Mandatory mediation in the United States of America - Essay Example

Running head: Mandatory Mediation in the United s of America MANDATORY MEDIATION IN THE UNITED S OF AMERICA of the student: _________________________________ Student ID No.: _____ Program: _________________________________________ (course or educational curriculum) Specialization: ____________________________________________ Faculty Mentor/Professor: Name of school ___________________________________________ Abstract Courts all over the world are clogged with cases. This drawback means humongous costs to the government concerned and an insignia of justice being denied as having been rendered too late. Owing to this, substitute ways to resolve disputes have long been thought of to patch up controversies peacefully and inexpensively, that is, without the intercession of the judicial agencies of the state. One such extra-judicial methodology is mediation which is a form of an alternative dispute resolution. Mandatory Mediation in the United of America Introduction and overview Mediation is a tool used to resolve conflicts between or among natural persons, business entities and even nations. It is actually one of the conventional types of alternative dispute resolution, the other one being arbitration. (HISTORY OF ALTERNATIVE DISPUTE RESOLUTION. GAMA Inc. We Shine the Light on Dispute Resolution [internet]). The process has been around for thousands of years way back in ancient China to the New Testament as a means of resolving differences in personal, business and other relations. (Sobourne, Anne K. Motivations for mediation: An examination of the philosophies governing divorce mediation in the international context. April 1, 2003. AllBusiness. [internet]). The practice or undertaking is an old one and is estimated to have begun during Phoenician times which was then observed in trade and commerce. There were findings that indicated it was already in use in Babylon and later developed in Greek and Roman civilizations in which periods the mediator was referred to as the medium, internuncius, philantropus, intercessor, interpolator, interlocutor, conciliator, interpres, and ultimately mediator. The latter was a respected figure in the community equaled with the wise men who, by tradition, were acknowledged advisors. (Mediation. Indopedia. [internet]). There are instances when mediation is resorted to because a controversy has arisen and the adversaries choose to have the matter passed upon by a neutral referee, called the mediator, rather than to go through the rigors and the high cost of court proceedings which are usually protracted. In some other situations, there is a clause in the covering contract in which the parties provide for a mediation mechanism. This part of the main agreement has a jurisdictional repercussion because the supposed hearing court will not normally entertain a stipulated dispute if the mediation remedy is not first exhausted. It is given that alternative dispute resolutions which include mediation have become the better option to settle controversies without resorting to court processes. (Alternative Dispute Resolution. Superior Court of California. County of Fresno. [internet]). It is claimed that the idea of mediation in the United States of America started as early as during the time of the native American tribes. (Eric van Ginkel. Mediation under National Law: United States of America. IBA Legal Practice Division. MEDIATION COMMITTEE NEWSLETTER. August 2005. [internet]). Before proceeding, it is deemed important that mediation be distinguished from arbitration because there is that usual mistake of interchanging the two under the wrong perception that both are the same or similar. Arbitration is a more expeditious, less complex and inexpensive replacement of a court suit. The controversy is endorsed to an impartial outside party called the arbitrator who has expertise over the subject of the conflict. After a prudent assessment and evaluation of the pertinent facts, the arbitrator decides in favor of the party he deems has a better right. Mediation, on the other hand, gives the parties the opportunity to come up with their own resolution of the controversy. The figure in the middle, the mediator, is a neutral person or panel of persons who or which assists the contenders to settle their differences and agree on a way to thresh out the matter in conflict. Arbitration is adversarial while mediation is not and is, instead, a cooperative course of action whereby those involved resolve to mutually come into an agreement to iron out the pending diversity. The arbitrator evaluates while the mediator simply facilitates. While both processes are classes of an alternative dispute resolution, the distinction in between is significant especially as to the laws that govern the respective proceedings. (Sharland, Alan.Let's Be Clear, Mediation Is NOT Arbitration. October 2009. [internet]). In view of the foregoing clarifications on the distinction between arbitration and mediation, the Federal Arbitration Act and the Revised Uniform Arbitration Act are not considered in this treatise. (The Federal Arbitration Act. American Arbitration Association. Dispute Resolution Services Worldwide. [internet]. (UNIFORM ARBITRATION ACT [Last Revisions Completed Year 2000] [internet]). As far as concerning recent developments in mediation, the legislative action or statute to be considered here is the Uniform Mediation Act which was last revised or amended in 2003. The prefatory remarks in the annotations on the Uniform Mediation Act readily implies that mediation was used only in collective bargaining negotiations and that it was only during the last thirty years that the dispute resolution method has gone beyond the said labor-management haggling process. (Prefatory Note. UNIFORM MEDIATION ACT. [internet]). Resolving disputes in the United States connected with industrial relations through proceedings without the intervention of the courts has had a long history especially in collective bargaining negotiations where mediation has always played an important role. The latter recourse was, and still is, usually true in the event of a bargaining deadlock. (Dunlop, John T. and Arnold M. Zack. MEDIATION OF EMPLOYMENT DISPUTES. [internet]). In civil as well as in other disputes, mediation is the option sought instead of entering into the judicial confines because of practical reasons. It is fast, not expensive and there are no adversarial stances or, if there is such an outlook, the same is brought to the least minimum level. The elements of confidentiality and privacy are always preferred over open and public hearings. (THE ADVANTAGES OF MEDIATION. CONSTRUCTION DISPUTE RESOLUTION SERVICES. [internet]). Resorting to mediation has also been the chosen approach in many marital conflicts supposedly because it is better than marriage counseling. It is claimed to have saved marriages, not to mention its quickness and effectiveness. Issues on parenting between separated spouses including parents' rights, duties and responsibilities, are also ironed out through mediation. (Marriage Mediation. [internet]. (Mediate Right Now. [internet]). Mediation is likewise utilized in many other areas such as in credit and insurance matters. The fact that this dispute resolution process is now gaining wide acceptance only shows that it has proven to be effective, convenient and practical to utilize under any given set of circumstances. Terminologies Mediation and conciliation Mediation is formal and procedural. It observes certain methodologies that are fixed or have become standard procedures. The steps to be taken in the process follow a regular or routine course. It has certain solemnities to observe or mechanisms to be enforced. (Warfield, Wally. Can you explain the difference between conciliation and mediation Civil Rights Mediation.org. [internet]). In the case of conciliation, it is actually any informal way of interceding between two parties in an attempt to mend their divergence, conflict or controversy. To conciliate is to adjust or settle disputes in an amicable manner so as to avoid making the issue bigger or more serious such as going into court litigation. In labor law parlance, it is the step before arbitration which is actually a semi-trial already. (conciliation. THE FREE DICTIONARY. [internet]). Facilitative and evaluative mediations About forty or fifty years ago, there was just one kind of mediation being learned and put into practice. It is now termed as facilitative mediation where the mediator, using a method he has developed, tries to bring the parties to come into a settlement upon which they can have mutual and amicable agreement. The mediator poses queries or inquires on the concerns involved in the controversy and thereafter establishes and documents the sides of both parties and their perceptions of the issues. The parties are then being helped in the common effort to find and analyze ways and means to solve the pending predicament that has brought about friction or animosity to the contenders. The mediator does not suggest anything to the parties nor does he give any opinion on the conflict nor does he foresee what will be the outcome if the matter is endorsed to judicial ambit. The mediator controls the proceedings but the parties are the ones who determine the results. The mediator always desires that they decide on their own and not according to how their lawyers sway them. On the other hand, evaluative mediation is the reverse of facilitative mediation in some ways. In evaluative mediation, a method is designed during meetings held by judges purportedly to find ways to settle the case. The evaluative mediator helps the adversaries to arrive at the possible outcome by identifying the aspects where each is strong or not thereby foretelling the probable decision of the judge or jury. The parties may be advised by the mediator on the likely result after evaluating the concerns and subjects of the controversy. In evaluative mediation, the rights of the parties are focused on and not their needs and interests. Shuttle diplomacy is utilized in evaluative mediation, that is, the mediator separates the parties and their counsels while he is at the middle. Thus, without confrontation, the views and perceptions of both sides become known to the mediator who will then have all the leeway to evaluate all the attendant circumstances. The parties and their attorneys are then apprised of their respective positions and the advantages and the disadvantage of pushing through or not pushing through the claims and counterclaims. Evaluative mediation is usually the result of a court order or referral. Since the dispute has normally reached the judicial process, the lawyers of the parties actively participate in the mediation proceedings and, as a matter of fact, have a role in the choice of mediators. Evaluative mediators are usually presumed to be experts in the legal process or in the substance of the issues under contest. Oftentimes, attorneys are picked to be evaluative mediators. (Zumeta, Zena D. Styles of Mediation: Facilitative, Evaluative and Transformative Mediation. Lean to Mediate. [internet]). A new concept under the group of facilitative and evaluative mediations is transformative mediation where each party is made to recognize the needs, interests, values and points of view of the other. It is something like this side getting to know better the other side and vice-versa. In some ways, transformative mediation is a modification, or a return to the earlier and old style, of facilitative mediation. (Burgess, Heidi. Transformative Mediation. [internet]). It is called transformative because there is that initiative to transform for the better the relationship of the parties in the course of the mediation. This kind of mediation actually advocates techniques that go for peace in society. In a way, it is a crusade for peace through understanding of one another. Administered and ad hoc mediations An administered mediation is one that is being managed or overseen by an association duly designated to be so. There are instances where the parties stipulate in their contract provisions for mediation in case of controversies related to their contractual relations, including the mediator who or which will act and preside as such. Under that situation, it is the administering mediator who or which has control and supervision over the mediation process. Owing to its nature, administered mediation is usually more costly as there are even fees for administration and other services which have to be paid upon filing. (Peppard, Terry F. FREQUENTLY ASKED QUESTIONS: Mediation. [internet]). In contrast, especially for qualified and competent disputants, an ad hoc or self-administered mediation gives the parties much of the leeway in the conciliation proceedings. They develop or establish their own rules, schedule their dates, times and venues for hearings or confrontations and decide on such other matters as will conveniently and expeditiously dispose of their own controversy. Necessarily, however, the cooperation and coordination and mutual respect must come from both parties. (Erickson, Helena Tavares. The Top Ten Questions People Ask About Ad Hoc, Non-Administered Or Self-Administered Arbitration. August 1, 2008. [internet].). Voluntary and Mandatory Mediation Controversies may be mediated as have been agreed by the parties in their own private agreement. This means that the two parties to a contract may include a clause or a provision in it which sets forth the mechanisms for mediation in case there will be some mis-understanding in the future concerning the implementation of the contract or any other matter related thereto. This is what is called voluntary mediation as the parties have voluntarily covenanted to exhaust the mediation remedy before they go to court and litigate. In contrast, mandatory mediation is one where the parties are mandated to go to the negotiating table to explore the possibility of settling their differences. This is somewhat confusing because the parties are not actually ordered to settle their dispute. They are only directed to go to the mediation process before further proceedings, like a court trial, can go on. If the efforts to try to amicably clear the controversy fail, the case will proceed according to the applicable rules. The matter of deciding whether or not to settle has still to be on the own volition of the parties and is therefore still voluntary. Mandatory mediations are generally provided for by law and usually apply to specific situations like employer-employee disputes, family relations and consumer concerns. There are states that provide for mandatory mediation in civil cases where the amount involved is not very significant as measured within a defined level. Such process is made a component of the pre-trial stage of the litigation in order to promote resolving the suit before the cost of litigation starts to add up. (Voluntary versus Mandatory Mediation. Yahoo! ANSWERS. [internet].) Mandatory mediation statutes in the States Initiatives for mandatory mediation have become institutionalized in almost all the states of the United States of America. A list in schedule form arranged in alphabetical order follows. State Description of the State Law Application ------- ----------------------------------- --------------------------------------------- (a) Alabama Alabama Code, Ch. 25-7-4 Labor disputes (b) Alaska Alaska Statute 42.40.840) Alaska Statute 23.40.190) Labor disputes Alaska Statute 25.20.080) Alaska Statute 25.24.080) Family disputes Alaska Statute 45.45.355 Automobile warranties (c) Arizona Arizona Law 25-381.01) Arizona Law 25-381.24) Family disputes Arizona Law 44-1265 Automobile warranties (d) Arkansas Arkansas Statutes 11-2-201 to 11-2-206 Labor disputes (e) California California Code Sec 65,66) California Code Sec 3518) Labor disputes California Code Sec 5180 to 5183 Family disputes California Code Sec 48260) California Code Sec 48263) California Code Sec 48263.5) California Code Sec 56503) Education California Code Sec 53066.1(n)(1) TV franchise disputes California Code Sec 13127(c)(1) Environmental regulatory disputes California Code Sec 1219 Water rights disputes California Code Sec 465 to 471.5 Community disputes (f) Colorado Colorado Statute 8-3-113 Labor disputes Colorado Statute 14-10129.5 Family matters Colorado Statutes 6-9-101 to 6-9106 Agricultural debts Colorado Statute 38-12-216 Mobile homes Colorado Statutes 13-22-301 to 13-22-310 Dispute resolution matters (g) Connecticut Connecticut Statutes 31-91 to 31-100) Connecticut Statute 5-276) Connecticut Statute 5-276a) Labor disputes Connecticut Statute 46b-59a Family disputes (h) Delaware Delaware Code Title 14 Sec 4002) 4014) Delaware Code Title 19 Sec 110) 113) 1614) Labor disputes Delaware Code Title 6 Sec 5007 Automobile warranties (i) Florida Florida Statute 448.06) 681.110(4)9d) Labor disputes Florida Statute 44.101) 61.183) 39.42) 39.427 to 39.429) 39.436) 39.44) 39.442) Family disputes Florida Statute 681.108) 681.111) Automobile warranties Florida Statute 723.037) 723.038) Mobile homes (j) Georgia Georgia Law 34-2-6(5) 25-5-1 to 25-5-14) 45-19-32) 45-19-36) Labor disputes (k) Hawaii Hawaii Statute 371-10) 98-11(b)(1)(d) 89-12(a) and (b) 380-8) 377-3) Labor disputes Hawaii Statute 490-2) 313-1) Automobile warranties Hawaii Statutes 671-11 to 671-20 Medical conciliation Hawaii Statute 205-5.1 Geothermal resources disputes 1988 Haw. Sess. Laws, Ch. 186, Sections 1-9 International disputes (l) Idaho Idaho Code Sec 44-106 Labor disputes (m) Illinois Illinois Statute Ch. 48, paragraphs 1612) v1706) 1712) 1713(b) Illinois Statute Ch. 10, paragraph 26) Labor disputes Illinois Statute Ch. 40, paragraph 602.1) 607.1) Family disputes Illinois Statute Ch.121.5, paragraph 1204(4) Automobile warranties Illinois Statute Ch. 11, paragraph 702.12a Public Utilities Illinois Statutes Ch. 37, paragraph 851.1 to 856) Community disputes (n) Indiana Indiana Code 5-14-1.5-6.5(2) 22-1-1-8(d) 22-6-1-7) 20-7.5-1-9 to 20-7.5-1-13) Labor disputes Indiana Code 31-1-24-1 to 31-1-24-9) 31-1-23-5 to 31-1-23-9) Family disputes Indiana Code 24-5-13-19 Automobile warranties Indiana Code 22-9-1-6 Civil Rights disputes Indiana Code 4-6-9-4(a)(4) Consumer protection disputes Indiana Code 13-2-1-6(2) Water rights disputes (o) Iowa Iowa Code 20.19 to 20.20) 679B to 679B.27) Labor disputes Iowa Code 598.16) 598.41(2) Family disputes Iowa Code 654a1 to 654a14 Agricultural debts Iowa Code 601A.15(3)(c) Civil Rights disputes Iowa Code 679.1 to 679.14 Informal disputes (p) Kansas Kansas Statute 44-817) 44-819(j) 44-820(c) 44-826) 44-828) 72-5413(h) 72-5427) 72-5429) 72-5430(b)(7) 72-5430(c)(7) 75-4322) 75-4323) 75-4332) 75-4333) Labor disputes Kansas Statute 23-601 to 23-607) 23-701) Family disputes Kansas Statute 50-645(e) Automobile warranties Kansas Statute 44-1001 to 44-1005 Civil Rights disputes Kansas Statute 65-1824(4) Barbershop business disputes (q) Kentucky Kentucky Statute 337.425) 345.080) 336.010) 336.020) 336.140) 336.151 to 336.156) Labor disputes Kentucky Statute 403.140(b) 403.170) Family disputes Kentucky Statute 367.860 to 367.880 Automobile warranties Kentucky Statute 344.190 to 344.290 337.425) Civil Rights disputes Kentucky Statute 165A.350) 360) Education matters Kentucky Statute 260.020.030(e) 260.020.040(l) Production and distribution of agricultural products Kentucky Statute 273.451 Community agency funding (r) Louisiana Louisiana Statute Title 23, Section 6 Labor disputes Louisiana Statute Title 9, Sections 351 to 356 Family disputes Louisiana Statute Title 23, Section 1944 Automobile warranties Louisiana Statute Title 40, Section 597 Housing civil rights matters Louisiana Statute Title 37, Section 381 Barbershop disputes Louisiana Statute Title 40, Section 1299-47 Medical Review Panel (s) Maine Maine Statute Title 26, Section 1026) 965) 931 to 936) 979-D) 1281) 1282) 1285) Labor disputes Maine Statute Title 4, Section 18 (1 to 5) Maine Statute Title 19, Section 214 (1,4) Section 518(1,2, and 4) Section 656,665) Section 752(4) Family disputes Maine Statute Title 10, Section 1165 Automobile warranties Maine Statute Title 24, Sections 2851 to 2859 Professional negligence claims (malpractice) Maine Statute Title 13, Sections 1956 to 1959 Production and distribution of agricultural products (t) Maryland Maryland Code Article 6, Section 408(d) Article 89, Sections 3, 9) 11) Labor disputes Maryland Code Article 56, Section 169 Employment agency disputes (u) Massachusetts Massachusetts General Law Chapter 150, Sec 1 to 3 Labor disputes Massachusetts General Law Chapter 166A, Section 16 Cable television disputes Massachusetts General Law Chapter 218, Section 43E Community Mediation (v) Michigan Michigan Court Rules 2.403 Civil actions Michigan Court Rules 3.211 Domestic relations Michigan Court Rules 600.4901 to 600.4923 Mediation of health care matters Michigan Court Rules 432.1) 423.9 to 423.9c) 423.25) 423.207) Labor disputes Michigan Court Rules 290-714 Production and distribution of agricultural products Michigan Court Rules 730.147 to 730.155 Small claims (w) Minnesota Minnesota Statutes 179.01) 179.03) 179.04) 179.06) 179.14) 179.15) 179.02 to 179.09) Labor disputes Minnesota Statutes 518.167) 518.619) Family disputes Minnesota Statute 325F.665 Automobile warranties Minnesota Statutes 63.01) 63.04 to 63.06 Civil Rights disputes Minnesota Statute 487.30 Conciliation Courts Minnesota Statute 572.31 to 572.40 Civil Mediation Minnesota Statute 484.74 Civil litigation Minnesota Statute 494.01 to 494.04 Community dispute resolution Minnesota Statute 572.41 Debtor/creditor mediation Minnesota Statute 176.351(2a) Worker's compensation disputes Minnesota Statute 17.692) 17.695) 17.697 to 17.701 Production and distribution of Agricultural products Minnesota Statute 40.22) 40.23(3) 40.242) 40.244) 221.035F) 221.036(9) 116.072(1) 116.072(6) to 116.072(8) Environmental issues Minnesota Statute 115A.29(2)(a) 115A.38(2) Environmental waste management (x) Mississippi Mississippi Code 63-17-159) 63-17-163) Automobile warranties Mississippi Code 69-2-43 to 69-43-51 Agricultural debt (y) Missouri Missouri Statutes 290.400) 290.420) 290.430) 295.030 to 290.190 105.525 Labor disputes Missouri Statutes 213.010(1) 213.020) 213.075) Civil Rights disputes (z) Montana Montana Code 39-31-307 Labor disputes Montana Code 26-1-81) 40-3-111 to 40-3-127 Family disputes Montana Code 80-13-191) 80-13-201 to 80-13-214 Agricultural debt Montana Code 49-2-501(1) 49-2-504 to 49-2-506 49-2-601) Civil Rights disputes Montana Code 39-71-2401 to 39-71-2411 Worker's compensation disputes Montana Code 20-7-462(4) Education matters Montana Code 27-6-101 to 27-6-704 Medical malpractice panels Montana Code 80-1-101) 80-11-103(9) Production and distribution of Agricultural products (aa) Nebraska Nebraska Law 42-801 to 42-823 Family disputes Nebraska Law 2-4801 to 2-4816 Agricultural debt Nebraska Law 20-113.01) 20-114(1)(2) Civil rights disputes (bb) Nevada Nevada Statutes 288.190) 288.200) 288.205) 288.215) 288.220) 288.270) 614.010) 614.020) Labor disputes Nevada Statute 598.761 Automobile warranties Nevada Statute 233.020 to 233.210 244.161) Civil Rights disputes Nevada Statute 598B.150 Consumer credit and civil rights disputes Nevada Statute 394.11 Educational disputes Nevada Statute 118B.024) 118B.025) 118B.260) Mobile home disputes (cc) New Hampshire New Hampshire Statutes 273-A:1) 273-A:12) 273.215) 273.220) 273.270) 614.010) 614.020) Labor disputes New Hampshire Statutes 357.0:4 Automobile warranties (dd) New Jersey New Jersey Law 34-13A-4 to 34-13A-16 34-13A-15) Labor disputes New Jersey Law 52:27E-40) 52:27E-41) Civil rights disputes New Jersey Law 2A:23A-1 to 2A:23A-19 New Jersey Law 52:27E-40) 52:27E-41) Developmentally disabled New Jersey Law 46:3 B-9 Home warranties New Jersey Law 32:31-5 Radioactive waste issues (ee) New Mexico New Mexico Law 40-12-1 to 40-12-6 40-4-9.1(B) (J)(5) Family disputes New Mexico Law 57-16A-6 Automobile warranties New Mexico Law 34-8A-10 Small claims (ff) New York New York Judicial law Sections 205 Labor disputes 209 Civil Service Sections 750 to 760 Labor disputes New York Judicial law Sections 911-926 Family disputes New York Judicial Law Section 198-a Automobile warranties Section 170(3a) Tax matters New York Judicial Law Sections 849-a to 849-g Community Dispute Resolution Programs (gg) North Carolina North Carolina Statutes 95-32 to 95-36 Labor disputes North Carolina Statute 20-351.7 Automobile warranties North Carolina Statute 143-422.3) 41A-6(6) 41A-7(a) 41A-8) Civil Rights disputes (hh) North Dakota North Dakota Code Sections 14-09.1-01 to 14-09.1-08 27-05.1-01 to 27-05.1-18 Family disputes North Dakota Code 51-07-18(3) Automobile warranties North Dakota Code 6.09.10-01 to 10-09 Agricultural debt North Dakota Code 11-26-01 to 11-26-08 Debtor-creditor disputes (ii) Ohio Ohio Code 4117.02(A) (E) (H)(7) (N) 4117.14(A) (C) Labor disputes Ohio Code 3117.01 to 08 Family disputes Ohio Code 1345.75 77 Automobile warranties Ohio Code 1901.331 Civil rights disputes (jj) Oklahoma Oklahoma Statute Title 15, Section 901(f) Automobile warranties Oklahoma Statute Title 25, Sections 1505) 1704) 1705. 22-9-1-6) Civil Rights disputes Oklahoma Statute Title 12, Sections 1801 to 1813 General disputes (kk) Oregon Oregon Statutes 662.405 to 455 662.705(4) 662.715) 662.785) 243.650) Labor disputes Oregon Statutes 107.510 to 107.615 107.755 to 107.795 107.179(4) Family disputes (ll) Pennsylvania Pennsylvania Statutes Title 43, Section 211.31 to 39) Title 43, Section 213.13) Title 43, Section 1101) 801) 802) Title 43, Section 217.3) General Labor disputes Pennsylvania Statute Title 73, Section 1959 Automobile warranties Pennsylvania Statute Title 43, Section 957(i) Title 43, Section 959(a) to (c) Civil Rights disputes Pennsylvania Statute Title 52, Section 1406.15 Eminent domain (mm) Rhode Island Rhode Island General Law 28-10-1) 28-9.4-10) 28-9.4-17) 28-7-10) Labor disputes Rhode Island General Law 42-42-5 to 42-42-7 Consumer Issues (nn) South Carolina South Carolina Codified Laws 41-10-70) 41-17-10) Labor disputes South Carolina Codified Laws 1-13-70) 1-13-90) Civil rights disputes South Carolina Codified Laws 37-6-117 Consumer disputes South Carolina Codified Laws 8-17-360 8-17-370) Employment grievances (oo) South Dakota South Dakota Law 60-10-1 to 60-10-3 Labor disputes (pp) Tennessee Tennessee Code 45-1-301 to 45-1-309 Bank patrons (qq) Texas Texas Law Article 5154c-1, Section 9 Labor disputes Texas Law Article 4590f-1, title 7, 154.001 to 154.073 Section 3.07(d) General Law (rr) Utah Utah Law 30-3-16.2 to 30-3-17.1 30-3-4.1) 30-3-4.3) Family disputes Utah Law 30-20-7 Automobile warranties Utah Law 78-14-1) 78-14-2) 78-14-12 to 16 Medical malpractice (ss) Vermont Vermont Code Title 21) 924) 925) Title 3) 8.25) Title 21) 521 to 554 Labor disputes Vermont Code Title 16, Section 2941) 2959) Special Education (tt) Virginia Virginia Code 40.1-70 to 40.1-75 Labor disputes Virginia Code 16.1-69.35 16.1-289.1) Family disputes Virginia Code 59.1-207.15 Automobile warranties Virginia Code 16.1-69.35(d) Civil mediation Virginia Code 15.1-945.1 Local government dispute (uu) Washington Washington Law 49.08.010) 41.56.430) 41.56.440) 41.56.450) 41.59.120) Labor disputes Washington Law 26.09.015 Family disputes Washington Law 19.118.150 Automobile warranties Washington Law 49.60.130 Civil Rights disputes Washington Law 7.75.010 to 7.75.100 Dispute resolution (vv) West Virginia West Virginia Code Section 21-1A-1 Labor disputes West Virginia Code 46A-6A-8) 46A-6A-9) Automobile warranty disputes (ww) Wisconsin Wisconsin Statutes 101) 24) 111.11) 111.39) 111.53-56) 111.70) 111.77) Labor disputes Wisconsin Statutes 753.016) 767.081-82) 767.001(3) (4) 767.11) 767.327(1) (2) Family disputes Wisconsin Statute 218.015(3) to (7) Automobile warranties Wisconsin Statute 118.20) 230.85) 1419) Civil Rights disputes (xx) Wyoming Wyoming Statute 40-17-101(a) (f) Automobile debt Wyoming Statute 11-41-101 to 110 Agricultural debt Wyoming Statute 35-11-701(a) to (c) Environmental issues (United States Mediation. USLegal LAW DIGEST. [internet].) As mentioned earlier, mediation has always been an important process in industrial relations matters or employer-employee conflicts and other concerns including collective bargaining negotiations and controversies over wage rates, fringe benefits, salary distortions and discrimination, labor standards in the workplace and other grievances. This is apparent from the fact that almost every state listed in the above schedule has a law on mandatory mediation for labor disputes. Also prominent among several of the said states are legislations regarding mandatory mediation for family disputes and automobile warranties. Incidentally, there is no general federal law that governs definite rules and regulations over the whole caboodle of the mediation remedy. Even the Uniform Mediation Act cannot yet be fully applied to and adopted by all the states of the United States because the individual territories or jurisdictions have their own mediation structures and methodologies. Also, every state has its own unique culture, industry, climate, products and other variables for which each mediation procedure or set of procedures may rather be customized for appropriate applicability. Furthermore, the respective states already have mandatory mediation legislations in place numbering two thousand five hundred all over the country. (Ginkel, Eric van. Mediation under National Law: United States of America. Prefatory note citing the Uniform Mediation Act. [internet].) Legal precedents In mediation cases, legal precedents or case laws cannot set in as far as the intrinsic characteristics are concerned because there is no judgment in the proceedings that determines who the right party is and who the wrong party is. (Are there some cases that should not be mediated Mediation FAQ. LEGAL ENCYCLOPEDIA. NOLO. Legal Solutions for You, Your Family & Your Business. [internet]). Any resolution resultant of the conciliation process has to be decided upon by the parties themselves who consider no winner and no loser in the contest. Everything ends in peace and amicable settlement which the contenders mutually accept. Outside of that, or extrinsically, there can be legal precedents or jurisprudence or case laws which settle certain matters regarding mediation. For instance, the confidentiality aspect of the hearings and of the other incidents of mediation has been put to test in the hierarchy of the courts. A case in point was about the Court of Appeal (of California) ruling that documents used in a mediation proceeding can be accessed in a subsequent litigation. This ruling was reversed by the Supreme Court which enunciated that the confidential nature of documentary evidence is absolute, the subject documents having been prepared for the purpose of that mediation. (GENOVEVA ROJAS, et al. v. SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES. No. S111585. 2nd Civ. No.B158391. [internet].). Another suit which involved a legal precedent in mediation was on the enforceability of a mediation agreement. According to the Minnesota Civil Mediation Act, a mediation settlement document must contain a provision saying that it is binding in order for it to be binding. This was not done although from the acts of the parties it could be surmised that they were bound by the document even as they negotiated for some other settlement proposals during several months. The Minnesota Supreme Court ruled in favor of non-enforceability declaring that the intention of the legislation would be frustrated if the settlement document was to be enforced despite the fact that it did not contain a proviso that it was binding as required by law. The said tribunal further resolved that there was no waiver and that waiver could not be presumed. The United States Court of Appeal upheld the ruling of non-enforceability and of non-waiver in the case as passed upon by the Minnesota Supreme Court. (Ali Haghighi, doing business as International Radio Network v. Russian-American Broadcasting Co. United States Court of Appeals FOR THE EIGHTH CIRCUIT No. 97-1966. [internet]). Scope of federal mediation As listed above, the states with mandatory mediation laws have their specific areas of controversies for the dispute resolution mechanisms. On the other hand, there is federally no concrete organic law encompassing the mediation option as a whole. While The Alternative Dispute Resolution Act of 1998 was passed supposedly commanding the courts to set up and allow the use of alternative dispute resolution processes in all civil litigations, it seems that this law does not have enough teeth for execution and implementation. The choice of when to initiate mediation, for instance, is left to the independent judgment of the respective courts and judges. As a matter of fact, the procedures for mediation proceedings in federal courts are governed by the rules of the locality. The Federal Mediation and Conciliation Service was established via legislation by Congress in 1947 to act as an autonomous government body or office charged with the duty to encourage understanding, cooperation and peace between employers and workers. This is perceived though as tailored for industrial relations disputes. A mediation program was started by the United States Equal Employment Opportunity Commission (EEOC) as an experiment in 1991. The budget of the agency has so far remarkably increased and it has continuously developed and trained internal mediators geared toward handling EEOC claims. Again, however, this is a customized type of mediation as it only caters to equal employment opportunity problems. Federal offices, commissions, agencies and other instrumentalities are given enough freedom to establish and develop mediation and arbitration within the confines of the respective organizations according to whatever procedures, systems and methodologies as may be deemed applicable in managing and overseeing disputes and controversies, either internal or external. All these have been provided for in The Administrative Dispute Resolution Act of 1996 which was enacted precisely anent disputes between agencies and between citizens and agencies or claims against the government. (Federal Mediation. United States Mediation Dispute Resolution Alternatives - Mediation - United States. Mediation. USLEGAL LAWDIGEST. [internet].) Criticisms against mandatory mediation Strong objections against mandatory mediation anchor on the allegation that it is a restraint on the right of the litigant to his right of access to the courts as he cannot opt to avail of the privilege offered by conventional litigation in such manner as he may choose. In a way, it appears to block the access to justice or procedural due process. (Rifleman, Jeff. D. Mandatory Mediation. Implications and Challenges. October 2005. [internet].) The above-cited comment is not altogether valid. It must be noted that while a mediation is mandatory by virtue of the law which gave rise to it, a party is not forced to enter into a settlement during the mediation process if he believes that the result cannot satisfy him or can make him contented. It is true that in case the mediation effort fails, there will be the element of delay. However, that will not be significant or material owing to the expeditious manner by which a mediation is undertaken compared to court suits. Furthermore, the purported restriction against access to the judicial process can be balanced by the presumed advantages of mediation. The disputants in a mediation decide for themselves. The process is therefore one of mutual consent in case of a successful outcome. The mediator is in the middle only to help facilitate or finalize whatever has become the common understanding of the parties to finally patch up their differences and be in peace. There are no stern and fixed rules or procedures. Mediation is just opening the avenue to amicably thresh out things and to ultimately enter into a compromise settlement. It ends the controversy and may even restore strained relations. The adversaries in mediation usually come to agree on acceptable terms due to expressions of feelings and sentiments during the scheduled encounters. They also give and take information between each other which exchanges further enhance renewed rapport. References Ali Haghighi, doing business as International Radio Network v. Russian-American Broadcasting Co. United States Court of Appeals FOR THE EIGHTH CIRCUIT No. 97-1966. [internet]. Accessed November 30, 2009. Available at: http://www.ca8.uscourts.gov/opndir/99/04/971966P.pdf Alternative Dispute Resolution. Superior Court of California. County of Fresno. [internet] Accessed November 2,3 2009, Available at: http://www.fresnosuperiorcourt.org/alternative_dispute_resolution/ Are there some cases that should not be mediated Mediation FAQ. LEGAL ENCYCLOPEDIA. NOLO. Legal Solutions for You, Your Family & Your Business. [internet]. Accessed November 30, 2009. Available at: ) Burgess, Heidi. Transformative Mediation. [internet] Accessed. November 24, 2009. Available at: http://www.colorado.edu/conflict/transform/tmall.html. Conciliation. THE FREE DICTIONARY. [internet] Accessed November 24, 2009. Available at: http://legal-dictionary.thefreedictionary.com/conciliation. Dunlop, John T. and Arnold M. Zack. MEDIATION OF EMPLOYMENT DISPUTES. [internet] Accessed November 24, 2009. Available at: http://www.law.harvard.edu/programs/lwp/people/staffPapers/zack/MEDIATION%20OF%20EMPLOYMENT%20DISPUTES%20dunlop%20and%20zack.pdf. Eric van Ginkel. Mediation under National Law: United States of America. IBA Legal Practice Division. MEDIATION COMMITTEE NEWSLETTER. August 2005. [internet] Accessed November 23, 2009. Available at: http://www.mediate.com/globalbusiness/docs/Mediation%20and%20the%20Law%20-%20United%20States.pdf. Erickson, Helena Tavares. The Top Ten Questions People Ask About Ad Hoc, Non- Administered Or Self-Administered Arbitration. August 1, 2008. [internet]. Accessed November 26, 2009. Available at: http://www.metrocorpcounsel.com/current.phpartType=view&artMonth=August&artYear=2008&EntryNo=8613 . Federal Mediation. United States Mediation Dispute Resolution Alternatives - Mediation - United States. Mediation. USLEGAL LAWDIGEST. [internet]. Accessed November 30, 2009. Available at: Read More