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Article Excerpt
INTRODUCTION
This Article offers a granular, first-person view of cross-cultural dynamics in small claims court mediations in a metropolitan area with a population of one million people. It presents a four-year qualitative study of mediation processes in 125 cases involving minorities, drawn from studies involving about 300 cases. The study suggests three findings related to the long-running debate over the role of race in mediation: (1) minority status in terms of ethnicity, race, or national origin may not matter as much as gender; (2) neither gender nor ethnicity, race or national origin may matter as much as socio-economic class; and (3) a well-constructed, constantly monitored methodology for mediator training and supervision may assure fairness in many small claims cases, so long as the mediation is understood as an adjunct to the judge's role, not as a replacement. This review synthesizes multiple perspectives of case management, academic research and pedagogy as derived from my own experience, but speaks only on my behalf, not the mediation program examined.
For this Article, I reviewed some 300 mediation clinic small claims court analyses presenting law student mediator observations on the theme first published by Professor Richard Delgado and other critical race theorists. Should minorities be discouraged from participating in mediation because they are unlikely to achieve fairness in an informal process moderated by a third-party neutral arbitrator? Should minorities instead look to the formal process of litigation, relying upon the judge to assure fairness? (1)
These questions become more than merely academic once those concerned about judicial administration consider access and fairness as a function of the design and funding of case management systems. The "real world" iteration of that academic debate becomes: At what cost are cases diverted from public court rooms presided over by judges to mediations conducted behind closed doors with third-party neutrals? Traditionally, the success of such court-referred mediations is measured in quantitative terms of overhead costs saved and dollar amounts settled.
More difficult to assess is the qualitative success of court-referred mediations, capturing the subjective sense of justice in these out-of-court processes. For thoughtful program designers and users, the issue--particularly concerning persons who appear pro se--becomes whether the dynamics of race prejudice outweigh the touted benefits of flexibility and party self-determination?
The confidential nature of mediations generally thwarts attempts to understand the subjective experience of this particular legal process. The usual design of litigant mediation does not allow for the transparency needed to gather research ordinarily available to persons scrutinizing the dynamics of court room processes. Mediation's inherent opacity leaves scholars and policy-makers with little contemporaneous information about mediation's ostensible forte: guiding communication between parties in a manner designed to reduce personal conflicts in a litigated matter, thus opening the parties to craft a resolution offering a better (or more enforceable) alternative than the parties believe they would obtain through the judge's decision.
Various scholarly approaches have been taken to deal with these problems inherent in trying to analyze mediation. Some have developed hypothetical stories to illustrate particular thematic issues. (2) Another option has been to identify a handful of actual cases, remove identifying names, and use them to illustrate specific theoretical points. (3) At the other end of the spectrum we find a scant number of statistical studies, which--by their very nature--offer little insight concerning the ebb and flow of verbal and non-verbal cultural cues, situational context, and contemporaneous awareness of a theoretical framework. (4) The law student reports summarized in this Article describe a view from the middle ground, drawn from more than 125 cases involving minority parties or mediators. The mediators changed from year to year, as did the parties, but the cross-cultural foci in the mediator reports remained the same. This Article uses these clinical analyses of session dynamics to inform theoretical analysis, rather than the reverse. This review focuses on qualitative empirical experience rather than quantitative empirical measures, and makes no claim to statistical validity.
Part I of this Article provides background information regarding a classic line of debate concerning race and mediation process design. The Article then identifies how the Oklahoma Supreme Court's mediation program has confronted the major objections raised by critical race theorists through court rules that make concern for actual and perceived fairness a cornerstone of the mediator's ethical obligation. To assure that this principle becomes more than mere hortatory language, the court-connected program has institutionalized behaviors designed to curtail prejudice through practical instruction from the following: a standardized court mediator training manual; a court-sponsored process for mediator supervision; continuing mediator education to reinforce program best methods; party feedback on satisfaction with services rendered; and an administrative mechanism offering parties a venue to enforce claims of bias in the mediation process.
Part II begins with an overview of the project design and the mediation clinic where the multi-year analysis was implemented. The student reports analyzed elicited observations testing cross-cultural theories about mediation. Part II summarizes the responses grouped around themes that emerged from the research material. This offers a deeper, richer view than most studies to date, but cannot provide parallel details directly from the parties. Recognizing this limitation, Part II identifies trends in these mediator observations, allowing the "voice" of the participants to speak whenever possible, without jeopardizing anonymity.
Part III concludes with an examination of the preliminary lessons learned in this four-year experiment. These findings indicate new layers of complexity in the evolving structures for court-connected mediation. The alternative dispute resolution ("ADR") field has awakened to the fact that the standard model of mediation assumes a balance of power between the parties, and that this is a false assumption in most small claims court cases, particularly in urban areas. If a court-connected mediation program seeks to be a vehicle for justice, it must consider power imbalance not only in terms of racial or ethnic demographics, but particularly in terms of socio-economic class. Further, court administrations must identify cross-cultural issues broadly and make non-bias a meaningful priority in the selection, training, and supervision of mediators. Lastly, while mediators can be trained to identify and accommodate cross-cultural differences in perception and presentation, the capacity to redress serious imbalances of power due to culture or class requires the active involvement of an attorney or judge.
I. THE CRITICAL RACE THEORY ("CRT") CRITIQUE AND RESPONSE BY THE OKLAHOMA SUPREME COURT'S EARLY SETTLEMENT MEDIATION PROGRAM
A. The CRT Critique
1. The Classic Race-Oriented Critique of Mediation
In 1985 Professor Delgado cautioned against wide scale adoption of mediation pursuant to a doctrine that privileges peace--court-referred mediation that is ostensibly voluntary--over justice. (5) This view remains consistent with that of many other scholars during the period examined in this Article, who do not claim a race-oriented critique. If a so-called "multi-door court house" values fairness, court dockets cannot consider mediators to be fungible with judges. Each brings different skills to different cases, and dockets should be managed with recognition of those differences. (6)
Delgado took this a step further, arguing that if ADR is to grow "consistent with goals of basic fairness," the growth must be shaped according to measures that look primarily to the potential for racial prejudice. (7) Race was deemed sufficiently pervasive and invidious as to overshadow most other considerations, (8) To raise awareness about the need to address racism in proposed multidoor court house projects, Delgado urged that areas of law and types of ADR be grouped to identify where "the dangers of prejudice are greatest." (9) Those cases should be directed solely "to formal adjudication" on the assumption that only a judge working with attorney advocates speaking on behalf of minority parties can protect against racism.
Delgado acknowledged the possible existence of cases where the risk of racial prejudice might not be "so great as to require an absolute ban." Still, he argued that "checks and formalities must be built into ADR to ameliorate those risks as much as possible." (10) Then and now, this classic race-oriented critique posits that formal adjudication offers mechanisms of civil discovery, long-arm jurisdiction, and discovery administered through trained judicial temperament that "may equalize power and opportunity among litigants."(11) Yet, simultaneously, CRT challenges the American trial system as being fundamentally biased against racial minorities. (12)
Delgado's article noted a vital limitation that he and subsequent others have relegated to the sidelines of the debate. In his comparison of formal adjudication procedures with mediation process dynamics, he considered "only the safeguards afforded parties when their dispute actually goes to trial." (13) This assumes no safeguards exist for the overwhelming majority of cases that, as Delgado acknowledges, "do not go to trial, but are settled" and indeed Delgado condemns settlement negotiations as "relatively unguided and incapable of promoting public goals of the law." (14)
2. The Jurisprudential Debate: Micro & Subjective vs. Macro & Objective
Delgado is far from alone in this particular critique of ADR. Contemporaneously with the publication of Fairness and Formality, (15) Professor Owen Fiss cautioned that ADR has the long term potential to weaken the public institutions of justice. Fiss' Against Settlement built a lasting theoretical framework to assess the balance between private ordering and public goals, (16) which Delgado addresses briefly but does not incorporate in some of the most important ways. (17) Delgado ignores the compelling fact that the array of procedures both he and Fiss argue for in public adjudications only come into play when parties have sufficient financial resources. This, by definition, excludes most of the low status parties Delgado ostensibly seeks to protect.
The overarching debate represents a tension in American jurisprudence. As alternatives to court room litigation have grown, concerns about the eventual status of the structure of law may increase. Does the private ordering of mediation undermine the public function of the law?
A macro interest in the system as a whole requires that law be interpreted and applied in public venues using formalized, predictable structures. The judiciary's pronouncement of legal principles in an open forum sets and affirms precedents, assuring the rule of law. Thus, if common law veers too far out of line with the will of the people, as articulated through statutory law, the legislative branch can formulate suitable amendments. Similarly, law made in the open venue of a courtroom carries the enforcement powers of the state, requiring compliance irrespective of a party's personal preference. Such compulsion may prove essential in order to protect the interests of unpopular or less powerful parties. It can also be crucial to execute changes in social policy where the law articulates a change in acceptable conduct. Hence, behaviors that formerly were marginally tolerated or merely admonished as moral misconduct, such as sexual harassment, become subject to legal consequences.
Paradoxically, this objective vision of the law's potential often collides with the subjective needs of the parties; even, or most especially, parties lacking the financial resources to access the grand system of justice described in the preceding paragraph. Although the system has been worked and re-worked to protect the interests of the less powerful members of society, that same class status makes it more difficult for them to afford the attorney representation necessary to receive the benefits of formalism. The individual's needs may revolve around a subjective sense of fairness, based on the dignity with which they were heard and whether the proceedings resulted in a pragmatic solution to their problem.
These two perspectives need not be wholly at odds with each other. The rule of law can play a role on the micro level, providing a less powerful party leverage such a party would otherwise lack. The crucial component is knowledge: the parties must know what protections the law affords and what documentation is required to substantiate claims or defenses under the law. While the mediated settlement may not be expected to conform to the strictures of the law, the law nevertheless provides appropriate guidance when parties' concepts of moral conduct are misaligned.
How do parties gain this pivotal knowledge? Through the literacy afforded by membership in a higher socio-economic class, or by seeking counsel from attorney or non-attorney sources concerning the law. An alternative is to structure the mediation program to function not as a replacement for the judge, but as a complement to the judge's active presence. Thus, when parties or the mediator have reason to believe the mediation process can no longer render even subjective justice, the case returns immediately for adjudication.
B. The Early Settlement Mediator Model: A Complementary Function
1. A Division of Labor in Small Claims Court
The title "small claims" belies the impact of the legal dispute on the lives of the parties involved. The jurisdictional limit for small claims court in Oklahoma is $6000. (18) Matters typically include the termination of a lease, garnishment of wages, or collection of debts by a personal or corporate creditor. Many litigants teeter on the edge of bankruptcy or homelessness, depending on the outcome of the court action.
Delgado relies heavily upon the trial rules of evidence and civil procedure to protect the rights of parties and to ensure fairness in the litigation process. However, most small claims courts nationwide do not apply rules of civil procedure or evidence, and most parties appear pro se. Once the alleged protections of procedure are removed, leveled by dint of the trial venue, the only significant remaining difference is the third-party neutral.
Delgado relies upon the judge's "professional position" to exert "internal constraints" that will limit expressions of bias or prejudice. (19) His support for trial over mediation rests upon the assumption that a judicious, objective temperament develops over time, reinforced by the monitoring force of appellate review. While some judges surely meet the aspirational standards described by Delgado, there are few if any systems in place to assure this as a matter of process in most jurisdictions. (20)
What difference do the status and training of the third-party neutral make in small claims court cases? The Oklahoma model suggests that both the mediator and the judge have roles to play, in conjunction with each other.
In mediation, parties present their arguments to each other through the mediator who engages in a formalized style of communication. This stylized communication elicits from parties their subjective perceptions of the dispute, which may differ significantly from the legal captioning of the matter. Mediators are trained to facilitate the exploration of feelings underlying the documented facts, insofar as those feelings impact decision-making.
The mediation often focuses on culturally framed issues of relationships--respect and morality--that are typically out of place in a trial setting. The mediator facilitates the development of a pragmatic resolution based on the parties' expressed needs and abilities, which may or may not align with strict expectations of the law. (21) Under the CRT view articulated in Fairness and Formality, a mediation that strays from the strictly defined legal issues simply invites victimization of the minority party by the majority party by opening the door to personal, racial aggression. (22)
In a trial the parties present their case directly to the judge for a ruling. Documented facts carry the case, largely uninfluenced by the cultural issues open for discussion in the mediation session. The comparatively restrictive trial format favors the party who can articulate a logical, linear story in a concise format. Time allotted for party presentations is severely limited...
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