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Thirty years ago, when the use of mediation began to expand beyond labor issues into other substantive areas, the concept of voluntary participation was a core principle of mediation practice. Trained mediators rallied against court programs that mandated participation in mediation. Much was written about the need for participation to be a voluntary choice in order for it to actually work. The pervasive attitude was that people can’t work out conflicts and disputes in mediation if they’re compelled to participate ...

As the field of mediation has evolved since those early years, practice has taught us that, in fact, many conflicts are resolved even when participation in mediation is mandatory. The Third Circuit Court of Appeals has had a mandatory mediation program for quite awhile with a very reasonable rate of resolutions. For the past several years the Federal District Court in the Western District has made three dispute resolution processes available prior to trial. Most litigants and their counsel select mediation. While mediation may be the selection of choice, still, participation in some aspect of ADR is mandatory. Again, the rate of satisfactory, pre-trial resolutions in this program is significant, most often in the 50%+ range. In the Pennsylvania State Court system, the Superior Court of Pennsylvania initiated a mandatory mediation program back in 2007. This program has operated on a full time basis in the Eastern District, and has been operational in the West on a part-time basis since late 2008. Again, the rate of successful outcomes is noteworthy: about 50-55% in the Eastern part of the Commonwealth, and 55%-70% in the West. Along with appellate mediation programs, some trial courts have initiated mediation programs in family matters and some civil cases. Here in Allegheny County all custody cases are directed to mediation and, once more, the resolution rate is significant.

The success of these non-voluntary court mediation programs has turned me from a naysayer about mandatory participation to a champion. To be fair, it’s not only the statistics that have swayed me, but my own work as a mediator for the Superior Court’s appellate program in the West. Time after time, I have selected cases for the program, then received calls from counsel strongly suggesting a matter be taken off the mediation list due to the complexity of issues or highly litigious clients who, for all practical purposes, could barely speak to each other. These cases might have involved a couple that had just finished five years of divorce litigation, brothers or cousins who were embroiled in an estate conflict, an employee who allegedly violated a non-compete clause in a contract, or fighting business partners who were formerly friends. While it’s true that sometimes cases such as those have come to mediation and people have ended with no resolution, the numbers that have reached satisfactory resolutions is significant. And, in some appeal mediation programs, people have been able to resolve not only the issue that was presented on appeal, but have also been able to reach a wide-ranging global resolution of other issues that were pending between them, either on their way to the trial court or, in some instances, at some stage of trial progress. In those instances, not only has the cost of an appeal been avoided, but countless dollars in projected, ongoing litigation in the trial court, will not be incurred.

I can’t tell you why these mandatory programs are so successful, but I have an idea or two. First, when people are involved in protracted conflict they are emotionally drained and financially distraught. Their immersion in the conflict -- often a conflict that began far before the litigation -- has made it impossible for them to see the possibility of an end point that works for everyone. Rather than helping people get to that positive end point, the adversarial system too often fosters more antagonism. A mediator can often help people see other parts of the picture and can help people formulate options that, prior to mediation, were never on the table, or were too foggy to consider. In mediation people get help to bracket some of the emotion of conflict and they get help to think about practical and realistic possibilities.

Often, while a matter is in litigation, lawyers have also been immersed in the conflict of their clients. They have taken hard positions. It’s difficult to retract from a position that has been a pivotal point in the fight. While more lawyers now have experience participating in mediation, many attorneys have little or no experience as a mediation advocate. Thus, many lawyers don’t honestly understand the possibility of a positive mediation outcome. For lawyers who have tried to guide clients to settle a particular case with no success, due to either entrenched emotions or legal positions, it’s hard to imagine that mediation can resolve something that, for years, has seemed to be impossible to resolve. Yet, so often mediation does help to accomplish what prior negotiations s have been unable to reach.

I am not a mediator who believes mediation is the cure-all for every legal case or personal dispute. However, I do know, at it’s best, mediation can lead to a more timely resolution, to considerably less expense, and to an outcome crafted through the mutual empowerment of the participants working in conjunction with well-meaning counsel.

In many instances, had people had a choice, they would not have mediated. They would not have believed what they thought impossible, was actually attainable. Yet, in being selected and with full participation, they have found an end to litigation and an opportunity for a fresh start to life.

I have no desire to return to the days when I was a naysayer of mandatory mediation. The situations I have seen truly exemplify the heart of mediation. While actual participation may be mandatory, the outcome reached is voluntary. And, that is where the concept of voluntariness is an ongoing and critical core of mediation – one that has always been, and remains, vital to the people involved and for the process, itself.

(Top image: Ovidiu Nedelus/Getty Images)

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The Anti-Antagonist is a personal opinion column by Ann L. Begler, founder and principal of the Begler Group, a Pittsburgh firm providing services in mediation, advanced facilitation, conflict coaching and organizational development. You can e-mail Ann via This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

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