Arbitration & Mediation

Negotiating Justice: Are Mediators Corrupting the Legal System?

By Victoria Pynchon

Check out Geoff Sharp's review of Harvard Law School Professor Peter Murray's article The Privatization of Civil Justice recently published in the summer issue of Judicature magazine.  

The bottom line? 

1. because mediators are people we must naturally place our own self-interest above that of the people we serve; and,
2. because insurance companies are ADR "repeat players," we mediators will naturally favor them because . . . you got it . . .we can't help but serve our own selfish economic interests.

(below:  the Harvard Law School diploma that will be earned Professor Murray's students before they go on to serve the justice needs of "the people" against the corporate interests we mediators are presumably serving) 

Granted, I haven't read the entire article because it is apparently in Professor Murray's economic self-interest to publish his condemnation of mediators in a journal we can't read without subscribing to it (yes, thanks, Professor, I'd love a .pdf of the article so I can share it with my readers).  

If I could induce the good Professor into a dialogue with the mediation community, I'd start with these questions:  

1. do you know that the non-repeat plaintiffs who you assume are victims of my bias  are represented by competent attorneys who are as much repeat players in litigation as are insurance carriers;
2. do you know that both repeat-player attorneys in the type of litigation your article concerns (personal injury and employment) choose the mediator who will assist them in negotiating settlement;
3. do you know that JAMS -- who you single out for opproprium -- is not in the personal injury  business, but rather provides mediators to well-heeled, repeat-player corporate disputants who cannot be shoe-horned into any easy victim-victimizer role;  
4. do you have any data suggesting that mediators can and do exercise such a great degree of systematic undue influence on personal injury and employment plaintiffs' attorneys that they voluntarily enter into settlement agreements that favor their opponent;
5. do you have any comparative data suggesting that the more well-heeled repeat player -- the dastardly insurance carriers -- will achieve more just results for their clients before a jury than they would have by negotiating a settlement agreement with the assistance of the (presumably dastardly) mediator; and, finally,
6. have you ever actually represented either half of this particular justice coin in litigation; tried any case to a jury; lost any case to a pre-trial ruling; or settled any case with the assistance of a mediator?

Full post as published by Settle It Now Negotiation Blog on September 15, 2008 (boomark / email).