Once upon a time some 35 years ago, mediation was talked about in the United States as a tool to cure dissatisfactions with the civil justice system. The great early teachers and scholars of mediation -- Frank Sanders, Christopher Moore, Leonard Riskin and others -- envisioned a process focused on party autonomy that would allow disputants not merely to resolve an immediate legal problem, but to reorient their personal or business relationships into a productive path. Early mediations were usually conducted without counsel in a highly facilitative model in which the parties and the mediator remained together for all or most of the session.

This model in legal mediations has, of course, largely given way as attorneys entered, and came to dominate, the process. Legal mediation today relies heavily on private caucusing and has largely abandoned any substantive joint session. Mediators are likely to be highly directive, if not explicitly evaluative, in pushing the parties to an agreement. Party autonomy has receded, while the power of attorneys and the mediator to influence the result has expanded. One result of this evolution is the growing use of the mediator’s proposal to bring about closure.

Originally published on Law.com on December 10, 2014.