Burdening access to justice: The cost of divorce mediation on the cheap

St. John's Law Review, Spring 1999 by King, Carol J

III. CONSTITUTIONAL CHALLENGES TO MANDATORY MEDIATION

Before addressing the constitutional issues that arise in the mediation setting, it is necessary to understand the various dispute resolution procedures that are covered by the term "mediation." This Article defines mediation narrowly as a negotiation process. Mediation, however, has been used to refer to procedures that go beyond the scope of this definition.

One type of dispute resolution procedure is arbitration. Arbitration employs a neutral third party to render a decision on the merits of the claim. The hearing procedures are frequently less formal than a trial. For example, the rules of evidence are often relaxed, and discovery may be eliminated or curtailed in order to save the parties time and money. If the parties have agreed to be bound by the arbitrator's decision, the determination is generally final. If the parties have not agreed to binding arbitration, or if the hearing is part of a court-annexed, nonbinding arbitration program, a party dissatisfied with the result may request a trial de novo.105

Early neutral evaluation is another type of dispute resolution technique. It involves a third party, usually one with expertise in the subject matter of the case, who recommends a result as a stimulus for a negotiated resolution by the parties.106 The evaluator's recommendation is not binding.107

Some laws and court-related dispute resolution programs that resemble arbitration or early neutral evaluations are called "mediation" even though they are evaluative in nature. For example, Florida's ill-fated medical malpractice reform legislation established a so-called mediation system.108 The function of the "mediators" was to evaluate the merits of the malpractice claim at an adversarial hearing, rather than structure discussions in order to facilitate a consensual resolution.109 Thus, the process was outside the scope of "mediation" as defined by this Article.

Another example of a broad definition of mediation is found in Michigan's court rules. The Michigan Supreme Court has adopted Michigan Court Rule 2.403(A)(1), which allows a court to submit civil cases requesting money damages or division of property to a process it terms "mediation."110 A panel of three attorneys is formed to hear the parties' contentions.111 In operation, the mediation proceeding results in a cursory preliminary evaluation of the merits of the controversy.

The various types of court-annexed mandatory mediation and alternative dispute resolution programs discussed above can be subject to challenge on constitutional grounds. Particularly during the last twenty years, a number of cases have addressed constitutional challenges to mandatory pretrial dispute resolution programs. To date, no cases have specifically addressed the issue of whether involuntary party-paid divorce mediation schemes unconstitutionally impinge upon a party's constitutional rights.

The actual distinctions between the various types of alternative dispute resolution programs, regardless of how they are termed, should be kept in mind when examining case law challenging the legality of the programs. Many programs share the common goals of reducing court dockets and delays, as well as diminishing the cost of litigation to the parties. The particular way a program is structured imposes different burdens and benefits on the parties to the dispute. These differences influence the results of the cases.