Mediation proponents and courts describe mediation as both an integral part of litigation and a process in which mediators help parties communicate to come to their own customized resolution. However, most courts do not know how many cases they refer to mediation and with what effects, and recent mediator surveys suggest increased use of caucus and reduced direct party communication. What are the effects on parties–and on the courts–when parties’ experience in mediation fails to match what they understood (and what the court said) the process would be? And how should mediators respond?
