Coercion and Self-Determination in
Court-Connected Mediation: All Mediations Are Voluntary, But Some Are More
Voluntary than Others
Timothy
Hedeen
Mediation
proponents often point to self-determination as the key to the broad
applicability and acceptance of mediation in courts. While early mediation
programs relied on voluntary participation, many courts now require litigants to
try mediation before proceeding to court. Even in mandatory mediation,
self-determination is essential: disputants are free to leave the process at any
point, with or without settlement, and without coercion. While voluntary
mediation may be highlighted in policy and theory, it is not always realized in
practice. Research and appellate court filings demonstrate that many disputants
experience substantial pressure: Judges may pressure parties to enter
mediation, mediators may pressure them to continue with mediation, and any
number of actors and factors may pressure them to settle. Questions remain about
the appropriate level of pressure, however: when does encouragement become
coercion? Courts must ensure that court-connected mediation is delivered
as promised—that self-determination is maintained throughout. This article
reviews the philosophical and practical dimensions of this difficult goal,
concluding with four recommendations to minimize coercion in mediation.
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