Proposal for Standard Explanation in Mediation

Building on my article, Courts Should Make Mediations Good Samaritans Not Frankensteins, this concise article proposes a method to increase the substantial benefits of court-connected mediation while reducing the risks of coercion. If courts require parties to mediate – especially if parties pay market rates for mediation – courts have a responsibility for designing mediation policies so that parties get as good service as reasonably possible. This article proposes that courts require that standard explanations be provided to parties about the mediation process and their rights in mediation, and it offers model language that can be adapted to particular circumstances. The language and process for administering the explanation should be developed through a dispute system design process designed to improve preparation for mediation. This article identifies potential obstacles to effective implementation of this strategy. With sufficient commitment, courts, lawyers, and mediators can optimize parties’ experiences of court-connected mediation and reduce their risks.