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Prof. Murray Responds to Vickie Pynchon (Sort of).

By Christopher Annunziata

Over at Settle It Now, Professor Murray has obfuscated the issue responded to Vickie’s thoughtful commentary on his polemic, Privitization of Justice.

I’ll try to be frank without sounding like I’m making an ad hominem attack on the Professor.

Prof. Murray’s vague comment simply confirmed the belief that I had of him and his piece in the first place - his problem with mediation is not one of justice or due process (substantive or procedural).   It is ideological.   Murray’s comment that having mediation

provided by private professionals rather than public servants increases the likelihood of economic influences playing a larger role than they would in a purely public institution,

sounds like the beliefs of a old fashioned, 1960’s liberal who hasn’t met a problem the government can’t solve for us.  Or more accurately, he hasn’t met a problem that private enterprise can fix.  (As an aside, what happened to “Ask not what your country can do for you . . .“?)

It does not sound like he wants to reform the process.  Instead, he sounds like he wants to put it back into the hands of the people that drove litigants to seek alternative dispute resolution in the first place - the judicial system.

Why?

I can’t answer that question.

The point that I think Prof. Murray misses is that judicial review is wholly appropriate when a judge or a jury wrongly decides an issue of fact or law that affects the liberty or property rights of another; but it is not appropriate when parties freely enter into a negotiated agreement.

People should be free to make “bad” decisions.

What might seem “bad” to you is “fair” to me.  Who better to make that call -  the party herself or some government apparatchik?

Would he also suggest that non-facilitated settlement agreements be reviewed by the courts as well?  Pro se parties or parties represented by ineffective counsel may agree to enter into really “bad” agreements.  Who is providing “judicial oversight” of those agreements?

As for the “kind of insidious corruption that undermines the integrity of private dispute resolution”, i.e., mediators who might influence decisions in the hope of obtaining future business, mediators don’t “make” deals.  Sure, some mediators exert more “pressure” than others.  In the end, if the market learns that Jane or John Mediator exerts more “pressure” on plaintiffs than he or she does on defendants (or vice-versa), that will sort itself out.

Full post as published by CKA Mediation and Arbitration Services Blog on September 22, 2008 (boomark / email).