Except for a modest filing fee and the cost of lawyers, courts are free. Litigants don't pay the courthouse rent, the salaries of judges, secretaries, clerks or janitors, nor do litigants even pay for postage and telephone. Therefore, courts are like a Kroger store that asks a $5 entrance fee and then allows the customer to carry away as much meat as she wants. Obviously, such a Kroger store will soon run out of meat, so people will stand around in long lines. Rationing in the Kroger example occurs through shortage and "standing in line."

Courts, like my mythical Kroger store, are governed by non-price rationing, including shortage and standing in line. One element of "shortage" these days is mandatory mediation-- a rationing technique abetted by an active lobby of folks who make a living mediating. From a mediator's perspective, one of the nice things about mediation is that remuneration is not limited by the crummy state salary scale; unlike courts, mediation is not free, so the litigants, rather than the public, pay through the nose to have this rationing device applied to them. Indeed, because of the cost factor, mediation is sometimes like being flogged with your own belt!

I have always loved the term "alternative dispute resolution" because it naively sucks up on the great law school and political science myth that people go to court to have their disputes resolved. Perhaps domestic litigants have real disputes; perhaps homeowners fighting with contractors have real disputes; and, perhaps even the guy who buys a defective used snow tire from a neighbor has a real dispute. But the lion's share of big time litigation involves dynamics far more complicated than the simple disputes model adumbrates.

The husband who is fighting with his wife, the homeowner who is fighting with her contractor, and the hapless snow tire purchaser are not fighting with professional defendants. Amateur litigants on both sides can be cajoled, reasoned with, and even dissuaded by the seamy side of litigation. None of that, however, means a thing to a professional defendant for whom the cost of a scorched earth defense is insignificant in comparison to the prospect of achieving a discount of 75 cents on the dollar on a claim that will pay full freight when the jury gets it!

When I was a young Army cadet at Fort Devens, Massachusetts in 1962 we all got an occasional two day weekend leave. Before our initial sojourn, the first sergeant stood up in front of the company and regaled us with his picture of us swaggering into Boston's sex-for-sale "combat zone" in our uniforms in search of action. "Remember," he admonished us, " the woman you pick up in a bar tonight has forgotten more about last night than you'll ever know about that sort of life!" Well... the same can be said for the representatives of professional defendants-- primarily insurance companies, but also self-insured operations like railroads and coal companies.

The dark side of mediation, then, is that mediation is frequently used by professional defendants against inexperienced lawyers and naive litigants. Like the whore in the Boston bar, professional defendants do mediations every day. Indeed, when I first went to mediations, I treated the representatives of professional defendants as if they were human. In other words, I assumed that once I had demonstrated the level of injury of my plaintiff, the "human" insurance adjuster would agree to pay fairly. Nothing, of course, could have been farther from the truth!

I quickly discovered that all professional defendants are playing a statistical game where decency, honesty, and the Golden Rule have no place. With a professional defendant, as opposed to a housewife's contractor or the neighbor who sold the snow tires, money is the only thing that matters. Mediation, then, is cynically seen by professional defendants only as an opportunity to get an inexperienced or financially strapped lawyer to sell out his or her client or to convince the plaintiff to reject his or her lawyer's advice for quick money.

Now I go into a mediation with a professional defendant knowing that it is a complete waste of time to explain a client's injuries, show his scars, or display his prosthetic devices. These days I simply say: "Have you got an offer to make?" If there's a real offer, I devote as much time as it takes to determine whether the professional defendant is there in good faith (actually, this is entirely speculative as I have never seen this happen); otherwise, I say to all assembled, "We're all busy, we're wasting our time, lets get out of here!"

With an experienced plaintiffs' lawyer and a professional defendant, settlement, if its going to happen at all, will happen between the lawyers without everyone paying through the nose for a mediator. Of course, defendants never resist mediation. And why should they? Mediation is wonderful for the defense bar; mediation is high paid, no-brainer work that might-- if you're really skillful-- go on for two days before the other side wises up and says the magic words.

Perhaps settlement won't happen with an inexperienced plaintiff's lawyer who thinks his soft tissue case is the winning lottery ticket or with a client who won't listen to his lawyer's advice. In either of these two situations, a good mediator can help. But because in these two situations mediation will help, it is not an exercise in legal genius to take the next unwarranted step of inventing an automatic mediation algorithm.

The bottom line in all this is that as much as mediation appears to be a good rationing device to save judge and juror time, its application requires discretion. In every case the question should be asked: " Do we have a real dispute here?" If the answer is "no," mediation should go out the window. Without good, articulable reasons (such as, the plaintiff or plaintiff's lawyer has unreasonable expectations) mediation should never be ordered over the objections of either party.

Expecting a mediator to exact a fair settlement from a professional defendant is like expecting a mediator to teach a pig to fly! Litigation that is really about one litigant's using the legal system's own weight against the other litigant to achieve a deep discount on a just claim is not a real dispute. Settlement will come, if at all, the day the jury is struck. When that's obviously the case, let's save the expensive mediation trip and move the jury striking date up instead.

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