YMG Guest Blog - A Step Back in Time - Emma Anstead

The United States has a long history of mediation.  Even before the new territory was discovered by European explorers, the native Iroquois Nations developed a Great League of Peace and Power to preserve peace between the five Iroquois nations of the Great Lake Region. Following the arrival of the Europeans, the Lenni Lenape people of Delaware were known as mediators and peacemakers and maintained good relations with the new arrivals as a result.

Following independence from the British, George Washington included an arbitration clause in his will of 1799:

“My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by each of the disputants - each having a choice of one - and the third by these two.”

He confirmed that the decision reached was “to be as binding on the Parties as if it had been given in the Supreme Court of the United States.”

Abraham Lincoln was also a proponent of avoiding litigation and promoted negotiation. His advice to young lawyers in July1850 was:

“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.”

Fast forward to the early 20th century and the establishment of the National Mediation Board in 1934. Its aim was to resolve disputes in the railroad and airline sectors. This Commission still exists today and administers mediations and arbitrations for the same industry sectors.

A few years later, in 1947, the Federal Mediation and Conciliation Service was established to provide mediation, conciliation and arbitration services in relation to disputes arising between employers and their employees. Its work continues today.

Commentators often refer to the civil rights movements of the 60s as being the main catalyst for the rise of mediation in the U.S., but, in fact, pressure for change was already increasing in the wake of the Second World War. As U.S. cities grew in size, so did the number of disputes - people no longer knew each other as individuals - and the long delays in getting cases to court made litigation more and more challenging. Increased interstate and international commerce together with improvements in transportation and communication systems also led to an increase in the number and complexity of litigated disputes. Add to an already creaking system the introduction of various federal and state laws establishing new civil rights for women, minorities, workers and consumers and the enforcement of those rights as well as a dramatic increase in the number of disputes arising from the possibility of a ‘no fault’ divorce and related child custody and support and property division and you have a civil justice system in crisis.

And so, in 1976, the Chief Justice of the United States Supreme Court, Warren Burger, convened the Pound Conference to address the issue of increasing court congestion around the country and propose possible solutions for the future administration of justice.

One of the speakers was Frank Sander, a professor at Harvard Law School. In his address Professor Sander proposed a possible solution that is now referred to as the ‘Multi-Door Courthouse’.[1]

Professor Sander understood that the U.S. justice system was not appropriate for all cases. He proposed a system for receiving and analysing each dispute as it arrived (or even before it arrived) at the courthouse. He recommended dividing dispute-resolution processes into a ‘mediational’ phase followed by an ‘adjudicative’ phase and considered greater use of arbitration in the adjudicative phase. He also recommended that there should be a “flexible and diverse panoply of dispute resolution processes, with particular types of cases being assigned to differing processes or combination of processes….” and mentioned the possibility of a Dispute Resolution Centre that directed disputants to the process most appropriate to each type of case.

Other ideas proposed by Prof. Sander included encouraging organisations to develop internal dispute resolution systems and he encouraged law schools to begin teaching methods of dispute resolution other than litigation.

As a result of Prof. Sander’s proposals, the United States Federal Government and all individual States have accepted some form of Multi-Door Courthouse system. Note that the Pound Conference was over 40 years ago. The novel approach suggested by Prof. Sander has been well tested by what is arguably the most litigious nation in the world. It has helped to avoid the collapse of an over-burdened civil justice system struggling with unacceptable delays  for disputants seeking access to justice. Sound familiar?

Until recently, I was living and working in Texas where the first Dispute Resolution Centre opened in Houston in 1980. Today, there are 18 community Dispute Resolution Centres in Texas. It is the policy of the State of Texas ‘to encourage the peaceable resolution of disputes…and the early settlement of pending litigation through voluntary settlement procedures.’[2] It is the express responsibility of all trial and appellate courts and their court administrators to carry out this policy.[3] A court may, on its own motion or the motion of a party, refer a pending dispute for resolution by an alternative dispute resolution procedure. The court shall confer with the parties in the determination of the most appropriate alternative dispute resolution procedure.[4]

If the parties reach a settlement and execute a written agreement, the agreement is enforceable in the same manner as any other written contract.[5]

Familiar rules of confidentiality apply to all alternative dispute resolution procedures.

In practice, what this means is that most Judges will insist on parties attempting mediation before the case can go any further. Parties can choose to find a commercial mediator, however a more cost effective option is provided by the Dispute Resolution Centres which are not for profit organisations funded partly by fees imposed on filing certain civil suits in District and County Courts at Law, partly by user fees, partly by contributions and grants, and partly by contractually defined in-kind services provided by the county.

In the DRC where I worked, a salaried admissions clerk would book the mediation date, obtain the details of the parties and collect the fee. Prior to mediating, only the names of the parties  and their representatives (if applicable) and the case code indicating the type of case (debt recovery, personal injury, commercial contract etc) are shared with the mediator. Cases are allocated a half-day slot.

In most cases, there are two mediators co-mediating. Cases varied from relatively simple debt recovery matters in which the parties were unrepresented to more complex commercial disputes where each of the parties were represented by a team of lawyers. Cases were usually referred by the Judges of the local District Court. The Centre also dealt with a huge number of family-related mediations and offered a mediation service at the local Justice of the Peace Courts.

I’m delighted to say that my Scottish accent was no impediment to mediating in Texas and I was warmly welcomed into the DRC community. However, I was aware of my lack of local knowledge from time to time. A good working knowledge of the court system, and the attitude of a particular judge, was often helpful when reality testing. Occasionally, a greater insight into rural life in Texas was helpful, particularly when negotiations involved exchanging horses and tractors as happened in one case!

It struck me that the ideas being shared by Professor Sander nearly half a century ago, which have proved so successful for the U.S. justice system, are remarkably similar to many of the ideas being shared by Scottish Mediation in their report ‘Bringing Mediation into the Mainstream in Civil Justice in Scotland’, particularly in relation to the concept of a multi-path civil justice system.

On returning to Scotland, I have discovered that significant progress is being made in relation to both raising awareness and attempting to increase the use of mediation. However, compared with the U.S., (as well perhaps as other neighbours closer to home), it seems that the Scottish civil justice system is still lagging behind in its adoption of this useful alternative to litigation. There is clearly good work to be done to follow up and implement the Scottish Mediation report. As I reflect on my experiences in Texas, I really hope that the commitment to and widespread use of mediation which I experienced there will soon be followed in Scotland. Perhaps I have seen a glimpse of the future?

Emma Anstead, Mediator, May 2021

[1] Frank E A Sander, Varieties of Dispute Processing, 70 F.R.D. 79 [1976]

[2] Section 154.002 of Chapter 154 of the Texas Civil Practice and Remedies Code

[3] Section 154.003 of Chapter 154 of the Texas Civil Practice and Remedies Code

[4] Section 154.021 of Chapter 154 of the Texas Civil Practice and Remedies Code

[5] Section 154.071 of Chapter 154 of the Texas Civil Practice and Remedies Code