a fair agreement. In my view, this provision goes too far in handicapping the role of the adjudication system.

This special treatment for mediators also reveals conflicts among mediation values. The Act=s policy decision to prohibit mediator testimony on contract defenses and misconduct allegations tends to elevate mediator neutrality over the importance of the integrity of the process and party self-determination. As the only neutral observer, a mediator=s testimony may be crucial to determining the strength of claims about what occurred during a mediation.

78 UMA ' 6(c). Note that the mediator can be compelled to testify if misconduct allegations are directed at his role in the mediation.

See supra text accompanying note 47.

See also Hughes, supra note 58, at 66 (criticizing restrictions on mediator testimony as Aprotectionism on behalf of mediators@).

81 See, e.g., Ramirez v. Decoster, 142 F. Supp. 2d 104,113 (D. Me. 2001) (recognizing the mediator as Athe most neutral and dispassionate observer of what was said and done@)

adopted by individual nations as part of their domestic law. This goal was advanced in the United States in 2003, when the Model LawBwith a key additionBbecame an amendment to the UMA.

95 This limitation in scope reduced the need for difficult choices between competing values expressed in adjudication and conciliation systems of different countries. The Model Law has the potential, however, to foster a more comprehensive harmonization of mediation law than its stated coverage. The text is designed to provide a model that could be extended to non-commercial international disputes or adapted to govern domestic conciliations by States that do not yet have such law.

Michael B. Getty, who served as a U.S. advisor to the UNCITRAL drafting committee under the auspices of the State Department. Id. at 176.

92 UMA ' 11.

93 Model Law Art. 1(3) defines conciliation as a process Awhereby parties request a third person or persons (Athe conciliator@) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relation to a contractual or other legal relationship. The conciliator does not have the authority to impose upon the parties a solution to the dispute.@ The Model Law is intended to apply to mediation and other dispute resolution processes that meet this description without regard to their label. The definition expresses Aa broad notion of a voluntary process controlled by the parties and conducted with the assistance of a neutral third person or persons.@ Draft Guide to Enactment and Use of the UNCITRAL Model Law on International Commercial Conciliation, U.N. Doc. A/CN. 9/514, & 30 (2002) (Draft Guide). It is meant to be inclusive of procedural styles and variations in techniques. Id. For example, the Model Law is meant to apply whether the neutral is facilitating dialogue or also making substantive proposals for possible settlements. Id. & 11

Model Law Art. 1 (1).

van Ginkel, supra note 88, at 12.

In Art. 1 n. 1, the Model Law offers guidance for States that wish to adopt it to govern their

Thus to avoid conflicts of law, the Model Law needed to be coordinated with the UMA.

The drafters who adapted the Model Law for adoption by the states hoped to develop a text that would be compatible with the UMA, but would also maintain as much as possible the identity of the Model Law in order to promote international harmonization and help foreign parties feel comfortable mediating in the United States. After an attempt at modifying the Model Law to fit within the style of the UMA, the drafters wisely abandoned this effort and decided to retain the Model Law=s exact form and language. The UMA incorporates the Model LawBintactBas an amendment to govern international commercial mediations.

111

creating a structure that extends the values recognized in those provisions into the international context unless the parties decide otherwise. As with the limited scope of the Model Law and its emphasis on autonomy, this Adouble-grafting@ approach helps minimize the need to choose among competing values. Adding the Model Law without alteration tolerates many differences between the texts that do not pose real conflicts, while further adding the UMA's privilege avoids what would be otherwise be significant inconsistencies in the protections against disclosure.

Because both the UMA and the Model Law offer opportunities for parties to alter their terms by agreement, parties can select the combination of provisions best suited for their circumstances. The UMA amendment offers a Aroadmap@ for parties that coordinates the opt-ins and -outs in both texts. As with any mediation under the UMA, the parties may agree that all or part of an international commercial mediation is not privileged,

110 UMA ' 11.

111 UMA ' 11(c).

112 UMA ' 3(c).

Alternatively, under the provisions of the Model Law, parties to an international commercial mediation may agree that the Model Law does not apply.

Absent any agreement, the hybrid UMA-Model Law governs when a mediation is both international and commercial.

By making international conciliation under the UNCITRAL Model Law compatible with U.S. legal procedures, the UMA provides a vehicle for resolving international disputes that foreign parties seek to avoid litigating in U.S. courts. In addition to its role in defining the interface between mediation and adjudication in the United States, the UMA now creates a new relationship between U.S. and international dispute resolution systems more generally. It will allow mediation to join arbitration as an option for resolving commercial disputes when the distinctive characteristics of U. S. litigation are unattractive to foreign partners.

V. ENFORCING MEDIATED AGREEMENTS

With legal structures developed to support the use of mediation by protecting the confidentiality of mediation communications, the question becomes whether additional procedural measures are needed. An issue that has already been raised and will likely receive continuing attention is the desirability of a mechanism for enforcing agreements reached in mediation.

See UMA ' 11(c).

Model Law Art. 1 (7).

UMA ' 11(d).

These comments focus on the process of enforcing agreements that result from the mediation process and do not consider enforcement of agreements to mediate. There are few reported cases that suggest difficulties with pre-dispute mediation agreements, although perhaps problems will grow with increased use. See, e.g., M.L.B. Kaye Int=l Realty, Inc. v. Prudential Real Estate Affiliates, 2004 WL 385034, *3-4 (S.D.N.Y. 2004) (enforcing agreement to mediate as first step of disputing process)

mediation, but also for its relationship with adjudication and, in addition, with arbitration.

A. The Enforcement SettingBAdjudication and Arbitration

117 In contrast, enforcement poses formidable challenges in international litigation. The United States is not a party to any treaties on recognizing foreign judgments, either bilateral or regional.

120 The primary international forum for attempts to resolve recognition and enforcement problems has been the Hague Conference on Private International Law, which sponsored negotiations of a convention on international jurisdiction and recognition of judgments. Those negotiations produced a draft in 2001,

v. Hooters-Toledo, 295 F. Supp. 2d 774, 781-84 (N.D. Ohio 2003) (holding unconscionable mediation agreement that, among other terms, required employee to file claim within 10 days, mediate without representation, and choose a mediator from a list compiled by the employer).

U.S. CONST. art. IV, ' 1.

See generally WILLIAM W. PARK, INTERNATIONAL FORUM SELECTION 46-49 (1995).

See Linda Silberman, Comparative Jurisdiction in the International Context: Will the Proposed Hague Judgments Convention be Stalled?, 52 DEPAUL L. REV. 319, 321-22 (2002). But see Mark D. Rosen, Exporting the Constitution, 53 Emory L.J. 171 (2004) (analyzing refusal of U.S. courts to enforce foreign judgments based on foreign laws that would be unconstitutional under the First Amendment).

120 Id. at 319-20 (explaining that the reach of U.S. courts= jurisdiction is controversial internationally because U.S. courts impose disfavored procedures such as juries, discovery, class actions, contingent fees and apply substantive U.S. law considered pro-plaintiff by other nations).

121 See Summary of the Outcome of the Discussion in Commission II of the First Part of the Diplomatic Conference 6-20 June 2001, available at http://www.hcch.net/doc/jdgm2001draft_e.doc

w 123 There and the lack of adequate enforcement mechanisms remains a major problem in international adjudication.

Arbitration also offers a straightforward mechanism for enforcement of U.S. domestic awards by using the adjudication system. Under the Federal Arbitration Act (AFAA@),

Unless the court vacates, modifies or corrects the award on narrow statutory grounds, it must confirm it, which in effect makes the award a judgment of the court and enforceable as such.

See Hague Conference on Private International Law, Some Reflections on the Present State of

Negotiations on the Judgments Project in the Context of the Future Work Programme of the Conference, Preliminary Doc. No. 16 (Feb. 2002), available at . Among the topics identified as areas in which Aa lack of consensus creates obstacles to progress@ are the internet and e-commerce, activity based jurisdiction, consumer and employment contracts, and intellectual property rights. Id. & 5. For a summary of the position of the U.S. Government, see Testimony of Jeffrey D. Kovar, Assistant Legal Adviser for Private International Law, U.S. Dept. of State, Before the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary of the House of Representatives (June 29, 2000), available at

At this point the focus is on a convention that would provide for enforcement of judgments rendered by the courts of a nation that have been chosen for the dispute by an agreement of the parties Ato the exclusion of the jurisdiction of any other courts.@ Hague Conference on Private International Law, Draft on Exclusive Choice of Court Agreements, Work.Doc. No 110E Revised (May 2004), available at

http://www.hcch.net/doc/jdgm_wd110_e.pdf.

See, e.g., Arthur T. von Mehren, Theory and Practice of Adjudicatory Authority in Private International Law: A Comparative Study of the Doctrine, Policies and Practices of Common-and Civil Law Systems, 295 RECUEIL DES COURS 9, 424 (2002) (AUniversal instruments harmonizing broad areas of the law of jurisdiction and enforcement of judgments do not have a bright future.@).

9 U.S.C. ' 1 (2000).

Id. at ' 9. A party has one year from the date the award is rendered to initiate the confirmation process. Id.

Under the FAA, a court may vacate an award obtained by corruption or fraud, or when the arbitrators exhibited partiality or corruption, were guilty of misconduct in conducting the hearing, or exceeded their powers. Id. at ' 10. In addition, Amanifest disregard of the law@ is a judicially-created ground that courts describe inconsistently but uniformly apply stringently. See, e.g., Brabham v. A.G. Edwards & Sons, Inc., __ F.3d __ (5th Cir. 2004), 2004 U.S. App. LEXIS 13365 at *5-*9

Unlike adjudication, arbitration also offers an enforcement mechanism in international disputes. Because it is a private process, it sidesteps sensitive issues of sovereignty that can be problematic with adjudication. If a party seeks to enforce an award, a court need not endorse a decision rendered by a foreign sovereign=s legal system, but merely recognize the validity of a privately-agreed process. Over one hundred thirty countries, including the United States, have agreed to procedures for recognition in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, more commonly known as the New York Convention.

129 The Convention provides limits on this enforcement obligation by permitting courts to refuse to enforce awards (1) if they fall within a list of limited defenses based on procedural infirmities or (2) if enforcement would be contrary to the public policy of the enforcing country.

Group, Inc., 343 F.3d 57, 64-66 (2d Cir. 2003)

128 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 [hereinafter New York Convention]. In the United States, the Convention is codified as Chapter 2 of the Federal Arbitration Act, 9 U.S.C. '' 201-208, which governs international commercial arbitration. Id. ' 202.

Id. Art. III(1).

The procedural defenses include an invalid agreement to arbitrate, lack of notice or an opportunity to present one=s case, an award that exceeds the scope of power delegated to the arbitrators, an irregularly constituted panel or procedures, or an award vacated in the country that was the situs of the arbitration. New York Convention, supra note 128, Art. V(1)(a)-(e). A court may also refuse to enforce an award by reason of the law of the enforcing country if the dispute is not arbitrable or enforcement would be contrary to public policy. Id. Art. V(2).

n 132 and flexible

134 The Convention generally functions to minimize variation in enforcement of arbitral awards, which is a major reason why arbitration is attractive for international commercial disputes. This degree of predictability is particularly important for citizens of countries, like the United States, that lack treaties establishing reliable mechanisms for enforcing court judgments.

B. Mediated Agreements

There are no comparable special enforcement mechanisms for agreements parties reach

131 See supra text accompanying note 129. The uncertainty created by this reference to domestic procedural law is illustrated by recent U.S. decisions refusing to confirm foreign awards on grounds of forum non conveniens, Monegasque de Reassurances SAM v. Nak Naftogaz of Ukraine, 158 F. Supp. 2d 377 (S.D.N.Y. 2001), af=d, 311 F.3d 488 (2002), and lack of minimum contacts for personal jurisdiction, Glencore Grain Rotterdam BV v. Shivanth Rai Harnarain, 284 F.3d 1114 (9th Cir. 2002). See Pelagria Ivanova, Forum non Conveniens and Personal Jurisdiction: Procedural Limitations on the Enforcement of Foreign Arbitral Awards Under the New York Convention, 83 B.U. L. REV. 899 (2003).

132 One prominent example of the uncertainty created by unspecified standards is the provision permitting courts to refuse to enforce an award that has been vacated in the country where it was rendered. Art. V (1)(e). The absence of detail in the Convention has generated multiple interpretations that make enforceability of a vacated award vary depending on the forum where enforcement is sought. See, e.g., Christopher R. Drahozal, Enforcing Vacated International Arbitration Awards: An Economic Approach, 11 AM. REV. INT=L ARB. 451 (2000), and literature cited therein.

133 The Indian Supreme Court recently set aside an arbitral award for legal error, which it defined as a matter of public policy. Oil & Natural Gas Corp., Ltd. v. SAW Pipes Ltd., Civil Appeal No. 7419 of 2001 at JT 2003 (4) SC 171. See Nadia Darwazeh & Rita F. Linnane, Set -Aside and Enforcement Proceedings: The 1996 Indian Arbitration Act Under Threat?, 7 INT=L ARB. L. REV. 81 (2004) (arguing that the court conducted a review of the merits of the case by making error of law a new ground to set aside an award).

134 The 1985 Model Law on International Commercial Arbitration, available at http://www.uncitral.org/en-index.htm, has been enacted into law, or served as the basis for domestic law, in 48 countries and 5 U.S. states. See UNCITRAL, Status of Conventions and Model Laws (updated Apr. 16, 2004), available at http://www.uncitral.org/en-index.htm.

136 Because enforcement often takes the form of separate time¬consuming contract litigation, an expedited method could contribute to mediation=s attractiveness as a reliable, speedy, and relatively low-cost process.

When a federal court suit is settled, enforcement of the agreement Arequires its own basis for jurisdiction,@ 137 f

if the parties are not diverse they usually must rely on ancillary jurisdiction. To do so, they should have their agreement approved and entered as a consent decree, have it incorporated into the dismissal order, or have the court retain jurisdiction in the dismissal order.

135 See, e.g., Craig A McEwen & Richard J. Maiman, Small Claims Mediation in Maine: An Empirical Assessment, 33 ME. L. REV. 237, 237 (1981) (reporting that compliance with mediated agreements was higher than with adjudicated decisions).

136 See Coben, supra note 46, at 65 n.1 (stating that litigation over mediation is increasing and most often involves disputes about enforcement of mediated settlements).

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 378 (1994).

Bd. of Trustees of Hotel and Restaurant Employees Local 25 v. Madison Hotel, Inc., 97 F.3d 1479 (D.C. Cir. 1996) (ruling that federal courts have jurisdiction to enforce settlement agreements when enforcement raises issues of federal law).

139 Kokkonen at 381-82

140 Federal courts tend to apply state contract law to enforcement issues, but sometimes they emphasize the settlement of a federal right and use federal common law. Discrepancies in the cases make predicting the applicable law for settlement enforcement in federal court difficult. See Deason, supra note 43, at 298-301

141 Kokkonen at 381-82. Unfortunately, the Kokkonen opinion created confusion among lower

When a mediated case was originally filed in state court, settlement enforcement can take a number of paths. For example, in Louisiana, a party may file a motion to enforce a settlement rather than a new suit.

146 Some states expedite enforcement by treating certain mediated settlementsBtypically those of international commercial disputesBas arbitral awards enforceable in summary proceedings.

courts over what steps are necessary to incorporate a settlement or retain enforcement jurisdiction. See Parness & Walker, supra note 139, at 38-43. Also, parties may hesitate to enter a consent decree because it will be on the public record unless secrecy is necessary to protect trade secrets or for another compelling reason. See, e.g., Jessup v. Luther, 277 F.3d 926, 929 (7th Cir. 2002). Alternatively, Fed. R. Civ. P. 60(b)(6) may permit federal district courts to reopen dismissed suits for breach of a settlement agreement, but cases on this authority are split. See Parness & Walker, supra, at 45-47.

Banque de Depots v. Bozel Mineracao E Ferroligas, 728 So. 2d 533, 538 (La. App. 1999).

See, e.g., Davis v. Wickham, 917 S.W.2d 416, 416 (Tex. App. 1996)

144 See, e.g., KAN. STAT. ANN. ' 5-514 (2000) (mediated settlement agreement can become an order of the court if parties present it as a stipulation and the court approves it).

145 See, e.g., N.D. CENT. CODE ' 14-09.1-07 (2003) (mediated agreement in contested child proceedings). In some states court approval of agreements reached in court-annexed mediation programs is a prerequisite to enforcement. See, e.g., COLO. REV. STAT. ' 13-22-308

146 See, e.g., Sheng v. Sharkey Lab., 117 F.3d 1081, 1083-84 (8th Cir. 1997)

147 See, e.g., CAL. CIV. P. CODE ' 1297.401 (treating conciliated settlement of international commercial dispute as a final arbitral award when agreement is written and signed by the conciliator and the parties or their representatives)

Enforcement is expedited in other contexts by treating violations of a conciliated agreement as a

difficult to prevail in an enforcement proceeding when the contract is a mediated agreement. They require formalities, such as a writing, mediator or attorney signatures, or a statement that the parties intend the settlement to be enforceable, which become enforcement hurdles.

Enforcement can also be impeded in practical terms by measures designed to protect mediation confidentiality when they make crucial evidence inadmissible in a contract action to enforce or void a settlement agreement.

Scholarly commentators have raised worries that mediation values may suffer in court enforcement proceedings. Based on a review of enforcement cases, James J. Alfini and

violation of the underlying statute. See, e.g.,HAW. REV. STAT. ' 515-18 (treating violator of civil rights agreement as having engaged in discriminatory practice)

Other states have strengthened the enforceability of certain mediated settlements less directly by awarding attorney=s fees to the enforcing party, GA. CODE ANN. ' 45-19-39(c) (covering collective bargaining mediations)

148 See Deason, supra note 75, at 52-55. In addition, some states have a rescission period that permits a party to avoid enforcement altogether. See Thompson, supra note 19, at 539 n.170. Enforcement may also be subject to special defenses applicable only to mediated agreements. See, e.g., MINN STAT. ANN. '' 572.35, 572.36 (making mediator=s malfeasance a defense to an enforcement action)

149 See, e.g., Eisendrath v. Super. Ct., 134 Cal. Rptr. 2d 716, 720 (Cal. Ct. App. 2003)

Katherine G. McCabe noted that courts were generally sensitive to mediation principles, but expressed concerns about the ability of the judicial process to discern and correct Atroubling issues relating to mediation=s core values of party self-determination, voluntariness, and mediator impartiality@ that are raised by allegations of settlement coercion.

Few scholars have explicitly analyzed using alternatives to contract principles for the enforcement of mediated agreements. Early on, Robert P. Burns urged the use of contract law to enforce settlement agreements, citing its flexibility to protect mediation values.

Others have proposed modifying contract law outright in order to safeguard mediation=s values in a litigation setting. Nancy A. Welsh advocated several special rules for enforcing mediated agreements, including an expanded coercion defense and a cooling-off period that would allow rescission immediately following a mediation.

150 James J. Alfini & Catherine G. McCabe, Mediating in the Shadow of the Courts: A Survey of the Emerging Case Law, 54 ARK L. REV. 171, 205 (2001).

151 Id. at 206.

152 Robert P. Burns, The Enforceability of Mediated Agreements: An Essay on Legitimation and Process Integrity, 2 OHIO ST. J. ON DISP. RESOL. 93, 115 (1986) (ANo persuasive general argument exists for giving the mediated nature of an agreement necessary legal consequences. Contract law provides a flexible set of considerations relevant to the issue of enforceability that more adequately structure deliberation about that issue than could any single general rule.@).

Thompson, supra note 19, at 562-63.

Welsh, supra note 8, at 82-92.

modifications are necessary to protect self-determination in mediation, which she distinguishes from the objective manifestations of assent that are the focus of contract analysis.

In addition, without considering the possibility of summary procedures, I have argued elsewhere for altering contract standards to accommodate confidentiality values in the mediation process. Mediated agreements should be subject to a statute of frauds in enforcement proceedings and mediation communications should be admitted as evidence of contract defenses only after a threshold review establishes that disclosure is needed and justified in the particular case.

If enacted, an enforcement mechanism for mediated agreements would presumably provide an alternative to a full application of contract principles and eliminate any need for a separate lawsuit. The UMA Drafting Committees sought a way to extend enforcement beyond existing court procedures for retaining jurisdiction

158 In their final draft, enforcement took the form of a

registration provision that would allow the parties and their lawyers to move jointly for a court to

155 Id. at 80. See also Steven Weller, Court Enforcement of Mediated Agreements: Should Contract Law be Applied?, 31 JUDGES= J., Winter 1992, at 13, 39 (suggesting that because a mediator=s power distinguishes mediation from arms-length settlement, judges should rescind agreements if there is a disparity in expertise between the parties and the weaker party misunderstood the agreement or its consequences).

See Deason, supra note 75.

See supra text accompanying note 137.

These approaches included treating a mediated agreement as an arbitral award by incorporating mediation into the enforcement provision of the Revised Uniform Arbitration Act, see, e.g., UMA April 1999 draft ' 5, and several versions of a stipulated judgment model, see, e.g.,UMA Jan. 2000 draft ' 10

http://www.law.upenn.edu/bll/ulc/ulc.htm#umediat.

159 The Committees recommended against adoption of this provision, however,

concluding that by the time the enforcement provision was Acircumscribed sufficiently to protect rights, the section would not add significantly to the law related to mediation.@ 160 NCCUSL followed the Committees= recommendation and the UMA, as adopted, does not provide procedures for expedited enforcement of mediated agreements. Enforcement was similarly considered in the UNCITRAL drafting process, but in the end the Model Law contains only a provision that permits an enacting State to insert its own enforcement procedures.

Views are deeply divided on the issue of summary or expedited enforcement of mediated agreements. There are important values at stake on each side, and any enforcement procedure, including the status quo, compromises some of those values. On one hand, summary enforcement could support the growth of mediation. From the point of view of many international transactional lawyers, finality is the crux of the matter: AWhat=s the point of mediation if one has to go and litigate to get the agreement enforced?@ For these and other lawyers, standardizing and streamlining the enforcement process would remove a practical

159 UMA June 5, 2001 annual meeting draft ' 11 & reporters= notes. A summary enforcement procedure was also proposed in Florida in 2002 as part of the Family Court Reform Bill, Senate Bill 1226 ' 14. The legislation was not enacted, but would have requested the Florida Supreme Court to establish a procedure for filing and approving settlement agreements. See Paul Dayton Johnson, Jr., Confidentiality in Mediation: What Can Florida Glean from the Uniform Mediation Act, FLA. ST. U. L. REV. 487, 497 (2003).

UMA June 5, 2001 annual meeting draft ' 11 reporters= notes.

Model Law Art. 15.

See Sekolec & Getty, supra note 87, at 193

barrier and encourage mediation. Summary enforcement could also make it easier to maintain the confidentiality of mediation communications by reducing the need for evidence pertaining to the validity of agreements in contract actions. Ironically, while an enforcement mechanism involving courts would further integrate mediation and adjudication, it would also disentangle mediated agreements from contract litigation.

163 Many forms of summary enforcement would bypass any consideration of contract defenses and thus eliminate the application of those standards in court. This could enable sophisticated parties to take advantage of weak or uninformed parties and in this way threaten mediation=s core principle of party self-determination. If this happens, summary enforcement procedures applied in the adjudication system could produce results that are antithetical to mediation values.

Concern about enforcing agreements that are inconsistent with informed self¬determination is complicated, however, by potential unfairness in the converse situation. When a party is avoiding compliance with a fair agreement, summary enforcement would support, not undermine, the self-determination of the parties who freely entered the agreement. In this context, extensive proceedings that are protective of unsophisticated parties may have the unintended consequence of impairing self-determination if they deter enforcement. Which form of impairment is more important to avoid?

163 But see Thompson, supra note 19, at 527 (distinguishing contract disputes from mediated

settlements)

from the focus in contract law on objective manifestations showing an agreement reached with free will).

164 In social science terms, the question is whether to design a test to best avoid false positive or false negative results. A legal example of avoiding false positives is the Abeyond a reasonable doubt@ burden of proof for criminal convictions. We would rather err on the side of freeing the guilty than convicting the innocent.

enforcing an agreement that was not a product of self-determination than with failing to enforce one that does reflect self-determination. In the former situation, enforcement means the aggrieved party would have no further avenue for recourse, whereas in the latter, the aggrieved party would have the option of litigating the dispute. Even if finality argues against summary enforcement, however, any form of enforcement, summary or not, unfortunately carries a risk of impairing self-determination in one of these situations.

Perhaps effective means for protecting weak parties can be found that would eliminate this dilemma concerning self-determination. Proposals have been made to require that the parties= agreement include a statement that they intend summary enforcement,

167 In addition, mediations that cause some of the greatest concernsBthose where a strong party is paired with an unrepresented weaker partyBwould be ineligible for summary enforcement.

Another approach would be to abandon any attempt at Aone size fits all@ enforcement and create a mechanism limited to a class of mediations that are least prone to abuse. For example, a

165 See, e.g., UMA June 5, 2001 annual meeting draft ' 11(a)(4). Note that the proposal to require a special statement affirming the parties= desire for enforcement would apply only to summary enforcement, not to enforcement via a contract action. Requirements such as this that run counter community expectations create uncertainty and leave otherwise valid agreements unenforced if applied to all enforcement. See James R. Coben and Peter N. Thompson, The Haghighi Trilogy and the Minnesota Civil Mediation Act: Exposing a Phantom Menace Casting a Pall Over the Development of ADR in Minnesota, 20 HAMLINE J. PUB. L. & POL=Y 299, 324 (1999).

UMA June 5, 2001 annual meeting draft ' 11(a)(3).

See generally Craig A McEwen, Nancy H. Rogers, & Richard J. Maiman, Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317 (1995).

U. S. enforcement provision for mediated agreements could be limited to the international commercial setting. This is a context where fairness is less of a problem because parties are likely to be relatively sophisticated and represented by counsel. Because of the shortcomings of international enforcement of judicial decisions, it is also where parties most need mediation enforcement mechanisms. A compromise on special rules for enforcing this limited class of mediations would take advantage of this fortuitous intersection between the greatest need for enforcement and the least problematic setting for enforcement. Taking a page from the limited scope of the Model Law, it could also blunt the effects of difficult decisions on mediation and adjudication values.

168 This is a risk that was accepted, however, in amending the UMA to provide confidentiality rules limited to international commercial conciliations and it might be acceptable in the context of summary enforcement as well. In addition, the risk of surprise could be greatly reduced with safeguards that support awareness and self-determination, such as requiring a lawyer.

Should it make a difference if the parties have been required to participate in mediation or ordered to do so by a court? Perhaps it is reasonable for parties to expect that the court will also provide procedures to minimize the burden of enforcement litigation that can follow from its mandate. But is seems equally reasonable for parties to expect that the court will provide a fair procedure and a mechanism for correcting the situation if the mediation does not live up to this

168 See van Ginkel supra note 88, at 12, 17-18.

promise.

169 A shortcoming to this procedure, however, is that entering into an agreement to arbitrate in advance of mediation is a risky course for a party that wants only to mediate. If the mediation does not lead to a settlement, the other party could enforce the agreement to arbitrate under the FAA or the New York Convention.

An alternative suggestion is to mediate without an arbitration agreement and then convert the mediated agreement to an arbitral award to make it enforceable. There are some countries that provide this mechanism domestically. In Argentina, for example, parties can conditionally confer the powers of an arbitrator on their mediator. If they are successful in mediation, the mediator as arbitrator then converts their agreement into an award enforceable in Argentine courts.

169 Some states provide this procedure by statute for international commercial mediations. See, e.g., FLA. STAT. ' 684.10

9 U.S.C. ' 4 (2000).

The American Bar Association=s Task Force on Electronic Commerce and Alternative Dispute Resolution in Cooperation with the Shidler Center for Law, Commerce and Technology, University of Washington School of Law, Addressing Disputes in Electronic Commerce: Final Recommendations and Report, 58 Bus. Law. 415, 456 (2002).

172 Draft Guide to Enactment, supra note 93, at & 79 (citing Arbitration Law of the People=s Republic of China, Art. 51).

Convention.

173

In the absence of procedures for summary enforcement of a mediated agreement, adapting arbitral enforcement is a pragmatic response. Unfortunately, an enforcement mechanism designed to provide very limited review for neutral decisions may fail to take into account infirmities in a bargaining setting that could make an agreed solution unfair. Both awards and agreements draw their authority from the consent of the parties, but with an important difference. With an award the parties consent to a process in which a neutral intervenes to make a decision, whereas with an agreement they consent directly to the outcome. Some courts have used language that captures the significance of this distinction for the enforcement of agreements:

[W]e recognize that settlement of claims is favored in the law, . . . and that mediated settlement as a means to resolve disputes should be encouraged and afforded great deference . . . [but] given the consensual nature of any settlement, a court cannot compel compliance with terms not agreed upon or expressed by the parties in the settlement agreement.

The FAA arbitration enforcement provisions provide minimal review of a neutral=s decision under standards that were not designed for establishing the bona fides of an alleged

173 There is some uncertainty as to whether courts would treat a converted mediation agreement as governed by the New York Convention. The Convention applies to awards Aarising out of differences between persons, whether physical or legal.@ Art. 1(1). When the parties reach a mediated agreement before invoking arbitration, there is then arguably no dispute and no Adifferences@ to give rise to the arbitration. Another possible interpretation of the Convention, however, would avoid this barrier to enforcement. The phrase Aarising out of differences@ allows some flexibility in how directly the differences must lead to the award and could support enforcing an award arising out of differences that were resolved via mediation. This interpretation would broaden the application of enforcement provisions that were tailored for arbitration, but would have the advantage of respecting the self¬determination of the parties who choose this approach.

174 Chappell v. Roth, 548 S.E.2d 499, 500 (N.C. 2001), reh =g denied, 553 S.E.2d 36 (N.C. 2001)

see also Riner v. Newbraugh, 563 S.E.2d 802,809-10 (W. Va. 2002) (limiting enforcement to agreements

Moreover, under international standards, the discrepancy is potentially even greater between efficiency via summary court enforcement and fairness as defined in terms of mediation values.

Summary enforcement of mediated agreements based on an arbitration model could also have undesirable consequences for adjudication values. In confirming arbitration awards, courts have shown great tolerance for enforcing measures they have had no role in crafting. There are tensions in this role, however, that have been exacerbated by extending arbitration to statutory claims. Some of the stress fractures are indicated by proposals for expanded judicial review of the legal basis for awards

Enforcing mediated agreements could further call courts= role into question. While arbitration of statutory issues can be justified as the application of law in a different forum, mediation agreements may bear no resemblance at all to what a court would decide. Self¬determination allows parties to consider needs and interests that do not have currency in the world of legally-cognizable categories. The corollary is that they may ignore publicly-endorsed

that are Afairly made and not in contravention of some law or public policy@).

175 The FAA does permit a court to vacate an award Aprocured by corruption, fraud, or undue means.@ 9 U.S.C. ' 210(a)(1). Contract law, however, invalidates agreements on additional grounds, such as duress and mistake, that are not a concern in a decisional process.

176 Under the U.S. enabling legislation, the New York Convention dictates the exclusive grounds for refusing to confirm an international award. 9 U.S.C. ' 207 (AThe court shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in said Convention.@)

177 See, e.g., Sarah Rudolph Cole, Managerial Litigants? The Overlooked Problem of Party Autonomy in Dispute Resolution, 51 HASTINGS L.J. 1199, 1205-06 (2000).

178 See, e.g., Sarah Rudolph Cole, Incentives and Arbitration: The Case Against Enforcement of Executory Arbitration Agreements Between Employers and Employees, 64 UMKC L. REV. 449 (1996).

If arbitration-like enforcement procedures are applied to mediated agreements between parties who have stepped outside Athe shadow of the law,@ there may be stark questions about the appropriate enforcement role of the courts.

Many questions remain. Does the incidence of enforcement difficulties justify a summary procedure? Despite indications that much of the mediation-related litigation centers on enforcing mediated agreements, how do the frequency of such cases compare to the frequency of mediation? Would parties elect an expedited procedure often enough to make a difference? Even if widely chosen, an expedited procedure would not always avoid litigation, for some parties will argue that their acceptance of the procedure was not informed or fair.

Would summary enforcement of mediated agreements make sense in the broader context of settlement? It is not clear that the participation of a mediator justifies enforcing a mediated settlement in a different manner than a negotiated settlement. Perhaps both processes should be eligible for summary enforcement if the parties so desire. If requiring the participation of a lawyer would safeguard self-determination in mediation, could it also do so in negotiation?

What effect would summary enforcement have on the role of the mediator? Perhaps she would feel a greater responsibility to ensure a just agreement if it were subject to summary enforcement. Should the role of the mediator have an influence over the acceptability of

summary enforcement? As part of debate over the role of the mediator in ensuring justice, scholars have challenged the classically-defined concept of mediator Aneutrality.@ 180 Would movement toward a more interventionist role for mediators make summary enforcement of agreements more acceptable?

See, e.g., Jacqueline M. Nolan-Haley, Court Mediation and the Search for Justice Through Law, 74 Wash. U. L.Q. 47, 49 (1996) (AThe promise of mediation is different: Justice is derived, not through the operation of law, but through autonomy and self-determination.@).

See, e.g., Coben, supra note 46 & sources discussed therein.

My goal here has been to stimulate debate on the question of summary enforcement. At our present state of knowledge about problems enforcing mediated agreements, I am unconvinced that mediation necessarily needs to offer the finality associated with arbitration. I fear that incorporating such finality through summary enforcement procedures might stretch the capabilities of mediation in much the same way that extending arbitration to disputes based on statutory rights has stretched arbitration beyond its comfort zone. But perhaps procedures for summary enforcement could be developed that would not impair the characteristic attributes of mediation.

CONCLUSION

The world of courts and litigation is thoroughly intertwined with the practice of mediation, both as a source of cases and as the ultimate forum for resolving disputes that arise out of mediation. Mediation is integrated into the practice of law as a means of settling litigation and, somewhat, as an independent process. All three procedures I have discussedBthe recent domestic uniform law, international model law, and potential enforcement mechanismBshare the goal of making mediation more attractive and effective both when used independently and in the court-connected context. This general goal, however, obscures the extent to which the UMA and the Model Law are the products of compromises among procedural values that characterize mediation and adjudication. Any development of summary enforcement procedures for mediated agreements would pose a new set of challenges for these values that should be assessed with care. Seeking to strengthen mediation by truncating the process of adjudicatory enforcement to a summary procedure could erode characteristics that help make mediation and adjudication valuable and effective.