Mediation, Its Roots, and Its Future in a Post-pandemic World

• Publication year: 2020

Mediation, Its Roots, and Its Future in a Post-Pandemic World

By Lou Chang

Virtually all native and traditional cultures have systems for conciliation, management, and resolution of disputes within their cultures. in America, for much of its early history, such conciliation and mediation systems existed as a private, non- governmental process within cultural communities, guilds, trade groups, and religious communities. Over the last four decades, America has undergone a quiet revolution in the field of dispute and conflict resolution. Mediation has fundamentally revolutionized and altered the American judicial process. Because of its speed, economy, effectiveness, and enhancement of party control of mediated resolutions, mediation as an alternative to litigation is now commonplace and widely integrated into judicial and dispute resolution processes throughout the country.

The early adoption of mediation as a component process for the management and resolution of large-scale public conflict can be found in the labor management or collective bargaining field.¹ Early examples involved rare occasions of ad hoc intervention by government leaders to resolve disruptive labor strikes and work stoppages. One of the earliest instances of such intervention was the facilitation of a settlement of a workplace strike by shipyard workers by President Martin Van Buren in 1838. in a similar vein, in 1902, President Theodore Roosevelt interceded to mediate a settlement of a strike by coal miners.

The industrial revolution and the technological ability to mass produce goods and products turned human labor into a commodity, one of several components of mass production along with capital and raw material. Workers were treated as dispensable and dependent cogs in the wheels of industry. industrialized workers and those who represented labor began to agitate for fair and better treatment and for the formation of trade unions. During that time, trade unions were considered illegal labor monopolies. Work stoppages and strikes by collective labor were illegal and were brutally broken by the use of violence, police power, and court injunctions. Courts increasingly became an institutional tool used by the barons of industry to restrain and punish workers and worker unions.

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Around the end of the 19th century, there became a growing popular dissatisfaction with the legal system and its administration of justice. in 1906, Roscoe Pound, later to become the Dean of the Harvard Law School, presented an influential address to the American Bar Association expressing concern regarding society's growing dissatisfaction with the court system. in his address to the ABA, Roscoe Pound noted the growing popular unrest and dissatisfaction with how courts had become institutions and tools for the wealthy and powerful rather than institutions for the administration of justice. He observed that:

The courts have not been able to do the work which the common law doctrine of supremacy of law imposed on them. A widespread feeling that the courts are inefficient has been a necessary result. But, along with this, another phase of the individualism of the common law has served to increase public irritation. At the very time the courts have appeared powerless themselves to give relief, they have seemed to obstruct public efforts to get relief by legislation. The chief concern of the common law is to secure and protect individual rights. "The public good," says Blackstone, "is in nothing more essentially interested than in the protection of every individual's private rights." Such, it goes without saying, is not the popular view today. . . . But the common law guaranties of individual rights are established in our constitutions, state and federal. . . . in America they stand continually between the people, or large classes of the people, and legislation they desire. in consequence, the courts have been put in a false position of doing nothing and obstructing everything, which it is impossible for the layman to interpret aright.
Justice, which is the end of law, is the ideal compromise between the activities of all in a crowded world. The law seeks to harmonize these activities and to adjust the relations of every man with his fellows so as to accord with the moral sense of the community. When the community is at one in its ideas of justice, this is possible. When the community is divided and diversified, and groups and classes and interests, understanding each other none too well, have conflicting ideas of justice, the task is extremely difficult.
The effect of our exaggerated contentious procedure is not only to irritate parties, witnesses and jurors in particular cases, but to give to the whole community a false notion of the purpose and end of law. Hence comes, in large measure, the modern American race to beat the law. if the law is a mere game, neither the players who take part in it nor the public who witness it can be expected to yield to its spirit when their interests are served by evading it . . . . . Thus the courts, instituted to administer justice according to law, are made agents or abettors of lawlessness.
For I venture to say that our system of courts is archaic and our procedure behind the times. Uncertainty, delay and expense, and above all the injustice of deciding cases upon points of practice, which are the mere etiquette of justice, direct results of the organization of our courts and the backwardness of our procedure, have created a deep-seated desire to keep out of court, right or wrong, on the part of every sensible business man in the community.²

Responsive changes to the institutional disfunction observed by Dean Pound did not come swiftly. During times of war, the press for the rights of workers to negotiate collectively through labor unions and to strike, if necessary, needed to give way to the overriding priorities of a nation at war.

At the time of World War i, America established in 1918 a War Labor Board to prevent strikes in critical defense industries. The War Labor Board handled about 1,200 such cases. Also in 1918, America established a U. S. Conciliation Service under its Department of Labor, which began a mediation function on the federal level. The Railway Labor Act of 1926 established a National Mediation Board with jurisdiction over disputes occurring in the railroad industry.

It was also in 1926 that the first non-governmental, non-profit organization, the American Arbitration Association ('AAA'), was established to provide independent and neutral arbitration services for collective bargaining and for general civil and commercial disputes. in the ensuing decades, arbitration, the consensual resolution of disputes by private, independent and neutral non-judicial adjudicators grew to become the primary alternative dispute resolution ("ADR") process utilized in the collective bargaining arena and in certain segments of private industry such as the construction industry, insurance and a few other commercial segments.

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Gradually, in the collective bargaining arena, controls and limits were placed upon the power of the courts to issue injunctions in labor disputes beginning with the adoption of the Norris-LaGuardia Act. Growing out of the Great Depression in America in the 1930s, the National industrial Recovery Act was adopted which created a National Labor Board (later to become known as the National Labor Relations Board) that had the authority to mediate labor disputes. in 1935, the federal government adopted the National Labor Relations Act ("NLRA') under its power to regulate interstate commerce. it explicitly granted employees the right to collectively bargain and join trade unions. it applied to most private non-agricultural employees and employers engaged in some aspect of interstate commerce. A majority of States further regulate collective bargaining and make collective agreements enforceable under state law. They also provide legal guidelines for those employers and employees not covered by the NLRA, such as agricultural laborers and public sector (state and municipal government) workers...