This Article challenges a basic premise that litigants and their attorneys broadly understand and desire similar things from litigation-track mediation processes. In providing new empirical research from medical malpractice cases, I offer disconcerting evidence of the surprising degree to which perceptions and meanings ascribed to these litigation-track processes are not only diverse, but frequently contradictory. I demonstrate that notwithstanding their different allegiances, lawyers on all sides of cases have correspondingly similar understandings of the meaning and purpose of litigation-track mediations. At the same time, I show how plaintiffs and defendants have the same understandings and visions of what mediation is and how they wish to resolve their cases there short of trial. Yet disputants' views are diametrically opposed to those of legal actors, often including their own lawyers. This is seen to be seriously problematic though one manifestation of these differences: the issue of defendant attendance at mediation. Due to disparities in knowledge, power and interests as between litigants and attorneys, I show that plaintiffs and defendants are regularly not afforded communication opportunities to address issues of prime importance to them during the process. Thus, by examining the process from a unique angle - that of juxtaposing actors' discourse on all sides of the same cases - the Article reveals inherent problems with the core workings of the legal system. This is something that current debates on formal and informal processing of litigated disputes have failed to capture.
Consequently, the Article offers a new theory that argues for the reinvention of identities of attorneys and clients in the context of litigation and mediation. This would necessitate revising conceptions about formal and informal case processing. Reflecting each actor group's disparate understandings and needs is an unlikely conceptual alignment between plaintiffs and defendants, distancing them from legal actors (including their own representatives). Lawyers are also notionally aligned, regardless of which side they are on. Each new conceptual group, i.e. (1) attorneys on all sides, and (2) disputing plaintiffs and defendants, ascribe similar meanings to these disputes and their resolution, want similar things and want communication. However, these new groups do not want the same things nor do they speak the same language in describing these cases and their resolution. Thus, actors involved in dispute resolution create competing meanings.
The Article further argues that increasing attention to litigants' extra-legal needs during litigation-linked mediation processes is necessary. In an attempt to remedy the specific problem of defendants' absences from litigation-track mediations, three suggestions are put forward: (1) opt out clauses within court rules or statutes on mandatory mediation that effectively allow defendants' absences by agreement of the parties should be changed; (2) lawyers, at a minimum, should attempt to bring at least a proportion of their defendant clients to these mediations in order to realistically assess what effects this has on their cases; (3) further emphasis on litigants' extra-legal realities and needs during case processing is necessary in law schools as well as in continuing legal education for attorneys. In examining a range of possible objections to these proposals, the Article concludes that they do not provide a sound basis to oppose increased focus upon litigants' extra-legal realities and needs within litigation-linked processes.
12 Harv. Negot. L. Rev. 445 (2007)