Abstract

Many states in the United States, along with many nations, have implemented special benefits and privileges to encourage parties’ use of mediation to assist their communication, negotiation, and ultimate resolution of disputes. This is despite how loosely mediation is defined. This Article discusses how vague definitions, paired with special benefits and privileges, are incentivizing both the opportunistic distortion of mediation and the use of mediation for improper purposes. In Texas, for example, judges are extraordinarily limited in their ability to disapprove parents’ mediated child custody agreements—even if there is reason to worry that an agreement is contrary to the best interests of the children. As a result, lawyers now advise clients to engage in “drive-by mediation” in which a mediator meets with the clients and their lawyers for just a half hour, often online, and only after the parties have already negotiated a complete agreement on their own. Several years ago, in California, lawyers learned that they could use an evidentiary statute uniquely protecting mediation communications to shield themselves from clients’ potential legal malpractice claims—as long as the lawyers waited until mediation to advise their clients on settlement. In various states in the United States, but particularly in California, parties contract for something they call “binding mediation” in which mediators may impose decisions upon the parties. “Rogue mediation,” meanwhile, superficially complies with courts’ orders to mediate but does not actually involve any negotiation or discussion of settlement. In the international sphere, the Singapore Convention entitles mediated settlement agreements to expedited judicial enforcement but defines mediation even more vaguely than U.S. states and thus invites further distortion of mediation. This Article proposes several targeted reforms to address the opportunistic distortion of mediation. But because so many of these distortions are the result of the special benefits and privileges granted to mediation, the Article also considers whether it is simply time for these benefits and privileges to expire.

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