What makes a good judge a good JDR judge? We know training and temperament are important. The ability to handle complexity is also essential and can include reading stacks of material, sorting through challenging facts and maneuvering between difficult attorneys. We begin with The Falling Rocks Case to illustrate how a seasoned judge settled an unusually complicated, decades-old lawsuit. We then review several other cases to pinpoint how good JDR judges handle the complexity of the JDR process.

The Falling Rocks Case

This case study involves a large city building with elegantly designed glass panels, wind, blowing rocks and allegations of nuisance and multiple defenses, such as the claim that an act of God explains the situation. The litigants include the city, the building's owners, the consulting engineers, and eventually the architects who designed a beautiful glass-heavy building. The lawsuits included an allegation that lawyers never want to see: limitations of action. The parties and their attorneys represented the city, the insurers, the building owners, the consulting engineer and the architect.

A storm passed through the city and allegedly blew rocks off the roof of a private building onto the city hall, damaging several expensive class pyramids. A year and a half later, the city advised the building owners to take immediate action to keep it from happening again. A few years after that, another storm blew more rocks onto the city's glass pyramids, breaking over one hundred panels. The city more or less looked the other way, but ten months later, still another storm broke more glass panels. That triggered the first lawsuit.

After hiring an expert to investigate, the city charged negligence in the design, inspection and replacement of the roof. It also charged nuisance for allowing the rocks to accumulate and sought an injunction requiring the building owners to remove the blowing rocks or make repairs to avoid any damage to the city hall again.

The building owners were angry, asserting that the lawsuit was “embarrassing and vexatious.” They denied all responsibility, claiming they had acted properly and alleged that the city either had purchased inferior glass panels or that the panels were installed improperly. Finally, claiming an act of God caused the damage, the owners asked the city to repair the owner's building if an injunction was issued.

Introduction to Part 3

Civic (and civil) discourse is the grease that lubricates the gears of democracy. For Americans to respect, deliberate, and transact with one another, we must communicate meaningfully in both public and private domains. In the preface to this book, I discussed what this type of communication entails and why I have sought to promote and practice it. The moniker “militant moderate” simply attests to the importance I ascribe to this kind of communication and why I believe that the future of our sacred democracy depends on it.

This Part features thirteen articles, most of them op-ed pieces, which seek to bring these abstract notions down to earth. Some of these articles address general features of civic discourse. One, written before pandemic and inflation struck us, is the widening gap between the norms and practices that prevail in our politics, on the one hand, and those that prevail in our civil society, on the other. I explore this growing gap in one essay and in another articulate principles that can guide us in closing this gap. Another feature of our discourse is the paucity of what I call public courage and clear thinking especially about topics that tend to rile us up or engender our discomfort. One piece explores this problem in the context of sexual harassment conflicts. Another takes up the “tribal politics” phenomenon, by which I mean disputes that tend to divide us decisively along recurrent, tenaciously-held lines.

Several essays take up what has come to be called “cancel culture.” Here, one's offense at a perceived practice or belief is taken as a license to simply dismiss or defame those who are thought to engage in that practice or hold that view. I present several examples of this. One particularly toxic example is the routine attribution of “systemic racism” to opponents or even to passive bystanders. This charge often serves as a conversation-stopper, a subject-changer, and a categorical dismissal of competing views. My longish essay on systemic racism, and a short, slightly overlapping one on the distinction between racism and racialism, together seek to dispel these destructive effects on a desperately needed public debate over the causes of continuing black disadvantage.

Introduction to Part 5

Higher education institutions are, or should be, a central element of a liberal, discursive, truth-seeking society. The ones that I know best—Yale, where I taught for 35 years, some where I visited to teach, and the many others that I read about as an interested intellectual and observer—proudly proclaim their fidelity and commitment to these values, which are celebrated in the book by my colleague Anthony Kronman that I review here. But the countervailing pressures—political correctness, sheer cowardice, an earnest desire to mollify agitated students, fear of how negative publicity might affect alumni and other attentive constituencies, and other such considerations—coalesce to create conditions that are inimical to straight-up truth-telling.

Several of the pieces that I present here focus on some all-too-representative instances of these moral evasions and compromises. One weighs in on a widely-publicized imbroglio at Yale in which agitated students confronted and harshly denounced the faculty leader of a residential college (traditionally dubbed the “college master” but officially renamed “head of college” in 2016), ostensibly because his wife had circulated a mild suggestion about how students might better respond to Halloween costumes that offended them. Another article asks where the “adults in the room” are when free speech values on campus are under concerted attack, while another criticizes university leaders who cravenly follow student groups’ political demands to withdraw invitations to distinguished commencement speakers.

Notwithstanding these administrative and moral failures, however, I explain in another piece why universities are probably better equipped than the federal government to design policies concerning sexual assaults on campuses, while at the same time calling attention to the authoritarian excesses of some university leaders, using Valdosta State University as an example. I present a shorter version of my extended case against race-based affirmative action in colleges and universities—a topic I have studied and written about for more than two decades. (I do favor economic need-based preferences.) The Supreme Court is expected to rule decisively on this issue in June 2023.

I am pleased and honored to have been asked to offer a brief foreword to this important new book on the experience, practice and possibility of JDR.

Irrespective of country of origin, lawyers in the Western tradition have long understood the civil action as critical to civilized co-existence. For us, a claim brought before an independent arbiter, expert in the law, is civilization's substitute for vengeance and therefore essential to social order. Our fellow citizens look to the decisions of courts to learn how the law applies to the citizen, so that they may order their conduct and affairs so as to comply with the law. Through the independent operation of the courts, society also orders itself in the certain knowledge and belief that all can have a remedy for a wrong, and that no one, no matter how powerful, is above the law.

For decades, however, and for various reasons, the law's capacity to discharge this function in a timely and accessible way has been constrained. Resourcing is limited. As a result, courthouse construction and judicial appointments have not kept pace with population increase. The law governing many areas of private activity has become more complex, and trials have lengthened as a consequence. Family litigation has proliferated in a system that was not designed with families in mind. The cost of legal services is prohibitive for most people. And criminal justice, with its constitutional imperative of a speedy trial, (quite rightly) tends to receive the highest priority.

Those of us who still militantly believe in justice and in the system that administers it should hope and press for brighter days. Unless all have reasonable access to justice and, where necessary, to the civil action, we risk finding ourselves living in a society where the strong and well-resourced will always prevail over the weak. Hence Chief Justice Dickson's caution, over 30 years ago:

The stakes, therefore, are high. A system key to preserving and advancing civilized society is at risk of failing those whose support sustains its public legitimacy.

This chapter continues our discussion of JDR SPECs (Specialized JDRs) as described in Chapter 16 from the perspective of trial judges who do SPECs. We are interested in why judges might want to take on SPECs, which are unusually difficult JDR assignments.

SPEC JDRs started in Alberta around 2015 when the then-chief justice asked one of his experienced JDR judges to tackle some of the court's most difficult and time-consuming cases slated for several months’ court time. In preparation for the SPEC JDR, the judge called the parties into open court to propose this special JDR and to help him create tailor-made procedures, such as identifying the most critical pieces of evidence and considering if the parties wanted a “minitrial” within the JDR. This collaborative approach, particular to each case, meant each SPEC had slightly different procedures. They took longer than typical JDR cases—running about three days—but like typical JDRs, the settlement rates were very high, exceeding 80 percent.

As discussed in the previous chapter, SPECs are directed at resolving complicated litigation involving parties who have been in a serious disagreement. Given the amount of work involved, why would a judge want to be assigned to such a case, or be added to a SPEC roster? The answer is not immediately apparent. First, such cases have probably been in litigation for many years, often including appeals and returns to trial court; the record can be voluminous. Some SPEC cases include upwards of 100,000 pages of discovery and written and oral depositions; a judge's workload can be quite onerous. Second, the preparation time required is extensive especially when complicated by the fact that jurisdictional lines have been crossed.

JDR has evolved to handle challenges like these, but the work depends on the abilities of the SPEC JDR judge. A SPEC process might involve both a hearing and a mediation, or both. SPECs are almost like conducting a mediation, negotiation and trial all at the same time. There are opening and closing statements as well as witness statements that can happen all at once, with none being available at the beginning of the trial. SPECs are time consuming and the energy required of the judge is substantial.

Introduction to Part 6

I have long been deeply interested in the history, sociology, economics, and policy surrounding immigration. More than perhaps any other nation, the U.S. has been shaped by it. But the cliché that we are a nation of immigrants conceals the deep divisions and bitter struggles that Americans have experienced from the very beginning over questions of who may join our society and under what conditions. In my writings, I have always been very pro-immigration, including endorsing larger legal immigration quotas, expanding refugee admissions, designing generous legalization programs for many of the undocumented, and securing our borders as a necessary condition for such reforms.

In this Part, I include three articles that shed light on these most fundamental questions about the nature of the American polity. The first is a very recent analysis of certain aspects of immigration policy that are shaping partisan conflicts over illegal migration. It focuses on what the Biden administration and Democrats in Congress can do to advance an agenda that could possibly loosen the policy logjam. The second piece is about birthright citizenship—the legal rule that anyone born on U.S. soil, even if the parents lack legal status here, is nevertheless automatically a U.S. citizen. In a highly controversial book on the subject published by me and Professor Rogers Smith back in 1985, we argued that this rule violates the consensual principle underlying the Citizenship Clause of the 14th Amendment. The American version of birthright citizenship is more absolute than that of probably any other country today and has long been criticized, most recently by President Trump, but even he did not seriously challenge it—although many other liberal democracies with birthright citizenship are narrowing its scope to address the challenges presented by large-scale illegal migration. My article establishes the context of this controversy and proposes a novel solution.

The final article – the longest in this collection – presents an innovative proposal that I advanced many years ago designed to resolve, or at least ameliorate, the tragically chronic and steadily growing refugee flows throughout the world. The problem has only grown worse since 2015 when I updated the article. At the end of 2022, the World Refugee Survey reported over 100 million refugees, which does not include the millions displaced since then by the war in Ukraine.

JDR, in one form or another, has been around for hundreds of years. The earliest examples involve Anglo-Saxon adjudication and arbitration that took place between the seventh and eleventh centuries A.D. (Sanchez 1996). In more recent centuries, judges have been called upon to settle, not adjudicate, all kinds of disputes, especially within families. In Canada, for the last thirty years, mini-trials (without juries) were promoted by the late Alberta Chief Justice William Ken Moore (Moore 1995). Throughout the 1980s, in both Canada and the U.S., the legal system placed increasing emphasis on what based on Frank Sander's ideas was coined as “the multi-door courthouse” and Judith Resnik called with some critical bite “the managerial judge,” encouraging the use of ADR to move cases off the court's docket (Sander 1979; Resnik 1982, 1995).

Sander's idea had an impact in the U.S. In 1980, Congress passed the Dispute Resolution Act “to provide financial assistance for the development and maintenance of effective, fair, inexpensive, and expeditious mechanisms for the resolution for minor disputes.” Then, in 1983, the Federal Rules of Civil Procedure were amended; Rule 16 endorsed the discussion of settlement at pre-trial conferences encouraging the parties to think hard about whether their dispute would be better resolved through voluntary resolution mechanisms than formal litigation.

The history of JDR in Canada is still an unfolding story aimed at imagining ways of empowering judges and parties to resolve their disputes and achieve a greater sense of justice.

The goal in a JDR remains to resolve a legal matter without consuming the usual level of court resources, while giving control back to the parties, control they relinquish when they choose to litigate. Giving the parties more authority and ensuring that they are treated fairly and respectfully is often the key to a greater sense of closure and satisfaction.

Anglo-Saxon Beginnings

In Valerie Sanchez's history of early ADR, she notes that Anglo-Saxon courts used a wide array of dispute resolution mechanisms akin to modern-day negotiation, mediation, arbitration and JDR. The emergence of Christian teachings paved the way for less vindictive conflict resolution that focused more on achieving peace.

Several studies suggest that ADR produces levels of satisfaction not achievable through other forms of dispute resolution (Sander 1996; Susskind 1995). This is likely due to ADR's lower cost and more rapid results. Mediation, in particular, engages the parties directly and gives them control over the outcome—something litigation does not do, in part because parties must speak through their counsel and cannot have a normal conversation with the judge. Private caucuses in JDR allow parties to speak directly and confidentially with the judge and with each other.

JDR usually moves the judge and the parties out of the courtroom to another part of the courthouse. It shuts down most fault-finding and avoids the airing of private grievances in a public setting (which often triggers escalation). JDRs are off the record, unlike normal courtroom proceedings which are taped or transcribed. Avoiding the trauma of cross-examination on almost every personal detail, including one's ability to parent, increases the odds of restoring family unity. Our JDR case studies show how voluntary agreements can arise from highly emotional contexts. We now look closely at a family law case, originally battled in court, but finally resolved through JDR.

Summary of The Divorce Case

The couple with two children were in a marriage that began to unravel. Dad filed first for divorce only a few years into the marriage, and mom filed soon thereafter, each seeking judicial resolution to settle several matters. Claims presented in affidavits and court filings sought a declaration of divorce, child support, clarity about parenting time, and a division of matrimonial property.

The parties received an interim court order calling for shared custody of their son, who would be with dad every other week. That worked until dad's work schedule changed, requiring him to commit to two weeks on and two weeks off. For a while, the parties managed to live within the new schedule; inevitably, though, disagreements arose. With nowhere else to go for help, the parties headed back to court.

Mom wanted to return to the terms of their initial court-ordered agreement, abandoning the informal arrangement they made when dad's schedule changed. In response, dad filed an application in court to officially amend the order to reflect his new schedule.

A little-known way to get litigation into the JDR program is to simply write to the chief (or associate chief) justice and ask to have a case resolved by a senior judge in a special JDR hearing. In Alberta, such JDR case assignments have become known as Special Judicial Dispute Resolution (SJDRs), or SPECs. If the chief justice agrees, the next step is to have the scheduling manager allocate time for a senior justice to conduct the SPEC. In Alberta, this practice is fairly common and saves a great deal of trial time. This chapter explains how and why the chief justice asks a senior judge to do special JDRs ad hoc. Chapter 17 gives examples of real SPEC cases and how they resolved.

In pre-SPEC days, when the chief justice asked a senior JDR judge to take on a challenging case, it was one that would take at least three to four weeks of trial time. SPECs became the label for the most difficult cases, flagged for being in and out of motions court, special hearings and even trials to appeals and back again. They tend to involve numerous counsel and claims in the millions of dollars. It is not uncommon for such cases to actually take a decade to complete. So, but for the success of JDR SPEC, the trial time allocated to these difficult cases has been measured in years.

The triaging and docketing of SPEC cases depends on several metrics: heightened animosity between parties, or counsel; the amounts at stake in the controversy; the weeks of trial time likely to be required; the stress on judicial resources at the time; and other unique considerations like the involvement of third parties, counterclaims and multiple jurisdictional complications.

At the outset, the chief justice, or senior judge (on their behalf, with approval of the chief justice) writes a letter to counsel stating that a SPEC justice had been assigned to their case by the chief justice and inviting them to a one-hour court meeting to discuss and develop the SPEC procedures that will be used.

With input from the parties, the SPEC justice tailor-makes the JDR procedure, aiming for something between a normal JDR and a full-fledged trial.

Much has been written about confidentiality in ADR (Kovach 2005; Chatterjee and Lefcovitch 2008; Shiravi and Javad 2017). It is the bedrock of successful, informal problem-solving and fosters open discussion. Confidentiality is critical in JDR for a number of reasons, some of which we discovered in our research cases. In The Falling Rocks Case, we found that both attorneys and parties rely on confidentiality going into a JDR: ”.… Confidentiality, always a priority for the attorneys, was of primary importance for the insurance company's counsel: if the case went to trial, the claim would be publicly disclosed and it would likely provide a potential benchmark for future insurance claims. That scenario would not be in their best interest, so their counsels had a strong incentive to settle.”

Confidentiality in JDR eliminates precedents and that impacts judges, as well. Judges routinely rely on precedents in applying the law to their decisions and even finding the goalposts for assistance in JDRs. Wearing their settlement hat as a JDR judge, they may not seek advice or talk to anyone—including their colleagues—because they could later serve as trial judges if the case does not settle at the JDR. This isolation is important for the preservation of privacy reasons discussed in this chapter and referenced in The Motor Vehicle Case: “Confidentiality was a significant factor in this case. It meant that the justice could not be as transparent as she might have liked when strategizing with other justices about the best way to approach this JDR. Nonetheless, she preserved the conditions necessary for the parties to move forward with a fair trial and impartial justice.”

Although confidentiality brings challenges—including the constriction of legal precedent—it serves a vital role in helping parties come to resolution. Again, referring to The Motor Vehicle Accident Case, we identify the obstacles to confidentiality but more importantly, we learn why it brings about settlement opportunities when judges and parties are free from the encumbrances of precedent:

What types of judges should or should not be asked to deliver JDR services? If we think of judges primarily as rule-followers, then those who know how JDR is supposed to work ought to be able to do the job. Should we assume that all judges who have had basic mediation and facilitation training will be successful JDR judges? Or, are temperament and attitude toward ADR as important as legal background and a rule-following orientation? In our view, only some judges have the appropriate temperament, attitude and necessary skills to conduct successful JDRs. Both knowledge about JDR and learned skills are essential, but so are the right temperament and attitude.

Why Talk about Types of Judges?

A “type” refers to a group that shares one or more common characteristics. Since JDR is a complex activity requiring active listening, considerable empathy, open-mindedness and a positive attitude toward empowering parties to settle their own disputes, we can divide judges into three groups vis a vis JDR: those who do not have either the necessary skills or the right temperament to practice JDR; those sufficiently skillful and temperamentally suited to provide JDR; and those who are appropriately skillful and temperamentally suited, but not interested in providing JDR. We think it is important for senior judges, court administrators and ADR trainers to know which judges are in which category. Just offering additional training to judges of the first and third types won't guarantee that they can deliver JDR services effectively.

This doesn't mean that JDR skills can't be taught, but skill training won't transform a judge with the wrong temperament or no interest in delivering JDR services. As Carrie Menkel-Meadow once put it more generally with regard to lawyering skills, “we aim to improve lawyering, yet, in doing so, we must take into account what lawyers are actually doing” (Menkel-Meadow 1993). We can extrapolate this to JDR: the aim is to improve the administration of justice, not just reduce the workload of the court. That means that judges must be able to mediate effectively in each JDR case that comes before them. But before that is possible, we must be sure that the right types of judges are assigned in the first place.

Is JDR Fair? Is it Just?

If we see that someone was robbed or killed without the perpetrator punished or the victim compensated, we say, “this is unjust.” And yet, when we are asked to define or explain the essence of fairness or justice, we find it hard to answer. We are unsure whether notions of justice are unique to individual actions or apply equally to institutions, laws, policies, or all of the above.

To answer the question of whether JDR is fair or just, we need to first grapple with its competing definitions. We will then couple a theoretical view of justice with the views of the parties in one of the actual JDR cases described in the appendix, The Motor Vehicle Accident with Pedestrian Case (The Motor Vehicle Case). Our goal is to show what justice looks like in practical terms.

The first distinction we want to make is between justice in the narrowest sense and justice in a broader sense. In the narrowest sense, it is a characterization of a decision made through the legal system—read litigation—following established rules and procedures. For people who define justice in this way, it is impossible to think of it being determined outside the legal system. For them, ADR or JDR could not possibly be a means for determining justice; they see justice as only what a court generates through a particular kind of battle. In ADR and JDR, the assumptions are different: the justice system is not a battleground where a pre-appointed judge makes a unilateral decision. JDR, specifically, opens a space for the disputing parties to generate a resolution of their differences with the assistance of a mediating judge. Whether the JDR process is fair or not, justice in the narrowest sense cannot be the product of a JDR process.

Justice in the broad sense, though, need not be linked to the judicial system. Broadly, it is the product of actions, institutions, policies and laws in a wide variety of contexts. It is not determined universally; it is generated contextually. As an illustration, “just” might be applied to a public policy decision aimed at allocating resources to different segments of the community (distributive justice). Or, it might be a way of characterizing an act of government aimed at punishing those who have harmed others (corrective justice or retributive justice) (Aristotle 1962, 2000).

We have reported on the outstanding success of JDR in Canada. Our findings should encourage those in positions of power and responsibility to expand the availability of JDR both in terms of SPEC for complex cases caught for years in the vortex of the legal system, as well as JDR more generally because it enhances the quality of justice, reduces the cost of funding the judiciary, and speeds the disposition of legal claims.

JDR enhances the quality of justice in seven ways: (1) it gives plaintiffs and defendants more control over the outcome of the disputes; (2) it allows cases to be treated as the unique matters that they are, rather than pinning results to precedents set in other places and times when the circumstances may have been only somewhat similar; (3) it takes full advantage of the knowledge, skill, and stature of judges, but still leaves matters in the hands of clients and their lawyers; (4) it seeks to maximize the value to both sides in every legal dispute, rather than just picking a winner and a loser; (5) it improves relationships between the parties; (6) it gives certainty of result to the parties who might be experiencing unmanageable ambivalence about a conflict and (7) it preserves and sustains the public's faith in legal institutions as sites where peacemaking is fostered and conflicts are resolved.

In the long run, JDR builds citizens’ capacity to deal with their very personal and emotional differences in peaceful and collaborative ways rather than increasing the litigious nature of society. JDR certainly makes sense in a wide variety of family law and other civil suits and it could help in some criminal matters as well, especially in terms of sentencing (building on the restorative justice and Aboriginal justice systems) or diversionary programs.

Decisions to expand Canada's JDR system are completely in the hands of the chief justices of the various provincial and national courts. Under the banner of improving case management, they can build on JDR's advantages; no further legislation is needed from Parliament. As JDR grows, some lawyers might have to make adjustments in how they practice and bill for time, and they might have to acquire continuing legal education to bring them up to speed.

Facts

On a spring day in the late 1990s, three individuals drove a grain feed truck on or near the Happy Valley Farm Ltd. in central Alberta. The truck was mounted with an unloading auger which, when extended, carried feed out of the truck bed through its spiral shaft. While driving underneath power lines, the still-extended auger—usually retracted during transport—collided with the lines, damaging them. Happy Valley hired a journeyman electrician to repair the damage. To access the lines, he climbed a nearby power pole, which suddenly broke and fell on top of him.

As a result of the fall, he fractured his left pelvis and right elbow. He also suffered major contusions and additional minor injuries. The injuries required several surgeries and extensive physical therapy. On top of the expenses and lost income related to medical care and rehabilitation, as well as the damages associated with his pain and suffering resulting from the fall, he alleged that his injuries inhibited his ability to perform basic household tasks, leaving him dependent on the assistance of others. Further, he claimed that the lasting effects of his injuries would render him unable to fully compete with his healthy co-workers, disadvantaging him professionally and limiting his opportunities for future advancement. Because his injuries were sustained on the job, he received some disability benefits from the Workplace Compensation Board (WCB), a provincial agency responsible for administering disability insurance. These benefits were limited, however, and terminated several months after the accident.

Seeking to recover damages, the electrician sued Happy Valley, claiming that the farm, as owner of the property on which the power pole stood, had been negligent in ensuring the premises were reasonably safe for visitors. In particular, their failure to inspect the pole, take necessary steps to ensure its safety, and to warn or advise the electrician of the risk, led to his injuries. In total, he claimed nearly $7 million in damages.

Because he was injured on the job and received WCB benefits, the electrician's claim was limited by the WCB legislation. Therefore, he had to withdraw the claims he had originally filed against the three individuals for damaging the pole in the first place, because the legislation prohibited suits against other individuals covered by WCB legislation (i.e., other employees).

Judges are extraordinarily busy, and perhaps due to a lack of time or because they take their titles too seriously, they sometimes walk into a JDR room and immediately begin mediating. Without an adequate intake interview, a judge not only risks misunderstanding the most important concerns of the parties but is disrespectful to the clients—unacceptable in today's expanding world of access to justice.

The British Columbia Court website provides a counter example, as well as resources to help clients prepare for mediation. It also allows the court to initiate an intake meeting—a vital component in the process that increases the odds that JDR judges will be properly prepared to mediate.

Intake is actually the first part of a JDR. It is a highly interpersonal meeting between the mediator and the parties; often the first moment at which we are able to begin to create that positive energy. When someone reaches out to you as a mediator, you begin to share who you are, your practice and the process. In exchange they share who they are, what they’re experiencing in their lives at that moment, and what they hope, expect, or possibly fear will happen in mediation. When this important first dialogue is positive, you begin laying the foundation for what will hopefully be a successful mediation (Brill-Case 2015).

One mediator asks this of the intake experience: “How can they make the disputants comfortable, set out the process, start the disputants on the right track, and yet not take so much time that everyone becomes bored or frustrated?” (Stitt 2003).

The mediator must set the tone and create an atmosphere that is conducive to settlement. He or she must set the table figuratively as well as literally, creating a comfortable and positive tone for the disputants by proposing a structure that encourages them to participate.

This may be the first opportunity for the disputants to meet the mediator, who will try to earn the disputants’ trust in both the mediator and the mediation process. The mediator will also attempt to calm the emotions and nerves of disputants who may be anxious about the process and outcome (Stitt 2003). Judges admit that while in court, when proceedings have started, they have a hard time assessing demeanor and body language.

Years ago, we suggested that certain public disputes should not be mediated (Susskind and Madigan 1984). We pointed specifically to situations where:

• 1. Parties are too numerous, diverse, or hard to identify;

• 2. Access to dispute resolution services is difficult for some of the parties;

• 3. The outcome is dependent on controversial value judgments while a community mandate or consensus might be most useful;

• 4. The community at large clearly cares about the outcome;

• 5. Implementation of a negotiated agreement could be readily blocked by a dissatisfied party.

In these situations, it makes more sense to depend on adjudication through traditional regulatory or legal mechanisms. Nevertheless, that still leaves a great many public disputes that can be mediated (Susskind 2006). These cases would probably not make their way to court, and thus private mediation rather than JDR would be the most likely source of attempting resolution. However, if a public dispute (in which one party is a public agency) did make its way to court, and none of the five conditions listed above applied, we believe JDR could be used to resolve the matter just as well as private mediation.

In the family law area, as we pointed out in Chapter 6, certain classes of cases should not be mediated either (Clarke and Davies 1991).

• 1. [W]here the parties are hoping to gain some tactical or strategic advantage which is not related to the subject matter of the dispute, e.g., to delay proceedings, or as a fishing expedition to gain information.

• 2. Where domestic violence or fear of violence is suspected;

• 3. Cases involving child abuse or sexual abuse;

• 4. Where the parties are so conflict-ridden they are incapable of considering the dispute between them apart from their own feelings (i.e., the “all or nothing” dispute);

• 5. Where one of the disputants is so seriously deficient in information that any ensuing agreement would not be based on informed consent; or

• 6. If the disputants reach an agreement which the mediator believes is illegal, is damaging to a third party, is grossly inequitable to one of the parties, or is the result of bad faith bargaining, the mediator should terminate the mediation but might not have the power to do so.