The UNconstitutionality of Mandatory Mediations

One of the most valued aspects of mediation is the voluntariness of the process. Generally, mediation is a process that provides parties with an opportunity to come up with their own resolution to a dispute that all of the parties agree upon. Mediation is a type of Alternative Dispute Resolution. What sets mediation apart from other common alternative dispute resolution forums is its emphasis on self-determination and voluntariness.
Mediation is a very attractive option for parties who would rather not engage in the traditional adversarial process of litigation. Throughout the last decade, mediations in Family Courts have increased most significantly. According to the National Center for State Courts, over 200 court-connected mediation programs exist in the United States.[1] In civil cases, the federal government and the states employ mediation in the following types of disputes: personal injury, construction, labor, commercial, environmental, complex multi-party anti-trust actions, and RICO claims.[2] Thirty-eight states and the District of Columbia utilize mediation in custody and visitation disputes.
Remarkably, thirty-three states have either statutes or similarly authoritative court rules that mandate mediation in contested custody and visitation cases.[3] I find that to be particularly troubling because the backbone of the mediation process is its voluntariness and its emphasis on self-determination. In my opinion, once these states legislatively strip the process of its most defining elements, all that remains is the name mediation, the actual substance of the process, however, is destroyed.
According to the Civil Court of the City of New York, “mediation is a free, voluntary, and confidential process that allows parties to create their own solutions to the problems that brought them before the court.”[4] Statutes that impose mandatory mediations drastically change the entire dynamic of the mediation process and its attractiveness to prospective participants. But, most importantly, these statutes fail to take into account the requirements of the Due Process Clause of the United States Constitution.
The Fourteenth Amendment of the United States Constitution provides that "[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law."[5] Denying citizens access to the court system by mandating mediation violates the Due Process Clause of the 14th Amendment. This paper will focus on the Constitutionality of mandatory mediations under the 14th Amendment’s Due Process Clause.
Problems with Mandatory Mediation
There are numerous benefits to mediation, however, when the process is mandated, rather than voluntarily chosen, the benefits can turn into potential dangers. In most cases, the benefits of mediation are only attainable to parties who choose to avail themselves to the advantages. If legislatures or courts misuse mediation by making it mandatory, it ceases to be a useful tool. Taking that a step further, when courts or legislatures impose mediation on parties who want to resolve their dispute in court, mediation can act as a bar to the Constitutional guarantees of Due Process.
One fundamental principal of mediation is that parties who utilize the process should have roughly equal bargaining power. When there has been instances of abuse between parties involved in a mediation, the bargaining power of the abused party is most likely substantially diminished. Parties with a history of abuse should not be advised or even permitted to enter mediation.
When a court imposes mediation, unequal bargaining power may affect the division of property. An abused party may be fearful to assert his/her rights because, as the Power and Control Perspective Wheel suggests, the abuser may have exerted economic abuse, coercion and threats, or intimidation.[6] This can be a very serious problem, especially in custody and visitation, PINS, and divorce mediations.
The mediation process has numerous upsides and it is beneficial to a wide range of parties involved in almost all kinds of disputes. It is very important, however, for both legislators and courts to understand that mediation is not the be-all-end-all of dispute resolution. It is a highly effective process when it is used and facilitated appropriately—that is, when the parties voluntarily engage in it. By imposing mediations, legislators are attempting to stretch the benefits of mediation to cover an unlimited range of parties and cases. Mediation does not work when its fundamental principle, voluntary engagement, is disrespected and abused. Legislators and courts need to understand that good things are not always good all of the time.
To address the problem of abuse and unequal bargaining power, courts must devise a screening process that is designed to detect instances of abuse between parties. Before a court sends parties to mediation, it is essential that the court implement its screening process to ensure that mediation is an appropriate forum for dispute resolution. If parties are not screened prior to entering into mediation, the mediation loses its effectiveness and becomes hazardous to the participants. Mediation is not the answer for everyone. It is a useful tool for certain parties involved in certain disputes. However, when courts and legislatures impose mediation on parties without taking steps to ensure its appropriateness in a particular setting, they are abusing the process and potentially violating the Constitutional rights of the parties involved.

Statutes Requiring Mediation as a Prerequisite to a Judicial Hearing

The Maine legislature passed a statute that gives courts the power to “refer the parties to mediation on any issue.”[7] If the parties do not reach an agreement through mediation, "the court must determine that the parties made a good faith effort to mediate the issue before proceeding with a hearing."[8] If the court finds that the parties did not make a good faith effort to mediate, "the court may order the parties to submit to mediation, may dismiss the action or a part of the action, may render a decision or judgment by default, may assess attorney's fees and costs or may impose any other sanction that is appropriate in the circumstances."
The Maine statute is problematic because it abuses the mediation process and it does not comport with Due Process requirements. First, parties are less likely to attain the goals of mediation when their participation is not voluntary. The Maine statute eliminates all of the voluntary aspects of mediation. Second, the statute unjustifiably restricts access to Maine courts. To justify the statute, Maine would have to assert a state interest that outweighs a party’s right to access the courts. Maine’s interest in requiring mediation is most likely one of alleviating the pressure on its dockets by encouraging, and perhaps forcing parties to devise their own resolutions to disputes through mediation. However, the risk of depriving a person of the right to pursue a judicial remedy is great and, in my opinion, far exceeds Maine’s presumed interest.
Under this statute, an abused party might mediate and agree to a resolution in an effort to avoid further confrontation with the abuser, especially if a judge returned the parties to mediation after finding that the parties failed to mediate in good faith. If an abused party is required to mediate, that party is at a major disadvantage and the mediator may not be able to level the resulting imbalance. Maine’s statute does not consider prior instances of abuse when empowering courts to order parties to mediation. When an abused party agrees to a mediated decision because of his/her fear of continuing negotiations with the abuser, the statute that required mediation as a prerequisite to a judicial hearing, effectively denied, not merely delayed, the abused party’s access to the court. Under these circumstances, the Maine statute violates the Due Process clause.
There are certain situations when mediation is entirely inappropriate and also, in my opinion, unconstitutional. These situations are now commonplace in Maine. They arise when parties are denied a judicial hearing and instead sent to mediation without a guarantee that the they will ever be allowed to bring their case back to court if an agreement is not reached during the mediation. The citizens of Maine, their courts and legislators not excluded, have a skewed understanding of mediation. Mediation, as they know it, is not even mediation at all. Mediation has several different definitions, but they all have at least two fundamental elements in common: (1) it is voluntary, and (2) it requires self-determination to be successful. In Maine, mediation is something completely different. There is no aspect of voluntariness and the issues that parties must determine are not even germane to the issues presented in their case. Instead of deciding whether a proposed settlement is acceptable to them personally, they have to think about the legal ramifications of declining a settlement offer from the other party. If a judge rules that the party failed to mediate in good faith based on the party’s refusal to accept a settlement offer, the Maine statute empowers the judge to dismiss the case entirely. Parties involved in mediations should not be forced to balance the risk of having their cases dismissed against their desire for a judicial remedy.

Mediation Should Only be Used by Parties Who Voluntarily Choose to Mediate.

Due Process concerns arise when a court imposes mediation because it impedes upon parties’ liberty interests. By providing court-annexed mediation, the court makes an attempt to offer parties a potentially more satisfactory means of resolving their dispute, without intruding upon the parties' due process rights. If the parties are willing, courts can and should provide for court-annexed mediation services to assist the parties in the divorce proceeding. Voluntary court-annexed mediation may reduce both the size of dockets and costs.
State legislatures should repeal mandatory mediation statutes and statutes that grant courts discretionary powers regarding mediation. When a party's right to a trial is taken away, the party's right to due process is violated. To avoid potential constitutional violations, courts and statutes should take the approach of informing the parties of their right to mediate without mandating that option.

Supporting Case Law:

A Texas trial judge ordered parties in a negligence action to mediate their claims. The parties had no interest in mediation and challenged the judges order. The judge’s order required the parties to negotiate in good faith a resolution of their claims through mediation. The parties sought mandamus relief from the Texas Court of Appeals.[9]
The Court of Appeals conditionally granted the petition, finding that respondent's order was void insofar as it directed the parties to negotiate in good faith a resolution of their dispute through mediation, despite their objections. The court found that a trial court was authorized to refer a dispute to an alternative dispute resolution on its own motion, however, if a party objected, and there was a reasonable basis for the objection, the trial court may not order the parties to mediate.[10] The court found that the trial court's order requiring the parties to negotiate in good faith and attempt to reach a settlement did not comport with the legislative intent to compel referral, but not resolution.

Conclusion:
To ensure that statutes and courts do not run afoul of the fundamental right to due process, mediation can never be mandatory. It must always be voluntary, otherwise it is a contradiction in terms. The very premise of mediation is its voluntary nature, which in theory makes the parties more willing to reach an agreement. The traditional adversarial system, with its mandate that parties choose a position and stick to it, is not necessarily conducive to reaching an agreement, particularly for cases in which custody and visitation are at issue. Mediation is an excellent option when it is truly an option. When a court or statute mandates mediation, however, a cornerstone of its foundation is removed, causing serious structural flaws.
[1] See, Peter Salem & Ann L. Milne, Making Mediation Work in a Domestic Violence Case, 17 FAM. ADVOC. 34, 34 (1995).
[2] See, 6 Wm. & Mary Bill of Rts. J. 277, at 278.
[3] See, Salem & Milne, supra note 1, at 34.
[4] See, http://nycourts.gov/courts/nyc/civil/pdfs/mediation.pdf
[5] U.S. CONST. amend. XIV.
[6] See, http://www.opdv.state.ny.us/about_dv/wheeltext.html
[7] ME. REV. STAT. ANN. tit. 19-A, 251(1)
[8] Id. at 251(4).
[9] Decker v. Lindsay, 824 S.W.2d 247 (Tex. App. 1992)
[10] Id. at 257