MEDIATION AND ARBITRATION
AS A CIVIL ALTERNATIVE TO
THE CRIMINAL JUSTICE SYSTEM-
AN OVERVIEW AND LEGAL ANALYSIS
PAUL
R. RICE*
I. INTRODUCTION
The criminal justice system is often cumbersome, arcane, and
myopic. It is frustrating to those who work within it and inadequate
for those served by it. Fundamental changes are required to correct
the deficiencies that plague the system. Among the most promising
alternatives are pretrial diversion programs that are designed to reach
the underlying problems that result in criminal behavior. This article
focuses on mediation and arbitration programs, 1 with particular emphasis on dispute resolution.
* Professor of Law, Washington College of Law, The American University; B.B.A. 1965,
Marshall University; J.D. 1968, West Virginia University; LL.M. 1972, Yale University. The
author wishes to acknowledge the outstanding editorial assistance of Neal Goldfarb and Peter
Outerbridge. Their understanding of constitutional principles and familiarity with Supreme
Court decisions significantly contributed to the substance of this article. Carole Crawford, Peggy
Irving, and Lee Nyquist provided research and analysis in the initial stages of the study that led
to this article.
1. Much of the information in this article about existing mediation/arbitration programs is
the product of a survey of 35 programs conducted by this author in 1976 [hereinafter cited as
AUrHOR'S SurvEy]. Of the programs surveyed, 15 responded in varying degrees of completeness. These programs included: Allen County Adult Felony Diversion Program, Lima, Ohio;
Columbus Night Prosecutor's Program, Columbus, Ohio; Deferred Prosecution Program,
Waukegan, Ill.; Pretrial Intervention Program, Fort Lauderdale, Fla.; American Arbitration Association Community Dispute Service, Rochester, N.Y.; Logan Diversion Program, Bellefontaine, Ohio; Bergen County Pre-Trial Intervention Project, Hackensack, N.J.; Greenville
County Pre-Trial Diversion Program, Greenville, S.C.; Institute for Mediation and Conflict Resolution, New York, N.Y.; Fulton County Deferred Prosecution Program, Wauseon, Ohio;
Pulaski County Criminal Justice Project, Little Rock, Ark.; Community Youth Responsibility
Program, East Palo Alto, Calif.; Pima County Attorney's Adult Diversion Program, Tucson,
Ariz.; Akron 4-A Project, Akron, Ohio; Urban Court Mediation Project, Dorchester, Mass.;
Youth Arbitration Center, Washington, D.C.; D.C. Citizens Complaint Center, Washington,
D.C. The information received was subsequently confirmed, and additional information acquired, through telephone interviews with the directors of many of these programs.
The programs responded to the following inquiries: What are the goals of the program? What
screening criteria are employed in selecting participants? How are cases screened? How are
cases acquired by the program? If cases are acquired by referral, who are the referring agents?
Are referrals mandatory or voluntary on the part of the referring agents? Is'participation by the
referred parties mandatory or voluntary? Is criminal action deferred on the condition of successful diversion? Does the program follow an arbitration model, a mediation model, or a combina-
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Defendants often avoid conviction because of procedural
technicalities. 2 Similarly, culpable "victims" often escape prosecution entirely because their conduct is ignored. - Even when prosecution and conviction result, the desires of the victim relative to the
charge and punishment usually are not respected. Victims feel abused
and betrayed by the system when the conviction does not reflect the
nature of the acts committed, and that the penalty is disproportionately small in relation to the suffering and hardships that have resulted. In addition, victims and other witnesses are expected to attend repeated court hearings where they are taken for granted or
ignored entirely. They are rarely informed of continuances or informal dispositions that make their presence unnecessary. 4 They must
tion of the two? If an arbitration model is followed, what sanctions are permissible? What are
the typical sanctions incorporated in settlement agreements? What actions are taken upon allegations of noncompliance? If court action is taken, are attempts made to enforce the agreement
through a civil contract or contempt action, or is a criminal action pursued based on the original
acts giving rise to the agreement? What is the rate of noncompliance? How frequently is legal
action taken against noncomplying parties?
Individual programs are not discussed in this article. Specific data is on file with the author.
2. The most prominent examples are the rules excluding from trial evidence obtained
through an illegal search, see Mapp v. Ohio, 367 U.S. 643 (1961), and statements obtained from
the defendant in violation of Miranda v. Arizona, 384 U.S. 436 (1966). These rules have been
criticized sharply for their effect of allowing criminals to avoid conviction. E.g., Brewer v. Williams, 430 U.S. 387, 416, 420-39 (1977) (Burger, C.J., dissenting); Stone v. Powell, 428 U.S.
465, 502 (1976) (Burger, C.J., concurring); Bivens v. Six Unknown Named Agents, 403 U.S.
388, 413 (1971) (Burger, C.J., dissenting); Miranda v. Arizona, 384 U.S. at 541-43 (White, J.,
dissenting); 8 J. WIGMORE, EVIDENCE § 2184a at 31 n.1 (McNaughton rev. 1961).
3. The victim's conduct will not be ignored, however, if it provides a legal defense to or
mitigates the charges against the defendant. See note 17 infra.
4. See, e.g., Wash. Post, Oct. 15, 1979, § A, at 22, col. 4 (letter from witness complaining
about court clerk's failure to notify him that case in which he was to testify had been dismissed);
Witness Finds Reporting a Crime Doesn't Pay, Wash. Post, Oct. 9, 1979, § A, at 1, col. 4
(witness held in contempt for failure to appear despite fact that she had notified court in advance, and that she had been prepared to testify four previous times but each time the trial was
postponed).
As of 1977, 35 states provide some form of assistance for victims and witnesses, including
"'how to" pamphlets for witnesses and complainants, and social services for victims. Representative of this trend is the Illinois Law Enforcement Commission, which provides the following
services: a 24-hour victim-in-need hotline; assistance for victims in finding services and answering questions; on-the-scene aid, counselling, and referrals; transportation to and from court for
victims and witnesses; childcare services while victims and witnesses are in court; assistance in
the courtroom regarding trial procedures; employer contacts to help in arranging paid time-off
for victims and witnesses; assistance in obtaining victim compensation; and follow-up and support services after the trial is over. ILLINOIS LAW ENFORCEMENT COMISSSION, VICTIM/
WITNESS ADVOCATE (undated pamphlet). See also, e.g., UNIFORM LAW COMMISSIONERS' UNIFORM SENTENCING AND CORRECTION ACT art. 5, POLK COUNTY, IOWA DEPARTMENT OF
PROGRAM EVALUATION, VICTIM RESTITUTION (1975); FREMONT, CALIF. POLICE DEPARTMENT,
FREMONT VICTIM SERVICES PROJECT (1976); MONTGOMERY COUNTY, MD. DEPARTMENT OF
POLICE, INFORMATION TO ASSIST CRIME VICTIMS (undated). For a more thorough explanation
of the problems encountered by witnesses, see F. CANNAVALE, WITNESS COOPERATION (W.
Falcon ed. 1976).
1979]
MEDIATION AND ARBITRATION
endure the anxiety of waiting for hours upon end, often in the same
room with, or even seated beside the person against whom they have
been called to testify. They are expected to assume the financial
hardship that the loss of their time entails, a hardship that can sometimes exceed the punishment that results for the defendant if he is
convicted. In a very real sense, the victims and witnesses of crime
become the victims of the criminal justice system itself. Yet for all of
this, even when a conviction results, the parties usually receive no
tangible relief from each other for any of their injuries, losses, and
5
hardships.
Burgeoning caseloads coupled with procedural delays have resulted
in prosecutorial policies in which efficiency seems to be the predominating factor. Prosecutors are compelled to resort to plea bargaining. 6 Criminal charges are reduced or dropped altogether in
order to avoid lengthy and costly litigation. As a result, the underlying objectives of the criminal justice system often are lost in a
mechanistic and perfunctory process in which expediency is the order
of the day. Defendants are treated as statistics with too little attention
being given to the unique circumstances of each case; unwarranted
charges are sometimes pursued with a vengeance, while compelling
complaints are dismissed without adequate consideration of the consequences.
The judiciary is subject to the same case-load pressures as prosecutors with similar consequences, especially in the area of sentencing. With little time and inadequate information, judges resort to
methods that appear to be designed more to cope than to correct.
Under such circumstances, sentencing is an insensitive ritual in which
the same penalty is given to all defendants convicted of the same
offense unless the prosecution recommends otherwise.7 Con5. A number of jurisdictions have established programs to compensate the victims of crime.
A few programs require the offender to make restitution for the victim's losses. Others compensate the victim with public funds. Such programs, however, typically have significant limitations. Eligibility for compensation may be restricted to victims of violent crimes, the victim
often must show financial hardship, a ceiling on the amount that may be recovered is frequently
imposed, and recovery may be precluded if the victim and the offender are related. H.
EDELHERTZ & G. GEIS, PUBLIC COMPENSATION TO VICTIMS OF CRIME (1974); R. MEINERS,
VICTIM COMPENSATION (1978); RESTITUTION IN CRIMINAL JUSTICE (J. Hudson & B. Galaway
ed. 1977). See also, e.g., UNIFORM LAw COMMISSIONERS' MODEL SENTENCING AND COnnECTIONS ACT §§ 3-601 to 3-605; UNIFORM CRIME VICTIM REPARATIONS ACT.
6. See, e.g., PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF
JUSTICE, TASK FORCE REPORT: THE COURTS 9-12 (1967); Alschuler, Plea Bargaining and its
History, 79 COLUM. L. REV. 1 (1979).
7. See generally Alschuler, Sentencing Reform and ProsecutorialPower: A Critique of Recent Proposalsfor Fixed and Presumptive Sentencing, 126 U. PA. L. REv. 550 (1978); Newman,
A Better Way to Sentence Criminals, 63 A.B.A.J. 1563 (1977).
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[Vol. 29:17
sequently, "justice" often becomes a fair traded item with a predetermined price based on the nature of the charge. The fixed price
can be altered only through a negotiated "package purchase"-a plea
bargain that includes a recommendation by the prosecutor.
The obvious solution to these problems is to reduce the caseload
pressures that have caused them. There are several ways to accomplish this. First, criminal code revisions could eliminate victimless crimes. Legislatures are, however, noticeably reticent to decriminalize acts such as gambling, prostitution, and possession of
marijuana. Second, prosecutors simply could refuse to charge certain
crimes. Although this is not an uncommon practice, particularly in
domestic assault cases, 8 it fails to protect the victim's interests and
may lead to more serious violations. To avoid this result, a substantial
number of jurisdictions have opted for a third method of reducing
caseload pressure-pretrial diversion programs utilizing mediation
and arbitration. This approach is thought to be an appropriate form of
state intervention for a wide variety of offenses and offenders. 9
This article first describes briefly mediation/arbitration programs 10
and outlines some important policy issues yet to be resolved. It then
Similar considerations lead to the same kind of uniformity in bail decisions. See generally
Nagel, Neef & Schramm, Decision Theory and Pre-TrialRelease Decision in Criminal Cases, 31
U. MIAMI L. REv. 1433 (1977); Wice, Bail Reform in American Cities, 9 CuiM. L. BULL. 770
(1973); Wright, Bail: Recognition of the Need for Reform, 1974 CRiM. L. REv. 451.
8. K. WILLIAMS, THE ROLE OF THE VICTIM IN THE PROSECUTION OF VIOLENT CRIMES 34
(Institute for Law and Social Research, PROMIS Research Project Publication 12, 1978); Hall,
The Role of the Victim in the Prosecution and Disposition of a Criminal Case, 28 VAND. L.
REv. 931, 939-41 (1975). See generally Parnas, Police Discretion and Diversion of Incidents of
Intra-Family Violence, 36 LAw & COrTEMP. PROB. 539 (1971); Parnas, The Police Response to
the Domestic Disturbance, 1967 Wis. L. REv. 914.
9. But see Note, Diversion: The Threat of Expanding Social Control, 10 HARV. C.R.C.L.L. REv. 180 (1975). "[Tlhe early results of diversion and the history of recent rehabilitative
efforts warn of the expansionary tendencies of such systems. The lesson of these earlier efforts is
that humane informality is not only subject to corruption and misuse, but also is likely to
expand the net of the criminal justice system." Id. at 212 (footnote omitted).
10. The description of the mediation/arbitration programs that follows is a generalization of
the programs' typical characteristics. For a detailed discussion of program structure and procedure, see D. MCGILLIS & J. MULLEN, NEIGHBORHOOD JUSTICE CENTERS (Office of Development, Testing and Dissemination, Nat'l Institute of Law Enforcement and Criminal Justice,
Law Enforcement Assistance Administration, U.S. Dep't of Justice 1977) [hereinafter cited as
NEIGHBORHOOD JUSTICE CENTERS].
Mediation and arbitration are only two types of diversion programs. For discussion of other
forms of diversion and the diversion concept in general, see D. AARONSON, N. KITTRIE & D.
SAARI, ALTERNATIVES TO CONVENTIONAL CRIMINAL ADJUDICATION: GUIDEBOOK FOR PLANNERS AND PRACTITIONERS (1977); D. AARONSON, B. HOFF, P. JASZI, N. KIrrRiE & D. SAARI,
THE NEW JUSTICE: ALTERNATIVES TO CONVENTIONAL CRIMINAL ADJUDICATION (1977); NAT'L
ASS'N OF PRETRIAL SERVICES AGENCIES, PERFORMANCE STANDARDS AND COALS FOR PRETRIAL RELEASE AND DIVERSION: PRETRIAL DIVERSION (approved draft 1978); R. NIMMER, DIVERSION (1974); PRETRIAL INTERVENTION SERVICE CENTER, NATIONAL OFFENDER SERVICES
19791
MEDIATION AND ARBITRATION
addresses the most significant legal issues, exploring concepts of due
process, equal protection, voluntariness, and confidentiality. It concludes that both constitutional and practical barriers to the success of
these programs as an alternative to the criminal justice system are
minor.
I.
THE MEDIATION/ARBITRATION
PROGRAMS
A. Description
Mediation programs provide a neutral person to assist the accused
and the alleged victim in arriving at a mutually agreeable solution to
their dispute. Arbitration programs contain an additional element; if
the parties fail to reach a settlement, the arbitrator has the authority,
consented to beforehand by the parties, to impose a solution upon
them. 11
Although the programs vary substantially in their structure 12 and in
the types of disputes they handle, '3 they generally follow the same
COORDINATION PROGRAM, AMERiCAN BAR ASSOCIATION, PRETRIAL INTERVENTION LEGAL IS-
SUES (1977) [hereinafter cited as LEGAL ISSUES]; Brakel, Diversion from the Criminal Process:
Informal Discretion, Motivation and Formalization, 48 DENVER L.J. 211 (1971); The Pound
Conference Follow-Up Task Force, New Mechanisms for the Delivery ofJustice, 74 F.R.D. 159,
175-77 (1976); Robertson, Pretrial Diversion of Drug Offenders: A Statutory Approach, 52
B.U.L. REV. 335 (1972); Note, Addict Diversion: An Alternative Approach for the Criminal
Justice System, 60 GEO. L.J. 695 (1972); Comment, Diversion: The Threat of Expanding Social
Control, 10 HANv. C.R.-C.L.L. REv. 180 (1975); Note, Criminal Practice-PretrialIntervention
Programs-An Innovative Reform of Criminal Justice System, 28 RUTGERS L.J. 1203 (1975);
Note, Diversion of Drug Offenders in California, 26 STAN. L. REV. 923 (1974); Note, Pretrial
Diversion from the Criminal Process, 83 YALE L.J. 827 (1974). See also Sander, Varieties of
Dispute Processing, 70 F.R.D. 111 (1976).
Congress recently enacted a statute to provide assistance for the development and maintenance of mechanisms for the out-of-court settlement of minor disputes. Dispute Resolution Act,
Pub. L. No. 96-190 (1980), 48 U.S.L.W. 77 (March 18, 1980). This statute directs the Attorney
General to establish a resource center to aid individual states and localities in formulating plans
for mediating minor disputes. The center will render technical, research, financial, and administrative aid to participating localities. See also H.R. REP. No. 492, 96th Cong., 1st Sess. pts. 1 &
2 (1978). For an informative study of the use of mediation and arbitration as an alternative to
civil litigation, see E. JOHNSON, V. KANTOR & E. SCHvARTZ, OUTSIDE THE COURTS: A SURVEY OF DIVERSION ALTERNATIVES IN CIVIL CASES (1976).
11. See generally Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976); Confrancesco
v. City of Wilmington, 419 F. Supp. 109 (D. Del. 1976); Evans-Amityville Dairy, Inc. v. Kelly,
214 F. Supp. 951 (E.D.N.Y. 1963); General Constr. Co. v. Hearing Realty Co., 201 F. Supp.
487 (E.D.S.C. 1962), appeal dismissed, 312 F.2d 538 (4th Cir. 1963).
12. Many programs are informally established by the prosecutor's office. Such programs
include, for example, the Adult Felony Diversion Program in Allen County, Ohio, the Deferred
Prosecution Program in Lake County, Ill., and the Greenville County Pre-Trial Diversion Program in South Carolina. The Citizens' Complaint Center in Washington, D.C. has been established by an informal cooperative effort of the United States Attorney, the Department of
Human Resources, and the Office of Corporation Counsel. Others, however, such as the Institute for Mediation and Conflict Resolution in New York City are funded and operated independently of the prosecutor's office. AUTHOR'S SURVEY, supra note 1.
13. See generally text accompanying notes 54-57 infra.
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procedure for acquiring the consent of the disputing parties shortly
after arrest and of deferring the prosecution for a specific period
pending attempts to resolve the underlying problems. 14 If these attempts are successful, the charges are dismissed or a nolle prosequi is
entered. 15
Because of the wide variety of cases and offenders appropriate for
diversion, mediation and arbitration programs may relieve caseload
pressures more effectively than would refusal to prosecute or decriminalization. Perhaps a more important benefit is that the programs reduce the level of tension between the participants by helping
them resolve their disputes, and by creating a sense of satisfaction
through the provision of meaningful and expeditious relief for the injuries suffered. 16
Many of the cases that comprise the backlogs in criminal courts
involve relatives, neighbors, and companions, and are based on conduct that reflects only the symptoms of far deeper ongoing disputes
between the parties. Because of the strictures of the criminal laws,
however, the criminal courts can address only the most recent
symptom-the conduct giving rise to the cause of action. 17 In a
domestic dispute, for example, an assault by one party may be merely
the latest in a series of independent reciprocal acts. If a criminal
complaint is filed by the latest "victim," only that assault is considered by the court. Prior acts that culminated in the assault are considered irrelevant to the inquiry into legal culpability; the underlying
problems that perpetuate this game of I-got-you-last, the actual disease, go unattended. This exacerbates an already volatile situation,
since the defendants are unjustifiably made to appear to be the only
parties at fault.
In the midst of ongoing disputes, some effort must be made to
prevent criminal complaints from being used by one of the parties as
a means of retaliation. Because both parties may be culpable when an
entire dispute or relationship is considered, the government cannot
"sponsor" the complaint of the party who won the race to the courthouse and hope to achieve even a semblance of justice. Punitive action against a single party for an isolated act is counterproductive, and
diminishes the confidence and respect that are essential for a successful criminal justice system.
14. AUTHOR'S SURVEY, supra note 1.
15. Id.
16. See NEIGHBORHOOD JUSTICE CENTERS, supra note 10, at 26, 91, 109.
17. The complainant's conduct will be considered only in those limited sets of circumstances
where it constitutes a legal defense to the crime charged. See W. LAFAvE & A. SCOTT,
CRIMINAL L.,W §§ 53, 55, 57, 76 (1972).
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MEDIATION AND ARBITRATION
Oneupmanship in minor disputes should not be the business of the
criminal courts. This is not to say, however, that the disputes and the
problems underlying them are not the appropriate business of the
government. Indeed, such situations eventually may lead to violent
deaths. 18 It is important to recognize that the government's goal
need not always be to determine fault, to label conduct criminal, and
to level blame at any single person. Mediation/arbitration programs
approach antisocial behavior with this awareness. They emphasize the
personal responsibility of each party rather than the narrow assessment of legal fault. Catharsis is sought through the supervised confrontation of parties. Each can vent his anger and frustration in hope
of instilling in the other some understanding of the reasons for those
feelings and of his responsibility for the injuries suffered.
Advocates of mediation believe that this openness promotes a
greater stake in the proceedings than the parties would have in a
traditional trial, thus encouraging the development of a mutually
agreeable solution and a commitment to making that solution work. Although no conclusive data are available, the working hypothesis is
that mediation produces more durable results more economically and
expeditiously than the current criminal justice system. 19
B. Unresolved Policy Issues
A plethora of practical and theoretical issues and problems have
arisen with the use of mediation or arbitration as an alternative to
criminal prosecution. Most remain unresolved. 20 Although it is
18. Figures released by the FBI indicate that in at least 60 percent of all murder and
non-negligent manslaughter cases in 1977, the victim and the perpetrator were either relatives,
friends, neighbors, or acquaintances. FEDERAL BUREAU OF INVESTIGATION, UNIFORM CRIME
REPORTS, CRIME IN THE UNITED STATES: 1977, 12 (1978). Accord, K. WILLIAMS, THE ROLE
OF THE VICTIM IN THE PROSECUTION OF VIOLENT CRIMES 22 (Institute for Law and Social
Research, PROMIS Research Project Publication 12, 1978).
19. Although mediation/arbitration programs have reported recidivism rates as low as 2 percent, see AUTHOR'S SURVEY, supra note 1, there is no indication whether this figure reflects
only those who return to the programs because of noncompliance with settlement agreements,
or also those who are subsequently involved in criminal activity. There also has been no meaningful comparison of the success of the programs to the success of the formal criminal justice
system. Similarly, it never has been determined whether and to what extent the programs are
more economical than the criminal justice system.
20. In an effort to explore these issues, the Department of Justice recently established
Neighborhood Justice Centers in Atlanta, Georgia; Kansas City, Missouri; and Venice, California. Through these programs the Department hopes to "provide national leadership in minor
dispute resolution by the designing ... of new and improved mechanisms to provide more just
and efficient resolution of disputes arising in the course of daily life." UNITED STATES DEP'T OF
JUSTICE, OFFICE FOR IMPROVEMENTS IN THE ADMINISTRATION OF JUSTICE, NEIGHBORHOOD
JUSTICE CENTER PROGRAM 1 (undated). See generally D. SHEPPARD, R. COOK & J. ROEHL,
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beyond the scope of this article to address these issues in. depth, a
brief discussion illustrates the experimental nature of the mediation/
arbitration movement. Unresolved policy issues fall into six primary
categories: goals, scope of permissible inquiry, procedures, screening
criteria, remedies, and enforcement mechanisms.
Clearly defined goals are essential to effective program management and adequate evaluation. In addition, they dictate the factors to
be considered in resolving other policy issues. Although a single
program may have more than one goal, and goals may vary from
program to program, some of the programs surveyed appeared to
have no specific goals at all. 21 Recurring themes included relieving
the congestion of the criminal docket, affording relief to victims, help-
ing defendants, reducing recidivism, humanizing the criminal justice
22
process, and returning dispute resolution to the community.
Without identifying one or more of these themes as the ultimate objective of a program, inconsistent, or even contradictory, allocation of
resources may result. This increases the potential for fragmentation,
inefficiency, and eventually failure.
In theory, the scope of permissible inquiry can range from the limited types of evidence admissible at trial to a broad exploration of
the parties' past conduct, attitudes, and psychological states, as well
as the external influences on their lives and relationships. The goals
NATIONAL EVALUATION OF THE NEIGHBORHOOD JUSTICE CENTER FIELD TEST, WORK PLAN
(Institute for Research, 1978) [hereinafter cited as NATIONAL EVALUATION].
Presently, there is little that is new about these Neighborhood Justice Centers. The concepts
they employ and the procedures they have adopted duplicate those of the many existing programs throughout the country. All three programs employ mediation as their primary method of
dispute resolution. The Kansas City Center employs arbitration as well. All programs handle a
broad range of disputes and limit themselves to "minor" criminal matters. The only apparent
innovation is the presence of built-in evaluation components. See id. at ch. III. Through these
components the Centers hope to answer many of the unresolved questions surrounding the
programs. This can happen, however, only after the Centers have been in operation long
enough to develop meaningful data. See id. at 111-6.
It is unfortunate that the Department has elected to reinvent the wheel in its efforts to
determine the validity of mediation/arbitration. By duplicating rather than evaluating existing
programs, the Department has delayed the resolution of critical problems, and multiplied the
cost of resolving them. The apparent justification for this is that it will allow a complete assessment of the costs and problems encountered in starting new programs. Although this certainly
is a worthwhile endeavor that, in time, will be important, it is premature since questions about
the very concept itself remain unresolved.
The recently enacted Dispute Resolution Act, Pub. L. No. 96-190 (1980), 48 U.S.L.W. 77
(Mar. 18, 1980), mandates the establishment of a Dispute Resolution Program in the Department of Justice. This program is to study existing dispute resolution mechanisms and make
recommendations for their improvement and for the development of new mechanisms. Id. § 6.
21. AUTHOR'S SURVEY, supra note 1.
22. Id.
1979]
MEDIATION AND ARBITRATION
of the program will determine, in part, the kinds of information
necessary to achieve the desired results. Time and funding may impose practical constraints. Within these limitations, the question remains who is to decide the extent of the inquiry: legislators, program
managers, the arbitrator, or the parties themselves. Strict external
standards might impair the flexibility of arbitration programs. Conversely, the unfettered discretion of the arbitrator might be subject to
abuse. The parties might not be able to reach agreement on this
threshhold question, thereby jeopardizing the rest of the process.
Closely related to the scope of the inquiry are the procedures to be
followed. The more expansive the inquiry, the greater the exposure
of the parties if the proceedings are open to the public. This may
discourage participation initially, and communication subsequently. 2 3 Private hearings, however, may lack the ritual and
symbolism necessary for both public and private acceptance of the
process and its outcome. 24
Another significant procedural question is whether a formal determination of fault should be made for each act or transaction explored
in the hearing, and if so, how. One possibility is to use the legal
principles that would have been applied had such acts been the subject of civil or criminal adjudication. This has the potential, however,
of bogging down the proceedings in the same substantive and evidentiary technicalities that inhibit the effective resolution of disputes in
the conventional judicial system. Rejection of these standards, on the
other hand, might result in no standards other than the personal predilections of the participants. This could lead to inconsistency, confusion, and unfairness.
Many questions focus on screening criteria. Both objective and subjective criteria are utilized currently, 25 and no assessment of the relative weight to be given various factors has been made. During this
experimental stage of mediation/arbitration programs, data is not
available on whether certain types of charges, individuals, or relationships should be given higher priority, or even exclusive access, because the probability of success is higher in these classes than in
23. See notes 253-95 & accompanying text infra for a discussion of the problem of confidentiality.
24. On the role of ritual in dispute resolution, see Ball, The Play's The Thing: An Unscientific Reflection on Courts Under the Rubric of Theater, 28 STAN. L. REV. 81 (1975); Hoebel,
Keresan Pueblo Law in LAw IN CULTURE AND SOCIETY 92 (L. Nader, ed. 1969). Cf. Ingber,
Procedure, Ceremony and Rhetoric: The Minimization of Ideological Conflict in Deviance Control, 56 B.U.L. REv. 266 (1976).
25. See text accompanying notes 54-57 infra.
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others. Of those who might successfully participate in such a program, some may be more deserving than others of the opportunity to
avoid the stigma of a criminal record. Conversely, society's need to
label certain conduct as criminal 26 may prevent offenders in those
categories from participation, regardless of the probability of success.
The remedies and sanctions that may be imposed by an arbitrator
or adopted by the parties pose additional questions. In the arbitration
model, the arbitrator's power and discretion are potentially limitless.
In the mediation model, the opposite extreme is broached; the parties may be too lenient and society's interest in some kind of punishment could go unheeded. One possible check is to define the scope
of available remedies by the legal rights and principles that would
attach to the conduct in civil or criminal proceedings. Another is to
establish programmatic guidelines for minimum and maximum penalties. Such approaches, however, run the risk of diminishing the programs' flexibility and with it, the probability of success. A third alternative is to reach a pre-hearing agreement on the range of sanctions
that the parties and the mediator/arbitrator would find acceptable.
This too runs the risk of diminished flexibility if information is discovered during the proceedings that would drastically alter equitable
remedies.
Finally, the enforcement of mediation/arbitration awards presents a
number of problematic issues. If noncompliance is alleged, four possible options are available. 27 First, the breach can be ignored. This
would promote neither the parties', nor society's confidence in the
programs. Second, the agreement can be renegotiated. This would be
an appropriate solution if the parties want to continue to work on
their problems but one of them is unable to meet the terms of the
original settlement. Third, participation in the program can be revoked and the defendant returned to the conventional criminal justice
system to face the original charges. This is a drastic step that raises
serious due process questions discussed below. 28 None of these options, in fact, enforces the agreement; they are enforcement avoidance techniques. The fourth option, which is not currently available
in most jurisdictions, is to permit the complaining party to sue on the
contract in a regular civil action. This raises complex issues that are
discussed in the next section.
26. Professor Herbert Packer has noted that the criminal law serves something of an educational function: "These public rituals [of the criminal process], it is plausible to suppose,
strengthen the identification of the majority with a value system that places a premium on
law-abiding behavior." H. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 44 (1968).
27. See NEIGHBORHOOD JUSTICE CENTERS, supra note 10, at 76-77.
28. See notes 106-230 & accompanying text infra.
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MEDIATION AND ARBITRATION
C. The Issue of Civil Enforcement
Only a handful of programs are authorized to compel compliance
through court action. 29 The inability of most programs to enforce
their agreements is unfortunate. Without a civil enforcement
mechanism, the overall effectiveness of the programs is diminished,
and the problems the programs were created to eliminate often are
compounded.
Whether a program employs mediation or arbitration, the agreement reached is meaningless if the parties refuse to carry it out.
When enforcement procedures for noncompliance are not available,
an incongruous situation is created where parties seeking relief are
required to relitigate their dispute in the costly, time-consuming, and
sometimes unfair system from which they had hoped to escape. In
this manner, mediation/arbitration programs may find that they are
pursuing justice without a remedy.
Two reasons hate been advanced for the lack of compulsory compliance in these programs. The first is that the need for such enforcement would indicate that the mediation model has failed. 30 The
second is that there is little benefit in converting potential tort claims
into contract actions. 31 Nonenforcement cannot be justified on
either of these grounds.
The perception of success or failure depends on the standards by.
which they are measured. Voluntary compliance is not essential to
most of the goals of mediation/arbitration programs. 32 In fact, the
only goal to which voluntary compliance is even tangentially related is
that of dispute resolution. But even then, success might be defined
better by the fairness of the contract's terms and the manner by
which those terms were reached. Resolving the parties' underlying
problems is a laudable goal, but one which too often may prove to be
elusive. There is no justification for programs being structured in
such a way that equally important goals are ignored. If arbitration and
mediation can produce results that are just as fair as those of the
criminal process, but with greater efficiency, a substantial measure of
29. Only the Justice Department's Kansas City, Missouri, Neighborhood Justice Center and
programs in New York State provide for civil enforcement of settlement agreements. These
programs utilize the arbitration model. The enforcement process in New York programs, for
example, has been described as follows: "[Aigreements may be enforced by making a motion to
the civil branch of the court to confirm the arbitrator's award. If confirmed, this motion is
followed by a motion for specific judgment in monetary awards or a contempt action for behavioral agreements." NEIGHBORHOOD JUSTICE CENTERS, supra note 10, at 76.
30. AUTHOR'S SURVEY, supra note 1.
31. Id.
32. See text accompanying note 22 supra.
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success is achieved. Even if the diversion system fails under some
abstract concept of justice to produce results as "fair" as those provided by the conventional system, the programs nevertheless demonstrate a concern for people and gain real relief for victims. The
parties and the community may thus view the diversion program's
results as more desirable than pursuing esoteric principles and seemingly trivial technicalities. The perception of justice is often as important as its reality. In fact, its perception may be its reality.
Implicit in the position that enforcement marks the failure of the
program is the belief that noncompliance demonstrates the failure of
the program to have reached the underlying problems giving rise to
the dispute. This belief is not necessarily valid. The recalcitrance of
one party may reveal the true underlying cause of the dispute. Even
though the program cannot correct this problem, it has rendered a
valuable diagnostic service. And even if enforcing the contract is only
treating a symptom, it is at least as effective as the remedies offered
by any other system.
Alternatively, the refusal of a party to comply with the arbitrated
resolution may reflect the failure of an arbitrator to have reached an
equitable solution. Therefore, when noncompliance is alleged, the
award should be reviewed to ensure that it is fair. In fact, a review
mechanism should be an integral part of each program. When there
is confidence in the fairness of the award, however, there should be
no hesitance to enforce it.
Opposing the enforcement of mediated or arbitrated contracts on
the basis that enforcement converts a cause of action in tort to one in
contract intolerably exalts form over substance. 3 3 If the agreement
fairly reflects the remedy or remedies to which one or more of the
parties is entitled, then the system of justice has accomplished an
important mission and should give it effect. The technical means or
title by which that mission is fulfilled is absolutely irrelevant.
By enforcing arbitrated solutions, programs will encounter legal
problems that otherwise could be avoided. One concerns the nature
of process that is due at the hearings at which the disputes are resolved. The other issue is whether the inherent coercion of criminal
defendants to participate in the program in the first place will have an
impact on the enforceability of the contracts.
33. For a discussion of the differences between tort actions and contract actions, see W.
cb. 16, § 92 (4th ed. 1971).
PROSSER, HANDBOOK OF THE LAv OF TORTS
1979]
MEDIATION AND ARBITRATION
II. THE LEGAL ISSUES
Despite the proliferation of mediation/arbitration programs
throughout the country, surprisingly little attention has been given to
the legal implications of the use of such programs either as an alternative to conventional methods of adjudication or, specifically, as an
alternative to criminal prosecution. Although the issues that arise
from these legal implications are relatively few, they may be of sufficient complexity to create a reluctance on the part of many to initiate
such programs. Some of these issues pervade the entire system,
others are recurring, and still others are unique to the various stages
of the process. The remainder of the article will address these legal
issues. To put this analysis in perspective, the diversion process is
traced and the predominant issues that arise at each stage are identified.
The first legal issue arises in connection with screening criteria.
Although the state is not obliged to provide programs to all persons
who might benefit, some basis must exist for diverting some arrestees
and subjecting others to criminal sanctions. 3 The equal protection
considerations at this stage, therefore, are significant. A second area
of legal concern focuses on the process of dispute resolution itself.
are reSerious questions exist as to whether due process protections
35
are.
protections
those
what
so,
if
and
quired at this stage,
The next series of potential legal problems revolve around noncompliance. If programs attempt to compel compliance by threatening to send the breaching party back to the criminal court, a second
34. See notes 83-89 & accompanying text infra.
35. An additional issue that might arise at this stage relates to the use of evidence that is
seized in violation of the fourth amendment's protection against unreasonable searches and seizures. In light of recent trends in the Supreme Court relative to the exclusionary rule in ancillary proceedings, there appears to be only a slight possibility that the use of such evidence
would be barred.
The Supreme Court has created the exclusionary rule, which precludes the use of unconstitutionally seized evidence, as a remedy for violations of the fourth amendment. Mapp v. Ohio,
367 U.S. 643 (1961); Weeks v. United States, 232 U.S. 383 (1914). The theory underlying the
remedy is that by prohibiting use of the fruits of the unconstitutional acts, the motivation to
commit the acts will be eliminated. The application of the rule to the mediation/arbitration
programs therefore will turn on an evaluation of the degree to which allowing use of illegally
seized evidence will encourage the police to conduct illegal searches and seizures. Compare
United States v. Janis, 428 U.S. 443 (1976) (evidence illegally seized by state authorities admissible in federal civil tax assessment proceeding), and United States v. Calandra, 414 U.S. 338
(1974) (illegally seized evidence may be used as basis for questioning witness before grand jury),
with One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965) (illegally seized evidence
inadmissible in quasi-criminal proceeding for forfeiture of item used in committing crime). The
mediation/arbitration programs are remote enough from the conduct of the police that they will
probably be held to have no such encouraging effect.
30
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round of procedural due process problems arises. Although the state
need not confer rights upon its citizens, once it chooses to do so, it
may not terminate them without notice and hearing. 36 By participating in a program, a defendant acquires the contractual right to the
dismissal of the criminal charges against him upon successful completion of the agreement entered into with the victim. This right cannot
be revoked arbitrarily. A slightly different issue arises if civil enforcement of the agreement is pursued through an action in contract:
the voluntariness of the defendant's participation in the program.
A final issue, which pervades the entirety of each program, concerns the confidentiality of communications between the parties and
records that are maintained by the staff. Without some assurance of
confidentiality, prospective participants may be reluctant to enter
mediation/arbitration programs or to cooperate fully because of the
fear that any statements they make or information they provide will
be used to their disadvantage in subsequent civil or criminal proceedings.
A. State Action
The due process and equal protection clauses of the fourteenth
amendment do not govern the conduct of private individuals. They
apply only to actions of the states. 37 Thus, a threshold question in
constitutional analysis is whether the action in question is state action. State action clearly is present in the majority of programs administered by prosecutors' offices. There are, however, a few independently operated and funded programs that raise the question
whether their actions are sufficiently attributable to the state to impose constitutional requirements on them. Because of the elusive nature of the state action concept, one cannot predict with certainty
how the Supreme Court will answer this question.
36. See notes 106-91 & accompanying text infra.
37. The Civil Rights Cases, 109 U.S. 3 (1883). See generally Black, The Supreme Court,
1966 term- Foreword: "State Action," Equal Protection and California's Proposition 14, 81
HAxv. L. REV. 69 (1967); Burke & Reber, State Action, Congressional Power, and Creditors'
Rights: An Essay on the Fourteenth Amendment (pt. 1), 46 S. CA,. L. REv. 1003 (1973);
Thompson, Piercing the Veil of State Action: The Revisionist Theory and a Mythical Application
of Self-Help Repossession, 1977 Wis. L. REv. 1; Williams, The Twilight of State Action, 41
TEx. L. REv. 437 (1963).
This article discusses the concepts of equal protection and due process in the context of the
fourteenth amendment and state action. It should be noted, however, that the same constitutional requirements are applicable under the fifth amendment to actions taken by the federal
government that affect individual rights. See, e.g., Buckley v. Valeo, 424 U.S. 1, 93 (1976);
Boiling v. Sharpe, 347 U.S. 497, 499 (1954); Karst, The Fifth Amendment's Guarantee of Equal
Protection, 55 N.C.L. REv. 541 (1977).
1979]
MEDIATION AND ARBITRATION
The Court has acknowledged that it is "an impossible task" to "fashion and apply a precise formula for recognition of state responsibility"
under the fourteenth amendment. 38 The results in each case turn on
the precise facts and circumstances presented. The key words and
catch-phrases the Court has used to characterize those situations in
which state action can arise frequently have little meaning and utility
outside the context in which they were coined. 39 One trend, however, is clear. Over the past ten years, the Supreme Court has shown
40
a stubborn unwillingness to find state action in new situations.
An examination of the character of the mediation/arbitration programs and their relationship to the criminal justice system suggests,
nonetheless, that the state might well be held responsible for their
activities. This conclusion can be reached under two independent
theories.
The first theory, based on the existence of a symbiotic relationship
between the program and the state, was originally stated in Burton v.
Wilmington ParkingAuthority. 41 In Burton, a state agency had built
a parking facility and leased portions of it to private businesses, one
of which refused to serve blacks. The question arose whether the
state was sufficiently involved to give rise to the plaintiff's equal protection claim. In holding that it was, the Court pointed to the facts
that the state owned the building and had the authority to require
42
contractually that the restaurant serve all members of the public;
the state maintained a continuing relationship with and commitment
to the business through upkeep and maintenance; 4 3 the state encour38. Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961) (quoting Kotch v. Board
of River Port Pilot Comm'rs, 330 U.S. 552, 556 (1947)).
39. The Court announces its conclusions more often than it explains its reasoning. See
United States v. Price, 383 U.S. 787, 794 n.7 (1966) ('the State has . . . insinuated itself into a
position of interdependence . . . [and has become] a joint participant in the challenged activity."); Evans v. Newton, 382 U.S. 296, 299 (1966) ("so entwined with governmental policies or
so impregnated with a governmental character"); Terry v. Adams, 345 U.S. 461, 473 (1953)
(Frankfurter, J., concurring) ("infusion of conduct by officials, panoplied with state power").
40. For cases in which no state action was found, see Flagg Brothers, Inc. v. Brooks, 436
U.S. 149 (1978) (warehouseman's sale of stored goods as permitted by Uniform Commercial
Code); Hudgens v. NLRB, 424 U.S. 507 (1976) (prohibition of labor picketing at shopping
center); Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) (utility's termination of electric service without notice or hearing); Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (prohibition
of antiwar leafletting at shopping center); Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972)
(racial discrimination practiced by private club holding state liquor license). The most recent
major cases in which the Court has found state action to exist were Amalgamated Food
Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968), which was effectively overruled
by the Hudgens and Lloyd Corp. cases, and Reitman v. Mulkey, 387 U.S. 369 (1967).
41. 365 U.S. 715 (1961).
42. Id. at 725.
43. Id. at 724.
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[Vol. 29:17
aged private commercial enterprise, since it directly benefitted from
its successful operation; 4 4 and the proximity of the public parking
facility to the business appeared to place the power and prestige of
the state behind the discrimination. 45
The criminal courts are similarly related to independent
mediation/arbitration diversion programs. First, in order for a diversion program to obtain clients, it must have an agreement with the
prosecutor. Whether this is an informal understanding or a formal
contract, the state can stipulate the terms and conditions under which
it will release arrestees to the program. Second, until the arrestee
completes his obligations under the agreement with the victim, and
the case is dismissed, the state retains the power of disposition.
Third, the state benefits financially from the relationship by a reduction in the criminal caseloads and the elimination of incarceration for
program participants. 46 Finally, because the program can use the
threat of referral for prosecution to compel compliance with settlement agreements and arbitration awards, the state appears to put its
imprimatur on the activities of the program. As a consequence, one
could reasonably argue that the state has "insinuated itself into a position of interdependence" and has become a "joint participant in the
challenged activity." 47 Just as the parking facility could have
guarded against the challenged activities by a condition in the lease
agreement, the criminal justice system has the power to refuse to
cooperate with diversion programs unless they agree to comply with
constitutional standards. And since the state benefits from the diversion of the disputes, both directly and indirectly, it cannot reasonably
be allowed to wash its hands of the process by which those benefits
are realized.
State action might also be found by concluding that mediation/
arbitration programs perform a "public function." Under this theory,
when private individuals or groups are endowed by the state with
powers to perform functions traditionally exercised by the state, they
become agencies or instrumentalities of the state, and their actions
become state action. 48 In Smith v. Allwright, 49 for example, the
44. Id. at 723-24.
45. Id. at 725.
46. The success of the mediation/arbitration process produces both immediate cost savings
and long-range benefits in the reduction of tensions in the community.
47. Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961).
48. See, e.g., Marsh v. Alabama, 326 U.S. 501 (1946); Smith v. Allvright, 321 U.S. 649
(1944).
49. 321 U.S. 649 (1944).
1979]
MEDIATION AND ARBITRATION
Court held that a political party's exclusion of Mexican-Americans
from voting in primary elections was attributable to the state. 5 0 Because state law made primaries an integral part of the election process, and delegated their management to political parties, the parties
were performing a public function, and the state became responsible
for their discriminatory policies.
Similarly, the mediation/arbitration programs are arguably state action in that the resolution of disputes involving criminal conduct has
been a governmental function. Although the programs do not achieve
the resolution of disputes in the same fashion or with the same results
as conventional adjudication, their goals are the same. Recently, the
Court has insisted that the function involved must be "the exercise
. . of powers traditionally exclusively reserved to the State." 5
' Applying this requirement, it has refused to hold that civil dispute resolution is necessarily state action, reasoning that the disputing parties
often have available means other than litigation to achieve a settlement. 52 Mediation/arbitration programs can be distinguished, however, in that their function is to resolve criminal disputes, which has
been an exclusive state prerogative. Since the state has delegated its
responsibility to resolve pending criminal actions to such programs, it
would be incongruous to hold that their acts are merely those of private citizens. This article, therefore, assumes in the following analysis
that state involvement in all mediation/arbitration programs is sufficiently significant to give rise to state action.
*
B. Equal Protection
Monetary, time, personnel, and other resource limitations often
make it impossible for social welfare programs to alleviate or even to
address all facets of the problems with which they are designed to
deal. Consequently, participation in most programs must be limited.
This is most often accomplished by the use of screening criteria that
exclude certain classes of individuals. This restrictive procedure is a
form of class-based discrimination that may give rise to equal protection claims. 53
50. Id. at 664-65.
51. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974).
52. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 161-62 (1978). See United States v. Kras,
409 U.S. 434 (1973).
53. If a diversion program is established pursuant to court rule, see, e.g., N.J. CT. R. 3:28,
judicial review of screening criteria can be quite different from that described in the text. The
New Jersey Supreme Court, perceiving diversion as a form of disposition similar to probation,
has held that the decision to admit or reject a criminal defendant applicant is "functionally a
quasi-judicial decision." State v. Leonardis, 71 N.J. 85, 115, 363 A.2d 321, 337 (1976), aff'd on
34
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Widely varying screening criteria have been established in the
existing mediation and arbitration programs throughout the country. 5 4 Some programs have instituted age requirements, limiting
themselves to either juvenile or adult disputes. Others have established residency requirements. Most criteria, however, relate either
to the personal characteristics of defendants or to the nature of the
offenses with which they are charged. Exclusionary criteria based on
personal characteristics include, for example, narcotic addiction and
alcoholism. One program excluded homosexuals and prostitutes.
Programs may exclude "dangerous" individuals, individuals with "a
pattern of criminality," those with a felony conviction within the previous five years, those on probation, or anyone who has ever served a
sentence. Many programs require that the defendant be a first
offender, and of these, some excluded individuals with prior arrests.
Some programs even exclude individuals who have "bad reputations"
or who "associate with persons with bad reputations."
The other major criterion used relates to the nature of the offense
charged. 5 5 Many programs exclude defendants charged with crimes
rehearing, 73 N.J. 360, 375 A.2d 607 (1977). Consequently, the court held that under its constitutional authority, N.J. CONST. art. VI, § II, 3, and its inherent power to promulgate rules
of practice and procedure, it could review screening decisions by whomever made and promulgate screening criteria based on the program's objectives. State v. Leonardis, 71 N.J. at 108-09,
363 A.2d at 333-34.
Judicial establishment of diversion programs and promulgation of operating guidelines clearly
seems to infringe on legislative and executive functions in that it affects substantive rights and
liabilities. Nevertheless, on rehearing of the Leonardis case, the court concluded that the rules
creating the program did not violate the concept of separation of powers, for the rules related
primarily to procedure and the function of the judiciary. 73 N.J. at 369-75, 375 A.2d at 611-14.
For a discussion of separation of powers issues presented by pretrial diversion programs, see
LECAL ISSUES, supra note 10, at 11-16.
Screening might be seen as a quasi-judicial function even in legislatively-created programs. In
Sledge v. Superior Court, 11 Cal. 3d 70, 113 Cal. Rptr. 28, 520 P.2d 412 (1974), for example,
the court suggested in dictum that where the prosecutor's role in the screening process involves
the weighing of facts and the exercise of discretion, he would be performing a judicial function.
Id. at 74-75, 113 Cal. Rptr. at 31, 520 P.2d at 415. The court held, however, that since in the
case before it the prosecutor's function was strictly ministerial, his action was not judicial in
nature. Id. at 76, 113 Cal. Rptr. at 32, 520 P.2d at 416.
In one respect, looking upon screening as a quasi-judicial function means closer judicial
supervision than is possible under equal protection analysis. Under this theory, the court can in
effect legislate its own admission standards. This can provide more meaningful supervision,
regulation, and coordination of diversion efforts throughout a geographical jurisdiction, and can
facilitate evaluation, assessment, and modification of experimental programs. The judicial function theory, however, does not necessarily provide any more control over the exercise of discretion by the prosecutor. For example, on the rehearing in Leonardis, the New Jersey court
noted that "great deference should be given to the prosecutor's determination not to consent to
diversion," and that such a veto should be overturned only on a showing of a "patent and gross
abuse of discretion." State v. Leonardis, 73 N.J. at 381, 375 A.2d at 618.
54. AUTHOR'S SURVEY, supra note 1.
55. Id.
1979]
MEDIATION AND ARBITRATION
of violence or crimes involving weapons or drugs. Others exclude traffic offenders, or limit their scope to minor criminal complaints or to
civil problems such as landlord-tenant and consumer disputes. Because of the nature of the dispute resolution process, the relationship
of the defendant to the victim is often a factor, 56 and the consent of
the victim may be required. Several programs utilize undefined "sub57
jective criteria."
It is well established that social programs do not have to address all
evils at once. 58 Accordingly, diversion programs of a limited scope
do not violate the equal protection clause merely because they benefit limited classes of individuals. Due to the recent vintage and experimental nature of many mediation and arbitration programs, the
screening criteria that have been promulgated are often crude and
imprecise. 5 9 This gives rise to a serious question about how much
freedom should be given to these programs to draw screening classifications to accommodate their limited scope as experimental endeavors. There is no simple answer to this question. It is nece-ssary to
examine the various burdens of persuasion that the Supreme Court
has set as to the reasonableness of classification schemes. Go In gen56. Many programs require that the disputants have a pre-existing relationship. Although
participation may be limited to "intra-family" disputes, this concept is defined broadly to include disputes between individuals with an ongoing relationship. Id.
57. These subjective criteria usually include the opinions of the program's staff, the arresting
officer, the presiding judge, or the prosecutor as to the potential benefits for each party and the
community as a whole of attempts to resolve the matter informally. Frequently, this decision is
influenced by the maturity of the parties and their apparent ability to accept responsibility for
their conduct. Id.
58. E.g., Cleland v. National College of Business, 435 U.S. 213, 220 (1977) (reforms in
veterans' educational grant program need not be accompanied by reforms in similar programs);
Califano v. Jobst, 434 U.S. 47, 57-58 (1977) (eligibility requirements for social security benefits
valid even though inequities exist in system); New Orleans v. Dukes, 427 U.S. 297, 305 (1976)
(elimination of street vendors may proceed step by step); Buckley v. Valeo, 424 U.S. 1, 105
(1975) (federal financial support of candidates in primary elections valid even though applicable
only to major party primaries); Williamson v. Lee Optical Co., 348 U.S. 483 (1955) (regulation
of opticians valid even though sellers of ready-to-wear glasses are exempt). See generally
Tussman & tenBroek, The Equal Protection of the Laws, 37 CALiF. L. REv. 341, 348-51 (1949);
Developments in the Law-Equal Protection, 82 HARv. L. REv. 1065 (1969).
59. AurrHos's SURVEY, supra note 1.
60. Mention should also be made of the irrebuttable presumption doctrine, under which
classifications are struck down if they create a conclusive presumption that is not consistent with
the aims of the legislative scheme. See, e.g., Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632
(1974); United States Dep't of Agriculture v. Murry, 413 U.S. 508 (1973); Vlandis v. Kline, 412
U.S. 441 (1973). The doctrine has been criticized as an unprincipled means of scrutinizing
classifications more closely than would be possible under a pure equal protection approach, see,
e.g., Note, The Irrebuttable Presumption Doctrine in the Supreme Court, 87 HAIv. L. REv.
1534 (1974); Note, Irrebuttable Presumptions: An Illusory Analysis, 27 STAN. L. Rlv. 449
(1975), and the Court appears to have abandoned it, see Weinberger v. Salfi, 422 U.S. 749
(1975).
36
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J
[Vol.
29:17
eral, the Court has recognized two standards of justification for classifications in the law-strict scrutiny and rational relationship -and,
in an extremely limited number of areas, has recognized an intermediate level of review.
1. Strict scrutiny
If governmental classifications infringe upon certain "fundamental
rights" expressly or impliedly guaranteed by the Constitution, 6' or if
they are based on suspect classes such as race 6 2 or alienage, 63 the
courts will engage in strict scrutiny. This is the most stringent standard of review; it requires the state to demonstrate that the discrimination it is engaging in is justified by a compelling state interest and
that the classification scheme represents the least onerous means of
furthering the interest involved. 64 In practical terms, this generally
means that the discrimination will be held invalid. 65
Those who structure mediation/arbitration programs are unlikely to
adopt screening criteria based on race, national origin, or alienage,
the only suspect classes currently recognized by the Supreme Court.
The likelihood that strict scrutiny will be applied to the screening
criteria of these programs, therefore, will turn on whether the classifications in question infringe upon the fundamental rights of those
who are excluded from participation.
61. See notes 66-70 & accompanying text infra.
62. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967); McLaughlin v. Florida, 379 U.S. 184
(1964); Korematsu v. United States, 323 U.S. 214 (1944). Cf. Strauder v. West Virginia, 100
U.S. 303 (1880). See generally Brest, The Supreme Court, 1975 Term-Forward: In Defense of
the Anti-Discrimination Principle, 90 HARV. L. RPv. 1 (1976); Karst, Invidious Discrimination:
Justice Douglas and the Return of the "Natural-Law-Due-ProcessFormula," 16 U.C.L.A. L.
REV. 716 (1969); Developments in the Law-Equal Protection, 82 HARV. L. REv. 1065 (1969).
63. Nyquist v. Mauclet, 432 U.S. 1 (1977); Examining Bd. of Eng'rs v. Otero, 426 U.S. 572
(1976); In re Griffiths, 413 U.S. 717 (1973); Sugarman v. Dougall, 413 U.S. 634 (1973); Graham
v. Richardson, 403 U.S. 365 (1971). But cf. Ambach v. Norwick, 441 U.S. 68 (1979) (upholding
exclusion of aliens from teaching in public schools on ground that teaching is a fundamental part
of the governing process, and that state may restrict participation in governing to citizens);
Foley v. Connelie, 435 U.S. 291 (1978) (upholding exclusion of aliens from state police on
similar ground); Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) (suggesting the federal government has more freedom than the states in creating alienage classifications); Mathews v. Diaz,
426 U.S. 62 (1976) (same).
Classifications based on national origin or ancestry are treated as suspect as well. Keyes v.
School Dist. No. 1, 413 U.S. 189 (1973) (Hispanics); Hernandez v. Texas, 347 U.S. 475 (1954)
(same); Strauder v. West Virginia, 100 U.S. 303 (1880) ("Celtic Irishmen") (dictum).
64. E.g., Shapiro v. Thompson, 394 U.S. 618, 634 (1969); Loving v. Virginia, 388 U.S. 1, 11
(1967); Korematsu v. United States, 323 U.S. 214, 216 (1944).
65. As Professor Gunther has pointed out, strict scrutiny is " 'strict' in theory and fatal in
fact." Gunther, The Supreme Court, 1971 Term- Foreword:In Search of Evolving Doctrine on
a Changing Court: A Model for a Newer Equal Protection, 86 HAv. L. REv. 1, 8 (1972).
1979]
MEDIATION AND ARBITRATION
The category of rights held to be fundamental 66 includes not only
those rights expressly guaranteed by the Bill of Rights, 67 but also
rights that have been established as important to the nature of the
federal union and of personal liberty, 68 rights that have meaning and
significance only in their equal availability, 6 9 and rights that are important to the autonomy of the individual. 70 Although the list of
recognized fundamental rights is relatively short, it is unlikely that it
will be expanded in the near future. The Burger Court has declined
to do so although presented with a number of opportunities. 71
66. "Fundamental" as used in the context of equal protection analysis is a term of art. It
essentially means deserving of being protected by strict scrutiny. The reader will be justified if
he finds some circularity in this definition; one of the criticisms of the fundamental rights
branch of equal protection is that it is difficult if not impossible to define what makes a given
right fundamental. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 661-62 (1969) (Harlan, J.,
dissenting).
67. The most prominent examples are first amendment cases. Lehman v. City of Shaker
Heights, 418 U.S. 298, 308-22 (1974) (Brennan, J., dissenting) (4-1-4 decision); Police Dep't of
Chicago v. Mosley, 408 U.S. 92 (1972); see Karst, Equality as a Central Principle in the First
Amendment, 43 U. CHI. L. REv. 20 (1976). But see, e.g., FCC v. Pacifica Foundation, 438 U.S.
726 (1978) (plurality opinion) (indecent but nonobscene speech may be subject to greater regulation than political discussion); Ohralick v. Ohio State Bar Ass'n, 436 U.S. 447 (1978) (commercial speech subject to greater regulation than noncommercial speech).
68. For example, the right to interstate travel. See Memorial Hospital v. Maricopa County,
415 U.S. 250 (1974); Vlandis v. Kline, 412 U.S. 441 (1973); Dunn v. Blumstein, 405 U.S. 330
(1972); Wyman v. Bowens, 397 U.S. 49 (1970) (per curiam), aff'g, 304 F. Supp. 717 (N.D.N.Y.
1969); Shapiro v. Thompson, 394 U.S. 618 (1968). Cf. Edwards v. California, 314 U.S. 160
(1941) (exclusion of non-resident indigent person from state an unconstitutional barrier to interstate commerce).
69. For example, the right to vote. See Dunn v. Blumstein, 405 U.S. 330 (1972) (alternative
holding); Kramer v. Union Free School, 395 U.S. 621 (1969); Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966); Reynolds v. Sims, 377 U.S. 533 (1964); L. TRIBE, AMERICAN CONSTITtJTIONAL LAW § 16-10 (1978). Restrictions on candidates' access to the ballot are also closely
scrutinized. E.g., Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979);
American Party of Texas v. White, 415 U.S. 767 (1974); Storer v. Brown, 415 U.S. 724 (1974);
Williams v. Rhodes, 393 U.S. 23 (1968).
70. E.g., Skinner v. Oklahoma, 316 U.S. 535 (1942) (right to procreate). Cf. Cleveland Bd.
of Educ. v. LaFleur, 414 U.S. 113 (1973) (relying on the "irrebuttable presumption" doctrine).
Most litigation over reproductive freedom has concerned the right not to procreate, and has
proceeded under the due process, rather than equal protection, clause. E.g., Bellotti v. Baird,
443 U.S. 622 (1979) (abortion); Colautti v. Franklin, 439 U.S. 379 (1979) (abortion); Carey v.
Population Serv. Int'l, 431 U.S. 678 (1977) (contraception); Roe v. Wade, 410 U.S. 113 (1973)
(abortion). Cf. Griswold v. Connecticut, 381 U.S. 479 (1965) (source of married couples' right to
use contraceptives found by various Justices to be within the penumbra of explicit guarantees in
Bill of Rights, ninth amendment, and due process). See generally Comment, A Taxonomy of
Privacy: Repose, Sanctuary, and Intimate Decision, 64 CALIF. L. 11Ev. 1447 (1976).
71. In a number of cases, the Court refused to engage in strict scrutiny despite the fact that
the classification involved impinged on important interests. E.g., Ross v. Moffitt, 417 U.S. 600
(1974) (second, discretionary criminal appeal); Village of Belle Terre v. Boraas, 416 U.S. 1 (1974)
(choice of living companions); San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1 (1973)
(education); Jefferson v. Hackney, 406 U.S. 535 (1972) (welfare); Lindsey v. Normet, 405 U.S.
56 (1972) (housing); Dandridge v. Williams, 397 U.S. 471 (1970) (welfare).
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The issue presented by mediation/arbitration programs is whether
there is a fundamental right to have access to such programs, or alternatively, a fundamental right to avoid criminal prosecution simply
because an alternative method of dealing with alleged criminal conduct exists. These questions are likely to be answered in the negative.
The Supreme Court's refusal to recognize other important governmental benefits such as education 72 and welfare 7 3 as fundamental
rights suggests that participation in a mediation or arbitration program will not be held to be a fundamental right. The Court has been
unwilling to become involved with the "intractable economic, social,
and even philosophical problems" 74 presented by social welfare programs. It seems likely that this attitude would carry over to the
mediation/arbitration programs as well.
Decisions in areas more closely analogous to mediation/arbitration
programs support this conclusion. In Marshall v. United States, 75 for
example, the Supreme Court implicitly held that narcotics addicts
convicted of a crime have no fundamental right of admission to a
treatment program in lieu of imprisonment. 76 Although Marshall
dealt exclusively with post-conviction treatment, its holding has been
applied in a pretrial context as well. 77 Thus, there would seem to be
no fundamental right to rehabilitation, either before or after conviction. 78
Additionally, the Supreme Court has recognized only an extremely
limited fundamental right of access to state-sponsored dispute resolution machinery. In a line of cases dealing with access to civil courts,
72. San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1 (1973).
73. Dandridge v. Williams, 397 U.S. 471 (1970).
74. Id. at 487.
75. 414 U.S. 417 (1974).
76. Id. at 427-28.
77. See United States v. Palmer, 369 F. Supp. 1030 (N.D. Cal. 1974). Marshall dealt with
postconviction treatment under Title IIof the Narcotics Addict Rehabilitiation Act of 1966, 18
U.S.C. §§ 4251-4255 (1976). In Palmer, the district court applied Marshall to Title I of the Act,
28 U.S.C. §§ 2901-2906 (1976), which deals with pretrial treatment.
78. In contrast, a number of courts have held that those involuntarily committed to mental
hospitals have a constitutional right to treatment. Lynch v. Baxley, 386 F. Supp. 378, 391 (N.D.
Ohio 1974); Davis v. Watkins, 384 F. Supp. 1196, 1197 (M.D. Ala. 1974); Stachulak v.
Coughlin, 364 F. Supp. 686, 687 (N.D. Il1. 1973); Wyatt v. Stickney, 325 F. Supp. 781, 784, on
submission of proposed standards by defendants, 334 F. Supp. 1341 (M.D. Ala. 1971), enforced, 344 F. Supp. 373, 387 (M.D. Ala. 1972), affd in part, remanded in part, 503 F.2d 1305
(5th Cir. 1974). Cf. O'Connor v. Donaldson, 422 U.S. 563 (1975) (state may not involuntarily
confine, without more, a nondangerous individual capable of surviving in freedom). Because this
right attaches only on involuntary civil committment, however, no analagous right is likely to be
recognized in the mediation/arbitration context.
1979]
MEDIATION AND ARBITRATION
the Court has made it clear that such a right of access exists only
where the state's mechanism is the only available means to resolve
the dispute, and then only where the subject matter of the dispute
constitutes an independently recognized fundamental right. 79
The implication of these cases for mediation/arbitration programs is
clear. Seldom, if ever, will such programs deal with conflicts involving the fundamental constitutional rights of the participants, and in no
case will they be the only mechanism available to resolve the disputes. Moreover, the programs do no more than facilitate that which
the participants could do on their own through informal negotiation
or through formal civil actions where the dispute is judicially cognizable. 8 0
One might argue that the fundamental right in pretrial diversion is
not the positive right to treatment and rehabilitation, or to assistance
in the resolution of disputes, but rather the negative right to avoid
the criminal process and its inevitably adverse consequences. Such an
expansive right has not been recognized by the Supreme Court. 8 1 It
would be difficult to make a credible claim that, given probable cause
to arrest, a defendant has a fundamental right to avoid the threat of
punishment merely because a diversion program exists in which he
has no positive fundamental right to participate. It must be concluded, therefore, that there is only a remote possibility that a fundamental right to participate in mediation/arbitration programs will be
found. 82 As a consequence, one can reasonably predict that screening criteria will be subjected to the less exacting rational basis standard of review, and will therefore stand a much greater chance of
being upheld.
79. In Boddie v. Connecticut, 401 U.S. 371 (1971), the Court held it unconstitutional to
deny indigents a divorce because of their inability to pay filing fees. The Court stressed both
the fundamental nature of marriage and the state's monopolization of the means of terminating
this relationship. Id. at 374, 380. In subsequent cases involving bankruptcy proceedings, United
States v. Kras, 409 U.S. 434 (1973), and judicial review of administrative action, Ortwein v.
Schwab, 410 U.S. 656 (1973), the Court has upheld filing fee requirements, reasoning that,
unlike in Boddie, no independent fundamental rights were involved and alternative remedies
such as self-help were available.
80. These cases are distinguishable in that the mediation/arbitration diversion setting the
defendant's desire for admission does not stem so much from a desire to resolve the underlying
dispute as from a desire to escape from the criminal justice system. In the absence of a right to
avoid subjection to the criminal process, however, this distinction is immaterial. And it is clear
that no such right exists. See note 81 & accompanying text infra.
81. Cf., e.g., Younger v. Harris, 401 U.S. 37, 46 (1971) (the "cost, anxiety, and inconvenience of having to defend against a single criminal prosecution" does not constitute the sort of
irreparable injury required to obtain an injunction).
82. It makes no difference whether the right is cast as a substantive due process right of
access or avoidance, which could be claimed regardless of whether any arbitration/mediation
program in fact existed, or merely as a right of equal access or avoidance once the arbitration/
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2. Rational basis review
The rational basis approach to equal protection analysis requires
merely that a classification bear some rational relationship to a legitimate state purpose. Classifications must be based on factors that logically justify disparate treatment. This requirement generally is satisfied if the classification is not patently arbitrary; if any state of facts
reasonably can be conceived in support of a challenged classification,
it generally will be sustained. 83 Screening criteria for mediation/
arbitration programs thus will be upheld as long as they have some
relevance to the legitimate objectives of the program in question.
They will be overturned only where classes of persons are treated
differently on the basis of criteria wholly unrelated to the program's
purpose.
The laxity of this standard of review is demonstrated by Marshall v.
United States, 8 4 in which the Supreme Court reviewed the exclusion
of addicts with two prior felony convictions from a federal treatment
program. 8 5 Because the prior felony convictions could have been
based solely on possession of the narcotics to which the defendant
was addicted, such a classification does not necessarily identify those
who were less likely to respond to treatment. In addition, the felony
label itself is meaningless, since the same conduct may be a felony in
mediation alternative has been created. The Supreme Court has recognized, on occasion, a
fundamental right of equal treatment as to rights that need not have been granted by the state.
Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) (voting in state elections); Douglas
v. California, 372 U.S. 353 (1963) (criminal appeal); Griffin v. Illinois, 351 U.S. 12 (1956) (criminal appeal); see L. TRIBE, ANERICAN CONSTITUTIONAL LAW §§ 16-10, 16-11 (1978). More recent decisions dealing with access to the courts have pointedly refused to extend this approach.
See Ross v. Moffitt, 417 U.S. 600 (1974) (second, discretionary criminal appeal); Ortwein v.
Schwab, 410 U.S. 656 (1973) (judicial review of administrative action); United States v. Kras,
409 U.S. 434 (1973) (bankruptcy proceeding). These cases have effectively subordinated an
equal protection analysis to a restrictive view of substantive due process. Therefore, it will be of
little avail to assert only a right of equal access to the arbitration/mediation programs established
by the state. E.g., Lehnhausen v. Lake Shore Auto Parts, 410 U.S. 356, 364 (1973); Dandridge
v. Williams, 397 U.S. 471, 485 (1970); Ferguson v. Skrupa, 372 U.S. 726, 730 (1963); McGowan
v. Maryland, 366 U.S. 420, 426 (1961); Williamson v. Lee Optical Co., 348 U.S. 483, 491
(1955). Although the Court has rarely found the statutory goals to be invalid, it did strike down
a statute making households containing unrelated persons ineligible for food stamps. Department of Agriculture v. Moreno, 413 U.S. 528 (1973). There were indications that the statute
was aimed at preventing "hippie communes" from receiving food stamps, and the Court noted:
.'a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate
governmental interest." Id. at 534. Accord, Shapiro v. Thompson, 394 U.S. 618, 631 (1969)
(deterring immigration of indigents into state is impermissible state purpose); Loving v. Virginia, 388 U.S. 1, 11-12 (1967) (maintaining racial purity is impermissible state purpose).
83. See, e.g., City of New Orleans v. Dukes, 427 U.S. 297 (1976).
84. 414 U.S. 417 (1974).
85. See 18 U.S.C. §§ 4251-4255 (1976).
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MEDIATION AND ARBITRATION
one jurisdiction and a misdemeanor in another. 86 The unfairness of
this elevation of form over substance is compounded by the practice
of plea bargaining. Because defendants bargain for both charge and
penalty, the label of a conviction often does not completely reflect the
substance and gravity of the conduct giving rise to it. Despite the
arguable irrationality of excluding all addicts with two prior felony
convictions, the Supreme Court rejected an equal protection challenge. The Court concluded that Congress rationally could have postulated that an addict with more than one felony conviction is less
likely to benefit from treatment than others, might present an impediment to the successful treatment of other participants, and poses a
greater threat to society upon his release than do addicts with fewer
7
convictions. 8
The limited scope of review exercised by the Supreme Court in
Marshall, which is likely to be utilized in reviewing the screening
criteria of mediation/arbitration programs, is reflected in Chief Justice
Burger's opinion:
It should be recognized that the classification selected .. .is not
one which is directed "against" any individual or category of persons, but rather it represents a policy choice in an experimental
program made by that branch of Government vested with the
power to make such choices. The Court has frequently noted that
legislative classifications need not be perfect or ideal. The line
drawn by Congress at two felonies, for example, might, with as
instead at one, but this was for
much soundness have been drawn
88
legislative, not judicial choice.
As a final caveat, it should be noted that although the rationality
standard is extremely lax, the constitutionality of all screening criteria
is not preordained. One cannot be certain what goals the reviewing
court will find in a given program. More importantly, one cannot
predict with total accuracy what criteria the court will consider to be
rationally related to these goals. 89
86. See id. at § 4251(d), which defines "felony" by reference to the law of the state where
the offense was committed.
87. Marshall v. United States, 414 U.S. 417, 425, 429 (1974).
88. Id. at 428 (citations omitted).
89. That rationality is in the eye of the beholder is suggested by comparing Chief Justice
Burger's majority opinion in Marshall, id. at 425-30, with Justice Marshall's dissent, id. at
433-40. Other examples abound. Compare, e.g., Department of Agriculture v. Moreno, 413
U.S. 528, 535-36 (1973) with id. at 546 (Rehnquist, J., dissenting) and Dandridge v. Williams,
397 U.S. 471, 485 (1970) with id. at 508-30 (Marshall, J.,dissenting).
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3. Midlevel review
In a number of instances, the Supreme Court has applied a standard of review that lies between the exacting strict scrutiny test and
the lenient rational relationship test. Under this standard, classifications must serve "important" governmental objectives, and they must
be "reasonably" or "substantially" related to the achievement of those
objectives. When engaging in this midlevel scrutiny, the Court has
been unwilling to hypothesize possible justifications for state schemes;
instead, it has insisted that the state come forward with an explanation for its discriminatory policies or practices. 90
Whether courts will apply midlevel scrutiny to the screening
criteria used by the mediation/arbitration programs cannot be predicted. Aside from classifications based on gender 91 and illegitimacy, 92 there is little indication of what other classifications will
command this level of scrutiny. At least one commentator has
suggested that classifications jeopardizing important but not fundamental interests have given rise to midlevel scrutiny. 93 Decisions to
the contrary, 9 4 however, indicate that it is unlikely that a court will
subject diversion program screening criteria to such scrutiny.
4. Some general guidelines
Generally the legitimacy of specific criteria will turn on their scope
and effect. The broader the exclusionary criteria, the greater the possibility of unconstitutional overbreadth. 95 The problem of over-
90. L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 16-30 (1978); Gunther, The Supreme Court,
1971 Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a
Newer Equal Protection, 86 HcAv. L. REv. 1, 44-46 (1972).
91. See, e.g., Caban v. Mohammed, 441 U.S. 380 (1979); Orr v. Orr, 440 U.S. 268 (1979);
Califano v. Webster, 430 U.S. 313 (1977); Craig v. Boren, 429 U.S. 190, 199, 204 (1976).
92. See, e.g., Lalli v. Lalli, 439 U.S. 259 (1978); Trimble v. Gordon, 430 U.S. 762 (1977);
Matthews v. Lucas, 427 U.S. 495 (1976). But cf. Fiallo v. Bell, 430 U.S. 787 (1977) (limited
scrutiny of illegitimacy classification in federal immigration statute); Labine v. Vincent, 401 U.S.
532 (1971) (limited scrutiny of illegitimacy classification in state intestacy statute), criticized in
Trimble v. Gordon, 430 U.S. at 776 n.17.
93. See L. TRIBE, AMERICAN CONSTITUTIONAL LAwv § 16-31, at 1089-90 (1978).
94. See cases cited note 71 supra.
95. The number of screening criteria employed is not important to the issue of constitutionality. The sole question is their effect. In fact, it would appear that if their effect is solely one of
guidance, the greater the number the better, since the degree to which they will provide that
guidance will increase in proportion to their number. The probable legality of the criteria is
affected primarily by the narrowness of their scope and the corresponding intensity of their
relevance.
1979]
MEDIATION AND ARBITRATION
breadth is minimized, however, to the extent that such criteria are
guidelines for discretionary decisionmaking rather than mandatory
exclusionary standards.
Mandatory rules should be drawn as narrowly as possible, in order
to ensure that they apply to a class of individuals only in the specific
situations to which they are most relevant. Employing overly broad,
inflexible rules gives rise to the problem of their application in inappropriate situations. The exclusion of defendants on the basis of
homosexuality offers a good example. A general mandatory standard
denying participation solely on the basis of homosexuality might not
withstand even the most lenient judicial review. By itself, a defendant's sexual preference has no rational relationship to a crime such as
shoplifting, to his or her likelihood of success in a diversion program,
or to the appropriateness of suspending prosecution. In conjunction
with an offense such as solicitation, however, the criterion stands a
much better chance of survival as a basis for exclusion. Denying admission only in specific situations where the status or condition of
homosexuality is a factor in the alleged crime and where the program
is not equipped to handle the specialized needs of such persons, a
96
rational relationship does exist to permit exclusion.
Problems can be avoided, therefore, if programs promulgate mandatory criteria only where they are clearly essential to the program's
goals. 97 If a program is designed for adult offenders, for example, a
mandatory age criterion must be established to ensure that it does
not exceed its scope. Similarly, programs designed to address only
domestic disputes can legitimately employ criteria based on the relationship of the parties. And certainly, since the dispute resolution
effort requires the participants' cooperation, programs could, and logically should, require the consent of the alleged victim before diversion is allowed. The constitutionality of such criteria will be assured
by their obvious relationship to legitimate goals.
Screening criteria, then, should be promulgated with the goal of
directed flexibility. Those making screening decisions should be limited by mandatory criteria only to the extent necessary to ensure that
the scope of the programs is not exceeded, and that factors essential
to the achievement of those goals are given appropriate consideration.
96. Also, the status, when viewed in light of the nature of the offense, may give rise to an
increased need for the exercise of prosecutorial discretion in the pursuit of criminal penalties.
The special problems presented by the prosecutor's involvement in screening are discussed at
notes 102-05 & accompanying text infra.
97. For a discussion of the legality of criteria dealing with the defendant's past offenses,
employment status, or residency, see LEcAL IssuEs, supra note 10, at 3-10.
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This limiting and narrowing of the mandatory rules increases flexibility, but it may render the screening process less convenient administratively, since it leaves so much to discretion. The insulation of the
screening process from judicial invalidation, however, may require
such a sacrifice.
5. The practical realities of proof
Proof is a critical element in the success of equal protection challenges to screening decisions. Two factors substantially control the
ease with which a person denied access to a mediation/arbitration
program can establish his claim: (1) the substantive standard of review, and (2) the discretionary nature of the screening process.
Further difficulties will arise if the courts interpret the screening decision as a prosecutorial act of selective law enforcement.
In any equal protection action, the challenger must establish intentional discrimination and its basis. It is not enough to show that an
action has a disproportionate impact on a given class; the unequal
effect must have been intended. 98 If the reasons for screening decisions are unstated, 9 9 challengers will be compelled to establish intent
by contrasting the personal characteristics of those excluded from the
program with the characteristics of those admitted; if a sufficiently
gross disparity is shown, an inferrence is raised that discrimination
was intentional. 100 This approach may be inadequate, however,
98. Personnel Adm'r v. Feeney, 442 U.S. 256 (1979); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976);
Oyler v. Boles, 368 U.S. 448 (1962).
99. Cf. Sledge v. Superior Court, 11 Cal. 3d 70, 76 n.6, 113 Cal. Rptr. 28, 32 n.6, 520
P.2d 412, 416 n.6 (1974) (statement of reasons required only as to prosecutor's determination
whether minimum eligibility criteria were met). In Sledge, the diversion program was created
by the legislature. A more explicit statement of reasons may be required where a program is
established by court rule. See State v. Leonardis, 71 N.J. 85, 113-19, 363 A.2d 321, 336-39
(1976), aff'd on rehearing, 73 N.J. 360, 375 A.2d 607 (1976); note 53 supra. It should be noted
that requiring a statement of reasons only alleviates the problem of establishing why tile
discretionary action was taken. It does not affect the standard by which the substantive validity
of the action is tested.
100. Cf. Gomillion v. Lightfoot, 364 U.S. 339 (1960) (finding intentional discrimination in a
voter redistricting measure changing the shape of the district from a square to a 28-sided figure
and having the effect of excluding virtually all of the district's 400 black voters without affecting
any of its white voters); Yick Wo v. Hopkins, 118 U.S. 356 (1886) (finding intentional discrimination in the administration of a licensing law where the applications of 200 Chinese applicants
were denied, but those of all non-Chinese applicants but one were granted). But cf. Personnel
Adm'r v. Feeney, 442 U.S. 256 (1979) (finding no intentional discrimination against women in a
statute granting veterans a preference in state employment, even though over 98 percent of the
veterans were male).
The Supreme Court has described a number of other ways in which discriminatory intent
might be shown:
1979]
MEDIATION AND ARBITRATION
since necessary data may not be available in sufficient quantity to
allow a statistically valid sample. Further, even if discriminatory intent could be established as one factor in the challenged decision,
victory is far from assured. This serves only to shift the burden to the
government, which is allowed to show that it would have taken the
same action for reasons independent of the intent. 101
Additional problems arise if the screening decision is interpreted as
a discretionary prosecutorial decision relative to the enforcement of
the criminal laws. Although the screening process may vary from one
program to another, the prosecutor is invariably a central figure,
since he must suspend criminal prosecution pending the outcome of
arbitration and dismiss the charges if the program is completed successfully. 1 02 Consequently, the screening decision is based not only
on whether the defendant is likely to succeed in the diversion program, but also on whether it is appropriate to prosecute him. In spite
of the fact that a defendant is likely to succeed in a mediation program, there may be legitimate law enforcement reasons to pursue his
criminal prosecution.
Because the number of legitimate factors that may influence prosecutorial decisionmaking is so large, 103 and because those reasons are
The historical background of the decision is one evidentiary source, particularly if
it reveals a series of official actions taken for invidious purposes. The specific sequence of events leading up to the challenged decision also may shed some light on
the decisionmaker's purposes ....
The legislative or administrative history may be highly relevant, especially where
there are contemporary statements by members of the decisionmaldng body, minutes of its meetings, or reports. In some extraordinary instances the members
might be called to the stand at trial to testify concerning the purpose of the official
action, although even then such testimony frequently will be barred by privilege.
Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 267-68 (1977)
(citations omitted). In its most recent decision in this area, the Court has made clear that mere
awareness of unequal impact is insufficient to show intent, as is the tort law presumption that
one intends the natural consequences of his act. Personnel Adm'r v. Feeney, 442 U.S. at 256.
101. Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 270
n.21 (1977). See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 285-87 (1977). See also
AUTHOR'S SURVEY, supra note 1.
102. In some programs the prosecutor makes the diversion decision himself, in others he has a
veto over it. There may be state constitutional limitations on the extent to which the prosecutor
may be given absolute veto power. People v. Superior Court, 11 Cal. 3d 59, 65, 113 Cal. Rptr.
21, 25, 520 P.2d 405, 409 (1974) (prosecutorial veto over a trial judge's decision to divert a
defendant to a narcotics treatment program violates the separation of powers). See Pugach v.
Klein, 193 F. Supp. 630, 635 (S.D.N.Y. 1961).
103. These factors include:
the likelihood of conviction, turning on choice of a strong case to test uncertain law,
the degree of criminality, the weight of the evidence, the credibility of witnesses,
precedent, policy, the climate of public opinion, timing, and the relative gravity of
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virtually never stated, establishing the controlling criteria in any
given case may be impossible. Even if the criteria are established,
the likelihood of a successful challenge to them is further diminished
by the difficulty of establishing that the criteria are irrational. This is
attributable to two factors. First, the goals of the criminal justice system, against which the reasonableness of law enforcement decisions
must be measured, are more numerous and more complex than those
of a single diversion program. Second, because neither the goals of
the criminal justice system nor the nature of the prosecutorial function are clearly defined, there is no clear analytical framework within
which to evaluate the rationality of prosecutorial decisions. Too many
practical, policy, and theoretical considerations enter into each prosecutorial decision for the courts to intrude except in instances of
patent abuse. 104 Even if judges could assess fairly these considerations, the doctrine of the separation of powers stands as a barrier to
judicial interference with the exercise of the prosecutor's discretion. 105
C. Due Process
1. Protected interest in liberty or property
The state must provide due process protections only where its action threatens a constitutionally protected liberty or property interest.
In many diversion programs no such interest is involved.
The concepts of liberty and property under the fourteenth amendment are broad and have "purposely been left to gather meaning
the offense. In weighing these factors, the prosecutor must apply responsible standards, based, not on loose assumptions, but, on solid evidence balanced in a scale
demanding proof beyond a reasonable doubt to overcome the presumption of innocence ....
Still other factors are the relative importance of the offense compared with the
competing demands of other cases on the time and resources of investigation, prosecution and trial.
Id. (footnote omitted).
104. There is a large body of case law recognizing the necessity of vesting broad discretion in
the prosecutor. See, e.g., Oyler v. Boles, 368 U.S. 448 (1962); United States v. Thompson, 251
U.S. 407 (1920); Confiscation Cases, 74 (7 Wall.) U.S. 454 (1868); United States v. Berrigan, 482
F.2d 171 (3d Cir. 1973); Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970); Newman v. United
States, 382 F.2d 479 (D.C. Cir. 1967); Moses v. Kennedy, 219 F. Supp. 762 (D.D.C. 1963),
aff d, 342 F.2d 931 (D.C. Cir. 1965); Pugach v. Klein, 193 F. Supp. 630 (S.D.N.Y. 1961). See
generally Givelber, The Application of Equal Protection Principles to Selective Enforcement of
the Criminal Law, 1973 U. ILL. L.F. 88; Comment, The Right to Nondiscriminatory Enforcement of State Penal Laws, 61 COLUNs. L. REv. 1103 (1961).
105. See, e.g., Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir.
1973); United States v. Cox, 342 F.2d 167 (5th Cir. 1965).
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MEDIATION AND ARBITRATION
from experience." 106 Liberty has not been confined to mere freedom from bodily restraint or to specifically guaranteed constitutional
rights. 10 7 Similarly, property extends beyond real estate, chattels, or
money. 108 Protected liberty and property interests can be created
and defined by formal1 0 9 and informal' 1 0 understandings with the
111
state, whether express or implied, that give rise to "entitlements"
to benefits. This occurs when the state extends a right or benefit,
even when it has no obligation to do so. If by such a gesture the
recipient can legitimately expect that enjoyment of the benefit will
continue, an "entitlement" to the right or benefit arises. Thus, for
example, while the state need not provide welfare benefits or grant
parole, once it does so the state creates an "entitlement" that is protected under the due process clause. 112 An expectation of a benefit
106. Board of Regents v. Roth, 408 U.S. 564, 571 (1972) (quoting National Mut. Ins. Co. v.
Tidewater Transfer Co., 337 U.S. 582, 646 (1949) (Frankfurter, J., dissenting). See generally
Monaghan, Of "Liberty" and "Property", 62 CORNELL L.Q. 405 (1977).
107. For a classic statement of the breadth of protected liberty interests, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923):
Without doubt, [liberty] denotes not merely freedom from bodily restraint but also
the right of the individual to contract, to engage in any of the common occupations
of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally
to enjoy those privileges long recognized at common law as essential to the orderly
pursuit of happiness by free men.
Id. Cf. Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954) (racial segregation in education is a
denial of liberty); Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring) (infliction of "grievous loss" without notice or opportunity for hearing denies
due process).
108. See, e.g., Perry v. Sindermann, 408 U.S. 593 (1972); Goldberg v. Kelly, 397 U.S. 254
(1970).
109. See, e.g., Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1
(1979) (liberty interest created by statute); Goldberg v. Kelly, 397 U.S. 254 (1970) (property
interest created by statute).
110. See, e.g., Perry v. Sindermann, 408 U.S. 593, 601 (1972) (in spite of lack of formal
contractual provision, professor entitled to continued employment due to "mutually explicit understanding"); Morrissey v. Brewer, 408 U.S. 471, 482 (1972) ("implicit promise" parole would
be revoked only for violation of parole conditions). Recent decisions have exhibited a more
formalistic approach to the entitlement process, focusing on explicit rules of state law to the
exclusion of more informal understandings. See Meachum v. Fano, 427 U.S. 215 (1976); Bishop
v. Wood, 426 U.S. 341 (1976).
111. See Goldberg v. Kelly, 397 U.S. 254, 262 (1970), in which the Supreme Court first used
this term.
112. Goldberg v. Kelly, 397 U.S. 254 (1970) (welfare); Morrissey v. Brewer, 408 U.S. 471
(1972) (parole); accord, Board of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78 (1978)
(public education); Mathews v. Eldridge, 424 U.S. 319 (1976) (social security disability benefits);
Goss v. Lopez, 419 U.S. 565 (1975) (public education); Gagnon v. Scarpelli, 411 U.S. 778 (1973)
(probation); Perry v. Sindermann, 408 U.S. 593 (1972) (public employment); Bell v. Burson, 402
U.S. 535 (1971) (driver's license).
The result is different where the benefit has not yet been accorded. See notes 114-21 &
accompanying text infra.
48
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can be a protected interest for due process purposes only where it is
objectively reasonable, however; it must be based on a legitimate expectation fostered by the state, not merely on an abstract need or
desire. 113
The issue of due process arises in three stages of the mediation/
arbitration process: first, when the decision is made to grant or deny
admission to the program; second, at the dispute resolution hearings;
and third, when the decision is made to terminate a defendant's participation and to return him to the criminal court for prosecution because of an alleged failure to comply with the settlement agreement.
There seems to be no liberty or property interest involved at either
the screening stage or the dispute resolution stage. At the termination stage, however, property interests are clearly at stake, and procedural fairness is an imperative.
a. Screening stage
The recent Supreme Court decision in Greenholtz v. Inmates of the
Nebraska Penal and Correctional Complex, 114 leaves little question
that the existence of a diversion alternative does not give rise to a
5
protected entitlement to admission into such a program."1
Greenholtz involved parole eligibility, but the Court's reasoning indicates that a defendant's interest in being admitted to a mediation or
arbitration program is constitutionally insignificant.
113. See, e.g., Meachum v. Fano, 427 U.S. 215 (1976) (no entitlement to remain at prison
with favorable conditions where prison officials may order transfer for any reason or no reason at
all); Bishop v. Wood, 426 U.S. 341 (1976) (no entitlement to continued public employment
where statute provided that government may dismiss employee at will); Board of Regents v.
Roth, 408 U.S. 564 (1972) (no entitlement to continued employment where state fostered no
expectation that contract would be renewed). Whether one's interest in a benefit is a mere hope
or rises to the level of justifiable expectation seldom can be predicted with great accuracy.
Compare, e.g., Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 11
(1979) (prisoner's interest in obtaining parole a "mere hope"), with id. at 20 (Powell, J., dissenting in part) (interest is justifiable expectation), and id. at 26 (Marshall, J., dissenting in part)
(same).
114. 442 U.S. 1 (1979).
115. Even though the mere existence of a diversion program does not give rise to an entitlement to admission, such an entitlement may be created by the statute or rules establishing the
program. Thus, after the Court in Greenholtz held that the existence of parole did not itself
create an entitlement, it held that the specific language of Nebraska's parole statute did. The
statute provided that parole "shall" be granted to eligible offenders unless it is found that release should be deferred. NEB. REV. STAT. §§ 83-1, 114(1) (1978). This language gave rise to a
presumption that parole would be granted. 442 U.S. at 12. Diversion programs can avoid creating an entitlement to admission by explicitly providing that screening decisions are discretionary.
1979]
MEDIATION AND ARBITRATION
The Court previously had held that the revocation of parole involves a protected liberty interest. '1 6 In distinguishing the two situations, the Court regarded the impact of an erroneous decision to
revoke parole as far more serious than the impact of an erroneous
decision not to grant parole, and simply concluded that " It]here is a
human difference between losing what one has and not getting what
one wants.'
"117
The Court also asserted that the nature of the parole release decision prevents the prisoner's interest in parole from amounting to a
legitimate entitlement. 118 The Court saw the institution of parole as
being in an experimental stage; few certainties exist with regard to
the justifications given for it-rehabilitation and deterrence. 119 In
addition, each decision "involves a synthesis of record facts and personal observations filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both
*..."120 Because
for the individual inmate and for the community .
the concepts upon which the parole process is based are so abstract,
and because decisions based upon a pursuit of those concepts are so
subjective and predictive, the Court concluded that the inmate's desire for release must also be seen as abstract. 11
A criminal defendant's desire to participate in a mediation or arbitration program is similarly abstract. Since current programs have few
explicit goals or proven objective standards to determine who should
be admitted, screening decisions are both subjective and predictive.
In every sense the programs are experimental, involving sensitive
choices based upon a synthesis of facts and personal observations filtered through experience. Therefore, absent an explicit provision in
the enabling legislation or rules creating an entitlement to participate,
116. Morrissey v. Brewer, 408 U.S. 471 (1972).
117. 442 U.S. at 10 (quoting Friendly, "Some Kind of Hearing," 123 U. PA. L. REv. 1267,
1296 (1974)). See generally Comment, Entitlement, Enjoyment, and Due Process, 1974 DUKE
L.J. 89.
118. 442 U.S. at 11.
119. Id. at 13.
120. Id. at 8.
121. Id. In effect, the Court used an analysis traditionally used, not to determine the existence of the entitlement in the first instance, but to determine what process is due after an
entitlement has been found, see, e.g., Mathews v. Eldridge, 424 U.S. 319 (1976). Applying the
more traditional analysis to the factors discussed in the text would probably lead to the conclusion that even if an entitlement to admission does exist, only a minimal amount of procedural
protection needs to be provided. See Greenholtz v. Inmates of Neb. Penal & Correctional
Complex, 442 U.S. 1, 16 (1979).
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there are no inherent interests that require procedural protection at
the screening stage. 122
123
b. Dispute resolution stage
Whether any process is due participants in the dispute resolution
stage will turn on whether the settlement agreement or award is enforceable in civil court. If, as is the case in most programs, the agreement is not judicially enforceable, no interest is jeopardized by
participation in the programs, whether the mediation or arbitration
model is followed. Since compliance is wholly voluntary, there is no
government-compelled deprivation. 124 Probably the worst that will
happen to a defendant by being subjected to unfair procedures in the
resolution stage is that, under a mediation model, no settlement will
be reached, or, if a settlement is imposed through arbitration, the
defendant will choose to ignore it. 125 In either event, the
defendant/participant will be returned to proceed in the criminal process. He will have lost nothing but his time, which by itself is probably constitutionally insignificant. 126
122. The converse is not necessarily true, however. Where the programs have created substantive rights, warnings purporting to deny procedural rights may be held void. See notes
133-42 & accompanying text supra. Such disclaimers will be effective only to the extent that
they mean that voluntary participation coupled with notice of them constitutes a waiver of the
procedural right in question. See generally notes 231-52 & accompanying text infra.
123. Discussion of whether a protected interest exists at this stage may be entirely academic,
since participants arguably waive their due process rights by participating with knowledge of
procedures to be followed. The special problems of waiver of constitutional rights in the
mediation/arbitration setting are discussed at notes 231-52 & accompanying text infra.
124. This statement must be qualified, however. Even in the absence of judicial enforcement, mediation/arbitration programs have available indirect methods of compelling compliance.
They can, for example, threaten to return a defendant to the criminal system for prosecution on
the original charge. It is unclear what effect the existence of such powers has on the determination of whether due process rights exist at the dispute resolution stage.
Even where the agreement is enforceable, however, due process may not be required in the
dispute resolution stage if only a de minimis deprivation is imposed. See Ingraham v. Wright,
430 U.S. 651, 674 (1977); Goss v. Lopez, 419 U.S. 565, 576 (1975); Board of Regents v. Roth,
408 U.S. 564, 570 & n.8 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 342 (1969)
(Harlan, J., concurring). Both policy and practical considerations, however, militate against any
effort to separate out in advance those cases in which the arbitrator might impose only a de
minimis deprivation.
125. There may be, however, an indirect consequence of participation in a diversion program. One whose participation is revoked may be given especially unfavorable treatment by the
prosecutor, and his failure in the program may be taken into account by the judge in sentencing. See Hearings on H.R. 9007 and S. 798 Before the Subcomm. on Courts, Civil Liberties,
and the Administration of Justice of the House Comm. on the Judiciary, 93d Cong., 2d Sess. 75
(1974) (testimony of the National Legal Aid and Defender Association).
126. See Barker v. Wingo, 407 U.S. 514, 530-33 (1972). In Barker, the Court discussed the
factors that should be considered in determining whether a defendant's right to a speedy trial
1979]
MEDIATION AND ARBITRATION
c. Revocation stage
If noncompliance with the settlement agreement is alleged, the
program must decide whether the defendant did in fact breach the
agreement, and, if he did, whether to send him back to the criminal
court for prosecution on the original charge. The defendant
threatened with revocation clearly has a right to due process, 127 and
at least one state court has so held. 128 This right necessarily arises
from the diversion process itself, in which the expectation of dismissal
of the criminal charges rises to the level of an entitlement.
The Supreme Court has held consistently that there is a legitimate
claim of entitlement to an existing benefit if the government has
created the expectation that it would be revoked only on the occurrence of a certain event. Thus, welfare recipients are entitled to continue receiving benefits as long as they meet the statutory eligibility
requirements, 129 and parolees are entitled to remain free on parole as
long as they comply with the parole conditions. 130 The diversion
process is similarly founded on an explicit understanding between the
defendant and the state that the criminal charges will be suspended
and ultimately dismissed if the defendant complies with the terms of
the settlement. This is true whether or not the terms of the agreement or the procedures followed in reaching it were fair. Since the
government is contractually bound to dismiss the criminal charge if
the defendant complies with the terms of the settlement, the question of noncompliance is critical. It therefore must be resolved
through procedures consistent with due process. 131
has been denied. The length of the delay is only one factor; the others are "the reason for the
delay, the defendant's assertion of his right, and prejudice to the defendant." Id. at 530.
127. How these due process issues will be litigated is an open question. One possibility is to
raise them in a motion to dismiss the indictment or information or in a suit to enjoin the
prosecution. It seems strange, however, that a criminal action could be aborted merely because
of procedural defects in a collateral proceeding.
Such a result possesses all the weaknesses of the exclusionary rule, and little of that rule's
strengths. But cf. Sledge v. Superior Court, 11 Cal. 3d 70, 75-76, 113 Cal. Rptr. 28, 32, 520
P.2d 412, 416 (1974) (one found ineligible for diversion may challenge exclusion on appeal of
criminal conviction).
128. State v. Lebbing, 158 N.J. Super. 209, 385 A.2d 938 (1978).
129. Goldberg v. Kelly, 397 U.S. 254 (1970).
130. Morrissey v. Brewer, 408 U.S. 471 (1972).
131. See Wolff v. McDonnell, 418 U.S. 539, 558 (1974). "Since prisoners in Nebraska can
only lose good-time credits if they are guilty of serious misconduct, the determination of
whether such behavior has occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed." Id.
Governmental action that stigmatizes an individual can infringe upon a liberty interest sufficiently to give rise to a requirement of procedural protection as well. See Wisconsin v. Constantineau, 400 U.S. 433 (1971); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951).
But cf. Paul v. Davis, 424 U.S. 693 (1976) (stigma must be accompanied by deprivation of a
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A number of programs have attempted to avoid due process requirements at the revocation stage by specifically providing in the
description of the program that the determination of noncompliance
will be made without a hearing. 132 Such disclaimers of procedural
protection appear to be unconstitutional. While the state can control
when process is due by creating or refusing to create entitlements,
once an entitlement is created, the state cannot similarly control what
process is due.
In Arnett v. Kennedy1 33 the Supreme Court addressed a similar
procedural disclaimer, and a majority of the Court held it unconstitutional. Kennedy, a federal employee, was discharged under a statute
providing, first, that dismissal would only be for cause, and, second,
that employees had no right to a predismissal evidentiary hearing.1 34 He sued for reinstatement, alleging the statute denied him
due process. Justice Rehnquist's plurality opinion asserted that when
a substantive right, such as job security, is created and at the same
time a limitation is placed on the procedure by which that right will
be protected, one may not claim the benefit of the substantive right
while challenging the procedural limitation; one "must take the bitter
with the sweet."' 13 5 Justice Rehnquist thus suggested that substantive rights can be redefined and diminished by specific procedural
disclaimers.
This reasoning, if accepted, would legitimize the summary revocation procedures followed by some mediation/arbitration programs.
Justice Rehnquist's analysis, however, was rejected by a majority of
the Court. 136 As Justice Powell stated, "[wihile the legislature may
more tangible interest, and there must be state law entitlement to present enjoyment of good
reputation). The mere act of referring a defendant back to the criminal court for prosecution,
however, would not appear to create a stigma sufficient to infringe upon such an interest. Even
if the limitations imposed by Paul are put aside, it is unlikely that stigma could be shown, since
neither the termination of the mediation/arbitration process nor the reasons for it are publicized. See Codd v. Velger, 429 U.S. 624 (1977); Bishop v. Wood, 426 U.S. 341 (1976).
132. AUTHOR'S SURVEY, supra note 1.
133. 416 U.S. 134 (1974).
134. 5 U.S.C. § 7501 (1976). Prior to his termination, Kennedy was provided with 30 days
advance written notice of the proposed removal action and of the charges that had been made,
given a reasonable time to file a written response, and promptly furnished with a decision.
Arnett v. Kennedy, 416 U.S. 134, 137-38 (1974). Granting an evidentiary hearing was within
the discretion of the individuals directing the removal, but none was held. Id. at 140.
135. Arnett v. Kennedy, 416 US. 134, 154 (1974).
136. Justices Douglas, Brennan, White, Marshall, Blackmun, and Powell refused to endorse
Justice Rehnquist's approach. In spite of this, the Court upheld Kennedy's dismissal. While
only Chief Justice Burger and Justice Stewart joined in Justice Rehnquist's opinion, Justices
White, Powell, and Blackmun concluded that the procedures accorded satisfied the requirements of due process. Id. at 171-203 (White, J., concurring in part and dissenting in part); id. at
164-71 (Powell, J., joined by Blackmun, J., concurring in part and concurring in the result in
part). On this aspect of Arnett, see notes 189-91 infra.
MEDIATION AND ARBITRATION
elect not to confer a property interest ... , it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards .... [T]he adequacy of
statutory procedures for deprivation of a statutorily created property
'
interest must be analyzed in constitutional terms. "137
The latest pronouncement from the Court on this issue, confuses
the state of the law. In Bishop v. Wood, 138 a police officer was dismissed without a hearing pursuant to a city ordinance that was similar
on its face to the statute involved in Arnett in that it appeared to
create an entitlement and simultaneously to deny most procedural
protections. 139 The officer claimed that the discharge deprived him
of a constitutionally protected interest in his employment without due
process of law. Deferring to the district court's interpretation of the
ordinance, the Court, in a five-to-four decision, held that since the
officer's position was subject only to the "will and pleasure of
the city," 140 Bishop's expectancy of continued employment was not a
sufficient claim of entitlement to give rise to due process guarantees.
The dissenting Justices asserted that both the ordinance and common practices did create a reasonable expectation on the part of the
officer that he would retain his job until cause was shown to remove
him. 141 To allow a denial of procedural safeguards by the disclaimers
in the ordinance, they argued, was to adopt the very principle rejected by a majority in Arnett. The majority in Bishop was satisfied
that the city ordinance addressed only the procedures for determining
"cause," and did not affirmatively grant a substantive right of job tenure absent cause. Because of this dispute as to the meaning of the
ordinance, and because of the narrow margin of decision, Bishop does
not necessarily overrule Arnett. Had the majority interpreted the or-
137. Arnett v. Kennedy, 416 U.S. 134, 167 (1974) (Powell, J.,
joined by Blackmun, J.,concurring in part and concurring in the result in part) (footnote omitted). Accord, id. at 177-86
(White, J., concurring in part and dissenting in part); id. at 203 (Douglas, J., dissenting); id. at
207-11 (Marshall, J., joined by Douglas & Brennan, JJ., dissenting).
138. 426 U.S. 341 (1976).
139. The ordinance provided that an employee would be dismissed if he "fails to perform
work up to the standard of the classification held, or continues to be negligent, inefficient, or
unfit to perform his duties," and that a dismissed employee "shall be given written notice of his
discharge setting forth the effective date and reasons for his discharge if he shall request such a
notice." MARION, N.C., PERSONNEL ORDINANCE art. II, § 6, quoted in Bishop v. Wood, 426
U.S. 341 (1976).
140. Bishop v. Wood, 377 F. Supp. 501, 504 (W.D.N.C. 1973), aff'd, 498 F.2d 1341 (4th
Cir. 1974), affd, 426 U.S. 341 (1976).
141. 426 U.S. at 350-55 (Brennan, J., joined by Marshall, J.,dissenting); id. at 355-61
(White, J., joined by Brennan, Marshall & Blackmun, JJ., dissenting); id. at 361 (Blackmun, J.,
joined by Brennan, J., dissenting).
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dinance as the dissenters did, and found an entitlement, there is no
indication that it would have allowed the ordinance to dictate what
process was due.
In summary, where mediation/arbitration programs have created
substantive entitlements, as they have at the revocation stage, attempted procedural disclaimers will be ineffective. 142 Constitutional
standards will dictate what procedural protections must be afforded at
termination hearings. These protections are discussed in the next section of this article.
2. What process is due?
Assuming for the purpose of discussion that due process rights exist
at both the dispute resolution and revocation stages of the
mediation/arbitration programs, the question remains as to what procedural safeguards are required. Answering this question is difficult,
since the concept of due process is flexible, and is ultimately related
to time, place, circumstances, and consequences. 143 The purpose of
due process is to minimize errors and reduce arbitrary action. 144 Its
requirements, therefore, vary from one situation to the next 145 because of varying risks of error and acceptable levels of arbitrariness.
This balancing approach has been illustrated in a number of cases.
In Goss v. Lopez, 146 for example, the Supreme Court decided that
students are entitled to due process before being suspended for misconduct. The Court determined, however, that notice could be oral,
and that the hearing could immediately follow the notice and amount
to no more than a face-to-face confrontation. 147 Such informal pro142. Although the issue was not addressed in Arnett, participation following notice of a procedural disclaimer might be construed as a waiver of procedural rights. The issue of waiver is
discussed at notes 231-52 & accompanying text infra.
143. Cafeteria Workers Local 473 v. McElroy, 367 U.S. 886, 895 (1961) ("The very nature of
due process negates any concept of inflexible procedures universally applicable to every imaginable situation.'). Accord, Arnett v. Kennedy, 416 U.S. 134, 155 (1974) ("The types of 'liberty'
and 'property' protected by the Due Process Clause vary widely, and what may be required
under that Clause in dealing with one set of interests which it protects may not be required in
dealing with another set of interests.").
144. See L. TRIBE, AMERsCAN CONSTITUTIoNAL LAW § 10-7 (1978). Professor Tribe argues,
however, that "there is intrinsic value in the due process right to be heard, since it grants to
the individuals or organizations against whom government decisions operate the chance to participate in the processes by which those decisions are made, an opportunity that expresses their
dignity as persons." Id. at 502 (footnote omitted).
145. See, e.g., Arnett v. Kennedy, 416 U.S. 134, 155 (1974) (plurality opinion); Morrissey v.
Brewer, 408 U.S. 471, 481 (1972); Cafeteria Workers Local 473 v. McElroy, 367 U.S. 886, 895
(1961).
146. 419 U.S. 565 (1975).
147. Id. at 582-85.
1979]
MEDIATION AND ARBITRATION
cedures suffice because the consequences of temporary suspension
are relatively slight, and because in the school setting there is a justification and a need for immediate action. 148 In Goldberg v.
Kelly, 149 involving welfare benefits, a more serious personal interest
was at stake: the ability to survive. Because of the greater potential
consequences of an erroneous decision, an evidentiary hearing is required, preceded seven days by written notice. 150 Welfare termination decisions often turn on disputed questions of fact, thus, due process also requires an opportunity to confront and cross-examine adverse witnesses. 15 1 In contrast, in Mathews v. Eldridge15 2 the Court
required notice and an opportunity to be heard for the revocation of
Social Security disability benefits, but held that an evidentiary hearing is not required. Since the issue is a technical medical one, the
15 3
matter could be adjudicated fairly after written submissions.
Moreover, the right in issue was thought to be less important to the
54
recipient than the basic subsistence provided by welfare benefits..
In Morrissey v. Brewer, 155 the Court addressed the process due
when revoking parole. The parolee there was found to have a modified right to confront his accuser at an evidentiary hearing. 156 The
Court further determined, however, that this right of confrontation
157
can be overridden by threats of violence to an adverse witness.
The Court subsequently refused to recognize a right of confrontation
to the inherent risk of retaliation
in prison disciplinary hearings, due
58
and disruption it would create.1
Although the Supreme Court has often addressed due process
balancing,1 59 the focus of its discussions has been on the flexibility of
the concept. The Court has not provided specific criteria against
which to measure due process requirements in the arbitration/
mediation setting. The problem is compounded because few, if any,
148. Id. at 581, 585.
149. 397 U.S. 254 (1970).
150. Id. at 268-69.
151. Id. at 270-71.
152. 424 U.S. 319 (1976).
153. Id. at 343-47.
154. Id. at 340-43.
155. 408 U.S. 471 (1972).
156. Id. at 490.
157. Id. at 488.
158. Wolff v. McDonnell, 418 U.S. 539, 567-69 (1974).
159. See generally Friendly, "Some Kind of Hearing," 123 U. PA. L. REv. 1267 (1975);
Mashaw, The Supreme Court's Due Process Calculus for Administrative Adjudication in
Mathews v. Eldridge: Three Factors in Search of a Theory of Value, 44 U. CHI. L. REv. 28
(1976).
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29:17
cases have discussed all the elements of due process, or spoken comprehensively about required minimum combinations. Further, those
opinions that have addressed due process questions specifically have
done so in widely differing contexts, ranging from prison 1 60 and
parole 16 1 cases to cases involving disability benefits, 162 welfare, 163
and government employment. 164
The range of sanctions that can be employed by the programs is a
variable that will have a direct bearing on the process that will be
due participants. The severity of the sanctions in large part establishes the magnitude of the injury that can be caused by an erroneous
decision. If, as is true of most dispute resolution programs, 165 there
can be no incarceration or money losses beyond restitution for liquidated damages, the potential for injury should be relatively small,
thus diminishing the need for procedural protections at the dispute
resolution stage. The same is certainly not true at the revocation
stage. Terminating the defendant's right to participate in the program, thereby subjecting him to criminal prosecution, is a substantial
deprivation that should require the full panoply of procedural due
process protections to ensure that the factual issue of noncompliance
is fairly determined.
Each decision must be made by balancing the importance of the
interest involved, the risk of an erroneous deprivation, and the probable value of procedures intended to avoid that risk, against the governmental interests that would be affected adversely by using additional procedural protections. 166 Despite this flexibility, however,
rudiments of procedural due process have long been recognized: an
impartial decisionmaker, notice, and an opportunity to be heard.
a. Impartial decisionmaker
Without an unbiased decisionmaker all other safeguards are hollow.
Although he does not have to be a judicial officer, the decisionmaker
must be able to understand the facts and issues and render a fair and
160. E.g., Meachum v. Fano, 427 U.S. 215 (1976); Wolff v. McDonnell, 418 U.S. 539 (1974).
161. Greenholtz v. Inmates of the Neb. Penal & Correctional Complex, 442 U.S. 1 (1979);
Morrissey v. Brewer, 408 U.S. 471 (1972).
162. Mathews v. Eldridge, 424 U.S. 319 (1976).
163. Goldberg v. Kelly, 397 U.S. 254 (1970).
164. E.g., Perry v. Sindermann, 408 U.S. 593 (1972).
165. See AUTHOR'S SURVEy, supra note 1.
166. Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976). In its most recent due process decision, however, the Court focused on the risk of erroneous factfinding to the virtual exclusion of
the other two factors set out in Mathews. See Greenholtz v. Inmates of the Neb. Penal &
Correctional Complex, 442 U.S. 1, 11-16 (1979).
1979]
MEDIATION AND ARBITRATION
impartial decision based upon them. 167 At the very minimum this
demands that he not have a personal financial interest in the outcome, 168 or personal grievances against the affected individual that
might influence his decision. 169 The requirement of neutrality, however, is not absolute. In a number of contexts, of which welfare termination and parole revocation are examples, the Supreme Court has
held that prior involvement in a case will not bar one from acting as a
decisionmaker as long as the individual did not make the determination under review. 1 70 Consequently, welfare workers involved in determining eligibility and parole officers with responsibility for supervising parolees, may review the decisions of their fellow workers.
Following these precedents at the dispute resolution stage, it
would appear that an arbitrator, who has the power to impose a settlement, cannot be involved in the dispute under examination. Neutrality is less significant in mediation because the parties are the sole
decisionmakers. The mediator's impartiality is important only in the
practical sense that it bears on the participants' perception of the fairness of the process and, consequently, their ability to reach a mutually satisfactory agreement.
By contrast, at revocation stage, the character of the preceeding
negotiations is irrelevant. Whether the agreement was reached
through mediation or arbitration, the issue of noncompliance must be
resolved by a neutral decisionmaker. If only the fact of noncompliance is at issue, there would appear to be no bar to the original mediator or arbitrator serving as the decisionmaker in revocation
proceedings, as long as he was not a party to the alleged breach.
Since he would not be reviewing his own prior decision, there would
appear to be no inherent conflict that would disqualify him. If, however, the unfairness of an arbitrated award is raised as an excuse for
violating it, a clear conflict would arise. Since an arbitrator may not
review his own award, due process dictates his disqualification. The
problem is more complex in mediated awards. Theoretically, the
mediator's involvement is substantially different than the arbitrator's
167. Morrissey v. Brewer, 408 U.S. 471, 486 (1972). Even in criminal cases the Court has
held that a misdemeanant does not have to be tried before a law-trained judge, as he is entitled
to a trial de novo on appeal. North v. Russell, 427 U.S. 328, 339 (1976).
168. Tumey v. Ohio, 273 U.S. 510, 523 (1927). Cf. Ward v. Village of Monroeville, 409 U.S.
57, 62 (1972) (invalidating fine where town mayor served as judge and fines imposed provided
substantial portion of town's revenues).
169. Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1971); Offutt v. United States, 348 U.S.
11, 14 (1954).
170. Morrissey v. Brewer, 408 U.S. 471, 486 (1972) (parole revocation); Goldberg v. Kelly,
397 U.S. 254, 271 (1970) (welfare).
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since he may only propose solutions that the parties are free to accept
or reject. The only ground upon which a breaching party could claim
the unfairness of a mediated settlement is duress. Because of his involvement in the settlement negotiations, the mediator would be
tainted by the mere allegation. Thus, like the arbitrator, he should be
disqualified.
b. Notice
An underlying function of due process is to give an individual
notice of the action to be taken against him so that he can marshall
facts in his defense. 171 Notice, therefore, must be timely and must
reasonably specify the issues to be explored. 172
The issue of notice first arises prior to the settlement negotiations.
Unlike carefully circumscribed criminal proceedings, mediation and
arbitration may be far-ranging. The extent of the problems to be resolved may not become apparent until matters begin to unfold at the
hearing. As a consequence, unless the program provides a prehearing
conference to establish the scope of the inquiry and to determine the
amount of time the parties need to prepare, or follows a liberal policy
of continuing discussions, a due process claim of insufficient notice
could be raised either in an action to review the award or in a revocation hearing. The strength of such a claim would probably turn on the
complexity of the issues explored and the severity of the sanctions
imposed through the settlement agreement. If the issues are simple
and limited in number and the potential sanctions are relatively inconsequential, rudimentary notice may suffice. 173
At the revocation stage, the potential return of the diverted criminal
defendant to the criminal court for prosecution is a severe consequence.
Because an evidentiary hearing is required to resolve disputed questions of fact, 174 written notice of the alleged acts or omissions that
175
form the basis of the noncompliance charge is necessary.
171. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 80 (1972). "For more than a century the
central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be
notified.' " Id. (quoting Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863)).
172. E.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (notice
must be "reasonably calculated under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections").
173. Cf. Coss v. Lopez, 419 U.S. 565 (1975) (high school disciplinary action; oral notice
immediately preceding hearing is adequate).
174. See notes 180-82 & accompanying text infra.
175. See Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972);
Goldberg v. Kelly, 397 U.S. 254 (1970).
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MEDIATION AND ARBITRATION
How far in advance of the hearing notice must be given is unsettled. The need for immediate action must be balanced against the
scope of the issues to be explored and the type of information needed
for the decisionmaking. In prison disciplinary cases twenty-four-hour
notice is necessary. 176 When school disciplinary actions are taken,
oral notice can immediately precede the inquiry. 177 The Supreme
Court has said that in welfare termination cases seven days is not
"constitutionally insufficient per se," but that "there may be cases
where fairness would require that a longer time be given."' 7 8 In the
mediation/arbitration setting, the need for immediate action at either
the dispute resolution or revocation stages is not such that less than
seven days' notice should be given.
c. Opportunity to be heard
The right to be heard gives rise to the greatest number of problems
in evaluating the due process requirements of mediation/arbitration
programs, because it is central to the fair resolution of contested
claims, and because its nature can vary drastically from one context to
another. The threshold question is whether an evidentiary hearing is
required. This question is moot at the dispute resolution stage, because the very nature of the programs brings the parties together
with as much evidence as is deemed necessary to effect an equitable
settlement. At the revocation stage, however, the question is very
real.
The right to an evidentiary hearing depends on the balance betveen the nature and weight of the substantive right at issue 179 and
the risk of erroneous decision, 18 0 and the government's need for expeditious action. '8 1 The individual interest in the diversion setting is
freedom from the cost and stigma of exposure to the criminal justice
system. Because the resolution of factual allegations is critical to the
revocation decision, because the credibility of witnesses is often critical to accurate factfinding, because the effect of the resulting deci176. Wolff v. McDonnell, 418 U.S. 539, 564 (1974).
177. Goss v. Lopez, 419 U.S. 565, 582 (1975).
178. Goldberg v. Kelly, 397 U.S. 254, 268 (1970).
179. Compare Goldberg v. Kelly, 397 U.S. 254 (1970) (hearing required where interest at
stake was subsistence), with Mathews v. Eldridge, 424 U.S. 319 (1976) (written submissions
sufficient where interest at stake was disability benefits not necessary for subsistence).
180. Compare Goldberg v. Kelly, 397 U.S. 254 (1970) (hearing, with right to confront and
cross-examine adverse witnesses, required where questions of credibility and veracity are prominent), with Mathews v. Eldridge, 424 U.S. 319 (1975) (written submissions sufficient where
only technical medical issues are involved).
181. See note 189 infra.
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sion is absolute and final, and because a compelling governmental
need for expedition is absent,1 8 2 one must conclude that at the revocation stage, evidentiary hearings are constitutionally required.
Once it is determined that there is a right to an evidentiary hearing, a number of additional issues arise. The most significant issue is
whether the parties should be allowed to call witnesses on their be18 3
half and to confront witnesses presented by the adverse party.
The right to call witnesses is "[o]rdinarily . .. basic to a fair hearing." 184 If that right exists, the right to confront and cross-examine
adverse witnesses generally accompanies it. 1 8 5 The Supreme Court
has sanctioned restrictions on these rights only when there is a substantial threat that the operations of governmental institutions would
be disrupted. 1 86 No comparable governmental interest can be iden-
182. Considerations relating to the need for swift prosecution, such as, the risk of letting a
dangerous criminal free pending trial, are likely to have been dealt with at the screening phase.
Those admitted to the programs, for the most part, will have been charged only with minor
crimes.
183. The requirements for parole revocation hearings specified in Morrissey v. Brewer, 408
U.S. 471 (1972), seem to be equally applicable to revocation proceedings in the mediation!
arbitration context:
[Tihe minimum requirements of due process include ... (b) disclosure to the
parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and crossexamine adverse witnesses (unless the hearing officer specifically finds good cause
for not allowing confrontation); . . . and (f) a written statement by the factfinders as
to the evidence relied on and reasons for revoking parole.
Id. at 489; accord, Goldberg.v. Kelly, 397 U.S. 254 (1970).
The diverted defendant's interest in remaining in the program may be less significant than
the parolee's interest in remaining free. At the same time, however, the state's interest in
summary termination is much less as to participants in a mediation/arbitration program than it is
as to parolees. The Court in Morrissey, recognizing that parolees are convicted felons and that
their release may pose a risk of additional antisocial conduct, noted that "the State has an
overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his
parole." 408 U.S. at 483. It is unlikely that a comparable interest in swift prosecution will exist
as to diverted defendants. See note 182 supra.
One state court has held that the procedural requirements outlined in Morrissey apply to
revocation of pretrial diversion. State v. Lebbing, 158 N.J. Super. 209, 385 A.2d 938 (1978).
184. Wolff v. McDonnell, 418 U.S. 539, 566 (1974).
185. See Greene v. McElroy, 360 U.S. 474, 496-97 (1959). But cf. Friendly, "Some Kind of
Hearing," 123 U. PA. L. REv. 1267 (1975): "[IThe question whether cross-examination should
be denied must generally be viewed from an incremental standpoint-assuming that the name
of the witness and the content of his testimony will have been disclosed, how much further
harm, if any, will be caused by allowing cross-examination when contrasted with its value." Id.
at 1286 (footnote omitted).
186. Goss v. Lopez, 419 U.S. 565, 580-84 (1975) (suspension of student from school); Wolff v.
McDonnell, 418 U.S. 539, 566-67 (1974). In Wolff the Court explained:
Prison officials must have the necessary discretion to keep the hearing within
reasonable limits and to refuse to call witnesses that may create a risk of reprisal or
1979]
MEDIATION AND ARBITRATION
tified at the mediation/arbitration hearing to justify a similar result. 187
In addition to the question of whether a hearing is required is the
question of when the hearing must be held. It is clear that in the
mediation/arbitration context, the revocation hearing must precede
88
termination and referral for prosecution if it is to be effective.'
Where due process requires a hearing, the presumption is that it
must be held prior to the termination of constitutionally protected
interests. Exceptions are recognized only when a compelling governmental need for expedition is present. 189 In the mediation/
arbitration context, however, such a need is unlikely to exist.' 9 0
Moreover, if the disposition of the original charges could precede the
revocation hearing, the latter would offer the defendant no protection
undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence.... Any less flexible rule appears untenable as a constitutional matter, at least on the record made in this case.
The operation of a correctional institution is at best an extraordinarily difficult undertaking. Many prison officials, on the spot and with the responsibility for the
safety of inmates and staff, are reluctant to extend the unqualified right to call
witnesses; and in our view, they must have the necessary discretion without being
subject to unduly crippling constitutional impediments. There is this much play in
the joints of the Due Process Clause, and we stop short of imposing a more demanding rule with respect to witnesses and documents.
Confrontation and cross-examination present greater hazards to institutional interests. If confrontation and cross-examination of those furnishing evidence against
the inmate were to be allowed as a matter of course, as in criminal trials, there
would be considerable potential for havoc inside the prison walls. Proceedings
would inevitably be longer and tend to unmanageability.
418 U.S. at 566-67.
187. See note 35 supra.
188. Fuentes v. Shevin, 407 U.S. 67, 81 (1972). "If the right to notice and a hearing is to
serve its full purpose, then, it is clear that it must be granted at a time when the deprivation
can still be prevented." Id. See L. TRIBE, AMERICAN CONSTITUTIONAL LAwV § 10-14 (1978).
189. See, e.g., Coss v. Lopez, 419 U.S. 565, 582-83 (1975) (dictum) (no hearing required
before suspension of student from school if his presence is disruptive); Calero-Toledo v. Pearson
Yacht Leasing Co., 416 U.S. 663 (1974) (no hearing necessary before seizure of item used to
commit a crime); Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 394 (1950) (no hearing
required before seizure of misbranded drugs); Bowles v. Willingham, 321 U.S. 503 (1944) (no
prior hearing required during wartime emergency); North American Cold Storage Co. v. City of
Chicago, 211 U.S. 306 (1908) (no hearing required before destruction of impure food). In Arnett
v. Kennedy, 416 U.S. 134 (1974), three Justices appeared to accept a less weighty justification
for denial of a hearing prior to dismissing a government employee. As Justice Powell stated,
"Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect
discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency
of an office or agency. Moreover, a requirement of a prior evidentiary hearing would impose
additional costs, create delay, and deter warranted discharges." Id. at 168 (Powell, J., joined by
Blackmun, J., concurring in part and concurring in the result in part). Justice White was substantially in accord. See id. at 186-203 (White, J., concurring in part and dissenting in part).
190. See note 182 supra.
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against erroneous revocation. 191 A determination that revocation was
not warranted could have no effect on the finality of a criminal conviction.
The right to counsel is the most complex issue relative to the nature of the hearing process because it has so many potential sources
in the Constitution. A right to counsel has been found in the sixth
amendment, 1 9 2 the due process clauses of the fifth and fourteenth
amendments, 193 the equal protection clause of the fourteenth
amendment, 194 and the fifth amendment's protection against compelled self-incrimination. 195 While technically it is an aspect of the opportunity to be heard, it is discussed separately because of its complexity.
3. The right to counsel
a. The sixth amendment
The sixth amendment provides that "in all criminal prosecutions,
the accused shall . .. have the Assistance of Counsel for his de-
fense."1 96 An important limitation on this right is its application only
to "criminal prosecutions." Moreover, the Supreme Court has con-
strued the amendment to apply only to the "critical stages" of a criminal prosecution. 1 97 It appears that the mediation/arbitration pro-
191. Postdeprivation hearings are sufficient where a subsequent remedy will give adequate
relief for an erroneous deprivation. For example, where the individual interest at stake is purely
economic, restitution or damages will generally be an adequate remedy, so the hearing may be
postponed until after the fact. See, e.g., Arnett v. Kennedy, 416 U.S. 134, 169 (1974) (Powell,
J., concurring in part and concurring in the result in part); North American Cold Storage Co. v.
City of Chicago, 211 U.S. 306 (1908). Where the injury inflicted by the governmental action is
irreparable, however, a prior hearing may be required. See, e.g., Goldberg v. Kelly, 397 U.S.
254 (1970) (subsequent hearing insufficient in welfare termination context; termination of benefits may deny recipient of the very means of survival). But cf. Ingraham v. Wright, 430 U.S.
651 (1977) (no hearing required prior to infliction of corporal punishment on students; availability of damages is adequate after-the-fact remedy).
The adequacy of the predeprivation procedures that are employed to assure accurate decisionmaking is also a factor. See Mathews v. Eldridge, 424 U.S. 319 (1976); Arnett v. Kennedy,
416 U.S. 134, 170 (1974) (Powell, J., concurring in part and concurring in the result in part).
192. Argersinger v. Hamlin-, 407 U.S. 25 (1972); Gideon v. Wainwright, 372 U.S. 335 (1963);
Johnson v. Zerbst, 304 U.S. 458 (1938).
193. E.g., Gagnon v. Scarpelli, 411 U.S. 778 (1973); In re Gault, 387 U.S. 1 (1967).
194. Ross v. Moffitt, 417 U.S. 600 (1974); Douglas v. California, 372 U.S. 353 (1963).
195. Miranda v. Arizona, 384 U.S. 436 (1966).
196. U.S. CONST. amend. VI.
197. See United States v. Ash, 413 U.S. 300, 310-11 (1973) (postindictment photographic
display not a critical stage); Kirby v. Illinois, 406 U.S. 682, 690 (1972) (preindictment lineup not
a critical stage); Coleman v. Alabama, 399 U.S. 1, 9-10 (1970) (preindictment preliminary hearing a critical stage).
1979]
MEDIATION AND ARBITBATION
grams are neither criminal prosecutions in and of themselves, nor a
critical stage of any other criminal prosecution.
The Supreme Court has identified a number of factors that are relevant in determining whether a given proceeding is a criminal prosecution: whether the defendant is opposed by a legally trained prosecutor, 198 whether the rules of evidence are in force, 199 whether
procedural rights hinge on the timely assertion of claims, 20 0 whether
the proceeding is adversarial in nature, 20 1 whether the disposition
carries with it the same opprobrium that results from adjudication in
the conventional criminal context, 20 2 and whether the proceeding occurs within a system that has different needs and goals than the civilian criminal justice system. 203 No single factor appears to be dispositive. For example, in Middendorf v. Henry, 204 the Court held that a
summary court-martial was not a criminal prosecution, in spite of the
fact that incarceration, traditionally thought of as a criminal penalty,
could be imposed. 205
Applying these factors to the mediation/arbitration programs, it appears that they are not criminal proceedings. The organized forces of
the state are not poised against any party, the rules of evidence need
not be followed, lay persons generally preside over the negotiation
sessions, there are no procedural technicalities, the proceedings are
not adversarial, the settlement lacks the stigma of a criminal conviction, and the goal of the proceedings is distinctly different from that
of the formal criminal justice system. In fact, the goals of the
mediation/arbitration programs can be compared to the rehabilitative
goals of the juvenile justice system. Even though juvenile proceedings can result in incarceration, they too have not been held to be
criminal prosecutions, in large part because of their benign purposes. 206
The mediation/arbitration process, then, is not itself a criminal
prosecution. Nevertheless, a sixth amendment right to counsel would
198. Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973) (probation revocation). Although in Gagnon this and the next three factors figured in the Court's due process analysis, not in its sixth
amendment analysis, in Middendorf v. Henry, 425 U.S. 25 (1976), the Court treated them as
relevant to whether a proceeding was a criminal prosecution.
199. Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973).
200. Id.
201. Id. at 788-90.
202. Middendorf v. Henry, 425 U.S. 25, 39-40 (1976) (summary court-martial).
203. Id.
204. Id.
205. Id. at 44.
206. See In re Gault, 387 U.S. 1, 30 (1967). Once one concludes that mediation/arbitration
proceedings are not "criminal prosecutions," questions as to other sixth amendment rights,
especially the right to trial by jury, are resolved. The seventh amendment guarantees a right to
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exist if diversion into or participation in a program is considered to he
a "critical stage" of the prosecution of the charges filed against the
defendant. A proceeding or event is a critical stage if events at that
point can substantially prejudice the defendant's ability to put on a
full defense at trial, and if the presence of counsel will help avoid that
prejudice. 207 Participation in a diversion program, however, poses
no such risk of prejudice. It requires no admission of guilt, and no
rights are waived by participating. Assuming all communications are
privileged, 2 08 nothing the diverted defendant says at the negotiations
can be used against him if the criminal charges are later pursued.
Moreover, since participation itself cannot substantially prejudice the
defendant, it follows that the decision to enter a mediation or arbitration program presents no such threat either. 209 There is thus no
sixth amendment right to counsel either at the screening phase or in
the dispute resolution process itself. 210
b. Due process
Even though there may be no sixth amendment right to counsel in
a given proceeding, the defendant is entitled to due process of law
that may entitle him to legal representation. Thus, for example, while
trial by jury in civil trials, but this provision has never been made applicable to state proceedings through incorporation into the fourteenth amendment. Even where comparable guarantees
exist in state constitutions, however, and even if the programs are seen as adjudicating claims of
the sort to which the jury right is applicable, see generally Atlas Roofing Co. v. Occupational
Safety and Health Review Comm'n, 430 U.S. 442 (1977); Pernell v. Southall Realty, 416 U.S.
363 (1974), the right to a jury trial should not pose a problem for the operation of mediation/
arbitration programs. Since the participants have voluntarily agreed to the informal method of
dispute resolution, they must be taken to have waived their rights to a hearing before a jury,
For a discussion of the concept of waiver and its application to the mediation/arbitration programs, see notes 231-52 & accompanying text infra.
207. See Coleman v. Alabama, 399 U.S. 1 (1970) (preliminary hearing is critical stage),
United States v. Wade, 388 U.S. 218 (1967) (lineup is critical stage); Hamilton v. Alabama, 368
U.S. 52 (1961) (arraignment is critical stage where certain defenses are lost if not then raised).
The Court has also held that to be a critical stage, the proceeding in question must be a
"trial-like confrontation" between the defendant and the government. United States v. Ash, 413
U.S. 300, 311-12 (1973).
208. See notes 255-65 & accompanying text infra.
209. The fact that most, if not all, programs require as a condition of admission ihat defendants sign a form waiving their right to a speedy trial, see AuTHOR's SURVEY, supra note 1,
does not change the analysis. The dispute resolution process is often relatively short, ranging
from two to nine months, and it is unlikely that a valid speedy trial claim could arise in this
time. Moreover, it can be argued that waiver of the right to a speedy trial does not constitute a
critical stage: the speedy trial provision serves societal interests that are independent of the
defendant's, and even to the extent that it is a personal right of the defendant, it is only in part
a protection of his ability to put on a defense. See Barker v. Wingo, 407 U.S. 514 (1972).
210. But see LEGAL ISSuES, supra note 10 at 25-26.
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MEDIATION AND ARBITRATION
a juvenile proceeding is not a criminal prosecution, due process demands that the juvenile be represented by counsel in any case in
which he may be incarcerated 211
Whether such a right to counsel exists in a given proceeding is to
be determined through the familiar due process balancing
analysis. 212 For example, the Court has held that in the context of
probation or parole revocation there is no inflexible due process right
to counsel and that counsel's presence at these hearings is generally
unnecessary. 213 The Court emphasized the simplicity of these proceedings in the absence of adversarial legal representation by the
government. 214 Of equal importance was its concern that the presence of counsel would actually be undesirable because it would significantly alter the nature of the proceedings. 2 15 The Court feared
that the proceedings would change from predictive and discretionary
hearings to costly and time-consuming adversarial proceedings. 2 16
This would create the risk that the hearing officer would be compelled to pay greater attention to his quasi-judicial role than to the rehabilitative needs of the individual probationer or parolee. 21 7 It recognized, however, that in particular cases this cost would have to be
borne because of the inability of the probationer or parolee to present
his version of the facts in dispute. 218 Thus, the Court held that
whether a right to counsel exists is to be determined on a case-bycase basis. 2 19 In contrast, the Court upheld the total exclusion of
counsel in prison disciplinary hearings because the adversarial cast
that counsel would give to the proceedings would reduce their utility
as a means for furthering correctional goals. 220
Accepting the Court's reasoning, it appears that the presence of
counsel at the dispute resolution stage of the mediation/arbitration
program would detract from the atmosphere the program is trying to
create. By serving as advocates and focusing on procedural
technicalities, lawyers are likely to force the parties into more combative and less conciliatory positions. Thus, the presence of counsel
211. In re Cault, 387 U.S. 1, 41 (1967).
212. See notes 143-66 & accompanying text supra.
213. Cagnon v. Scarpelli, 411 U.S. 778, 789-90 (1973). Although Gagnon was a probation
revocation case, the Court equated probation and parole, and in fact spoke of the two as interchangeable. Id. at 782 n.3.
214. Id. at 789.
215. Id. at 787. Accord, Middendorf v. Henry, 425 U.S. 25, 45-46 (1976).
216. Gagnon v. Scarpelli, 411 U.S. 778, 788-89 (1973).
217. Id.
218. Id. at 789.
219. Id. at 789-90.
220. Wolff v. McDonnell, 418 U.S. 539 (1974).
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could hinder the effectiveness of these programs just as much as it
was found to detract from the probation and parole revocation hearings and the prison disciplinary hearings. It is doubtful, therefore,
that the Court would find an absolute right to counsel at the dispute
resolution stage.
Whether counsel is required at the revocation stage presents a difficult problem. Although the issues are relatively limited and welldefined, which suggests less of a need for legal counsel's guidance, an
erroneous finding can lead to involuntary termination. The consequences of revoking probation or parole are at least as severe, however, and no general requirement of counsel has been found in those
proceedings. Rather, the existence of a right to counsel depends on
the presence of special circumstances. The same result might well be
reached at the revocation stage of the mediation/arbitration programs.
Even if neither a sixth amendment nor due process right to appointed counsel exists, there is no indication that a program may forbid participants to retain their own attorneys and have them present
at the proceedings. Goldberg v. Kelly 2 21 is instructive in this regard.
Although the potential benefits of counsel at welfare termination hearings were not found to be great enough to give rise to a right to
appointed counsel, the Court held that retained counsel must be allowed. 222 Such an individual might help develop the issues and the
evidence, and no governmental interest in denying the right was sufficiently strong to overcome this benefit. 223 The government's interest in flexibility in conducting prison disciplinary hearings, on the
other hand, has been held to justify the exclusion of retained counsel. 224
The programs may be able to show that counsel's presence at the
dispute resolution stage of a mediation or arbitration program would
be so detrimental that it would jeopardize the ultimate success of the
program. Forbidding the presence of counsel at this stage thus might
be justified. It is unlikely, however, that a court would find such a
compelling interest at the subsequent revocation hearing. At this
stage the government's interest in avoiding an adversarial tone is
greatly diminished. Although counsel's presence may not be sufficiently important to be required, there is no apparent justification for
prohibiting the presence of retained counsel.
221.
222.
223.
224.
397 U.S. 254 (1970).
Id. at 271.
Id. at 271-72.
Wolff v. McDonnell, 418 U.S. 539 (1974).
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MEDIATION AND ARBITRATION
d. Equal protection
The final source of a possible right to counsel is the equal protection clause of the fourteenth amendment. If retained counsel is allowed, the question arises whether the state is required to equalize
the advantages of the parties by appointing counsel for indigents. The
answer is that it probably is not.
Although the Supreme Court has gone a long way in requiring the
states to equalize economic disadvantages within the criminal justice
system, there are limits-not clearly defined-beyond which the
state need not go. The government cannot reasonably be expected to
duplicate the legal arsenal that may be retained privately by some
parties. The Supreme Court recently emphasized that "the Fourteenth Amendment does not require absolute equality or precisely
equal advantages, nor does it require the State to equalize economic
conditions .... The question is not one of absolutes, but one of
degrees." 225 Despite some early indications that the Court would
not tolerate any economically based distinctions in the administration
of criminal justice, 226 it now appears that equal protection does not
require the appointment of counsel for indigents unless the inequality
is so significant that it amounts to "fundamental unfairness." In Ross
v. Moffitt, 227 the Supreme Court denied an equal protection claim to
a right to appointed counsel on a second level discretionary appeal,
noting that the indigent party must demonstrate that he was denied
an "adequate opportunity to present his claims fairly." 228 This standard is the same as the one upon which due process claims to counsel
are decided. 22 9 Thus, it appears that in Moffitt, due process reasoning was superimposed on what purported to be equal protection
analysis. This leads one to suspect that where the right to counsel is
concerned, the concepts of due process and equal protection overlap
225. Ross v. Moffitt, 417 U.S. 600, 612 (1974) (citations and internal quotation marks omitted).
226. Justice Black's plurality opinion in Griffin v. Illinois declared that "[tihere can be no
equal justice where the kind of trial a man gets depends on the amount of money he has." 351
U.S. 12, 19 (1956). Griffin struck down a state's refusal to furnish indigent defendants with free
trial transcripts for use in seeking appellate review. In Douglas v. California, 372 U.S. 353
(1963), the Court followed this principle in requiring that counsel be appointed to represent
indigent defendants in pursuing a first-level appeal as of right. A large number of cases have
similarly applied and extended Griffin. See Y. KAmiSAR, W. LAFAvE & J. ISRAEL, MODERN
CRIMINAL PROCEDURE
68-71 (4th ed. 1974).
227. 417 U.S. 600 (1974).
228. Id. at 616.
229. See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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to the point that they are one and the same. As a consequence, if the
right to counsel in a given proceeding is not required under basic
notions of fair play or due process, as is the case in the dispute resolution hearing in the mediation/arbitration programs, no relief will be
required under the equal protection clause either. The presence of
counsel for one party may significantly change the original complexion
and nature of the hearing itself, however, and this might be a special
circumstance justifying the appointment of counsel for the unrepresented party.
4. Conclusion
When dealing with important individual interests, if a choice must
be made between fairness on the one hand, and informality, flexibility, and economy on the other, the Constitution will require that the
more time-consuming and costly route be taken. 230 Often, however,
significant interests are furthered by informality and flexibility. When
this is true, the utility of rigid procedural rules is lost. Their continued use may serve only to defeat the very ends that they were
designed to further. As a consequence, their abandonment is not only
constitutional, but essential.
D. Voluntariness
Issues of voluntariness arise throughout the diversion process. A
defendant's decision to participate in a diversion program entails a
potential waiver of his right to a speedy trial, and this waiver must be
voluntary. 231 Settlement agreements may be unenforceable if the
decision to participate in the program was involuntary. Additionally,
programs may seek to obtain from participants waivers of their procedural rights within the programs. For example, they might seek
waiver of the right to notice of the scope of the dispute resolutions
hearings, 2 3 2 or of the right to a prior hearing should termination of
participation in a program be sought for an alleged failure to comply
with the terms of the diversion agreement. 23 3 The requirement of
voluntariness applies equally to such waivers.
230. See Malinski v. New York, 324 U.S. 401, 414 (1945) (Frankfurter, J., concurring) ("The
history of American freedom is in no small measure the history of procedure.").
231. This issue presumably could be raised should the defendant's participation be terminated and his prosecution resumed. If the waiver of the right to a speedy trial was involuntary,
he could not be barred from raising a speedy trial claim in bar of the prosecution. See generally
Barker v. Wingo, 407 U.S. 514 (1972).
232. Cf. notes 171-78 & accompanying text supra.
233. Cf. notes 179-91 & accompanying text supra.
1979]
MEDIATION AND ARBITRATION
The question of voluntariness arises on two levels: programmatic
and individual. The first question is whether pressures inherent in
the criminal justice system render all decisions to participate in diversion programs involuntary. The second question is whether, assuming
no such inherent coercion, particular decisions are involuntary. The
legal standard of voluntariness should be the same at both levels.
Because the voluntariness of individual decisions is controlled by the
facts and circumstances of each case, this article addresses only the
first issue.
The inherent pressure on defendants to avoid the potential penalties and stigma of the criminal justice system by participating in a
diversion program is appreciable. The defendant faces on the one
hand a possible criminal conviction, and on the other, undefined civil
consequences. He must weigh the immediate possibilities of conviction and punishment, with its attendant collateral consequences,
against the distant, potentially substantial but speculative consequences of the arbitration alternative. For practical purposes, this
would be little more than a Hobson's choice for many defendants.
One might conclude that it is unrealistic to expect defendants to appreciate the consequences of the options, much less weigh their relative merits. Is the diversion alternative too deceptively alluring for a
considered judgment to be expected from most criminal defendants?
The relevant Supreme Court cases suggest that it is not. Addressing
the constitutionality of similar pressures on defendants to short-cut
the formal adjudicatory process by pleading guilty in hopes of obtaining judicial leniency, 23 4 avoiding statutory penalties, 235 or avoiding
charges threatened by the prosecution, 2 36 the Court has held that
such pressures are within constitutional tolerance.
The most notable case in point is Brady v. United States. 237 In
Brady the Court considered a guilty plea that was entered under a
statute that encouraged such pleas by providing for the death penalty
only if the defendant pleaded not guilty and was convicted by a
jury. 238 Although the Court had previously declared the statutory
scheme unconstitutional because it overburdened the exercise of the
right to a jury trial, 239 it declined to hold that all guilty pleas entered
under the statute prior to that decision were unconstitutionally
coerced. 240 This decision turned on a parallel drawn between the
234.
235.
236.
237.
238.
239.
240.
Corbitt v. New Jersey, 439 U.S. 212 (1978).
Brady v. United States, 397 U.S. 742 (1970).
Bordenkireher v. Hayes, 434 U.S. 357 (1978).
397 U.S. 742 (1970).
18 U.S.C. § 1201(a) (1970) (amended 1972).
United States v. Jackson, 390 U.S. 570 (1968).
Brady v. United States, 397 U.S. 742, 748 (1970).
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inherent pressures of the statutory scheme and those created by plea
bargaining. Finding that the pressures created in plea bargaining to
plead guilty did not render the pleas unconstitutional, since they
were within the range of pressures that are inherent in a system that
allows any guilty pleas, a parity of reasoning compelled it to hold that
41
Brady's plea was not facially unconstitutional. 2
Brady contended that his guilty plea was coerced because it was
influenced by the fear that the penalty would be higher if a conviction were obtained after the government was put to its proof. 242 The
Court saw no theoretical difference between Brady's dilemma and the
hard decisions that must be faced by all criminal defendants who
know that the trial judges probably will be more lenient than juries
and even more lenient if the right to trial itself is waived. 243 Similar
decisions also confront defendants who are offered the possibility of
pleading guilty to a lesser included offense, or to one of several
244
counts in return for a promise that the others will be dismissed.
The Court refused to hold that the circumstances surrounding any of
these decisions were sufficiently coercive to render all resulting waivers involuntary. 2 45 In the words of the Court, guilty pleas are not
coerced merely because they are "motivated by defendant's desire to
accept the certainty or probability of a lesser penalty rather than face
a wider range of possibilities extending from acquittal to conviction
and a higher penalty authorized by law for the crime charged." 246 In
rejecting this claim, the Court held that any decision to plead guilty
would be unconstitutional only if the plea was not made knowingly
and intelligently. 247 Further, the Court indicated that a statutory
scheme of this nature would be unconstitutionally coercive only if the
will of defendants is overborne to the extent that they could not,
even with the assistance of counsel, "rationally weigh the advantages
24 8
of going to trial against the disadvantages of pleading guilty."
The same considerations that lead defendants to plea bargain motivate them to seek to participate in the mediation/arbitration programs. Although the pressure to participate in the diversion programs
may appear to be greater than that in the typical misdemeanor plea
bargain, in that the defendant is offered the possibility of completely
241.
242.
243.
244.
245.
246.
247.
248.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
at 752-54.
at 750-51.
at 751.
at 751.
at 748-49.
at 750.
1979]
MEDIATION AND ARBITRATION
avoiding a conviction and the expense of litigation without any public
acknowledgement of guilt, it is often diminished by the fact that the
accused is trading one uncertainty for another. It is unlikely that such
pressure would be found to equal the pressure of the threat of death,
which withstood scrutiny in Brady. Moreover, the effect of the defendant's choice in the diversion setting is substantially different than
it was in Brady. Pleading guilty inevitably involves the waiver of
numerous constitutional rights, 2 49 while participation in the diversion
program involves only a potential waiver of the right to a speedy trial.
The latter waiver is only potential because there is no ultimate deprivation of the right if the matter is never returned to the criminal
court, or if it is returned after only a short time lapse.
The standard for voluntariness established by the Court is that each
waiver of constitutional rights be made knowingly and intelligently in
the sense that the defendant is "fully aware of the direct consequences [of his decision], including the actual value of any commit250
ments made to him by the court, prosecutor or his own counsel...
mediation/arbitration
in
a
participant
each
that
requires
This standard
program understand the substance of the program and the potential
consequences of participation in it.2 5 1
Assuring an understanding of the consequences of participation
could be problematic in programs employing the arbitration model,
because the consequences of participation are so uncertain. While in
mediation programs the parties have complete control over the scope
of inquiries at the hearing and the nature of the responsibilities that
result, in arbitration programs the scope of the inquiry and of the
249. These include the right to trial by jury and the privilege against compelled selfincrimination. Id. at 748.
250. Id. at 755. Although the Court has never explicitly held that this standard applies to
waivers in a civil context, it has assumed that it does and has applied it in such a situation. See
D.H. Overmeyer Co. v. Frick Co., 405 U.S. 174 (1972).
251. The American Bar Association's Pretrial Intervention Service Center recommends the
following procedure for securing valid waivers:
[The defendant should receive] an explanation (i) of the duration of the program and
its consequences in terms of the possible unavailability of witnesses if prosecution is
resumed, (ii) that the project may be able to apply for an additional term or terms if
participation is less than satisfactory, (iii) that there may be no guarantee that
charges will be dismissed upon successful completion of the term (in those programs
where applicable), and (iv) that the defendant may be returned to face criminal
prosecution if terminated for cause. It should also be made clear that the participant
will be required to waive the right to a speedy trial and the applicable statute of
limitations. In this regard, it is highly advisable that the participant execute a written waiver of the right and statute of limitations, or that the waiver be part of the
official record so as to protect against a claim of the denial of the right or violation
of the statute in the event of subsequent prosecution.
LEGAL ISSUES, supra note 10, at 25.
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sanctions that can be imposed may be undefined. This is necessary in
order to ensure flexibility and allow experimentation. It is unclear
whether the arbitrator may recognize rights that would not be actionable in civil court, or whether he is bound by such bars as the statute
of limitations. It is similarly unclear whether the range of sanctions
and remedies available to the arbitrator is limited to those available in
a formal civil action. As a consequence, by participating in the diversion program, the defendant may expose himself to more onerous
burdens than those to which he would be exposed in the criminal
justice system or in a civil action independently initiated by the other
party.
If the scope and implications of the arbitration programs remain
ambiguous, the question arises whether a defendant informed of
this ambiguity has a sufficient understanding of the direct consequences of his participation to make his decision constitutionally "intelligent." Stated differently, can a decision which would be involuntary if made by a defendant without knowledge of the direct consequences, be rendered voluntary by informing him that he cannot know
the direct consequences? The answer appears to be that such informed ignorance is acceptable. A similar standard has been held to
be sufficient as to waivers of the right to counsel. The Court has held
that as long as the defendant is generally informed of "the dangers
and disadvantages of self-representation"-namely, that he is exposing himself to a process that may be beyond his understanding and
control-the waiver is constitutional. 252
25
E. Confidentiality
3
The integrity and ultimate success of these programs may be influenced substantially by the degree to which their business is open to
252. Faretta v. California, 422 U.S. 806, 835 (1975).
253. Programs receiving federal funds may have to comply with the confidentiality regulations promulgated by the Law Enforcement Assistance Administration (LEAA). 28 C.F.R. Ch.
1,Part 22 (1979). These regulations provide that "[research and statistical information identifiable to a private person may be used only for research or statistical purposes." Id. at § 22.21.
Moreover, such information is privileged. Id. § 22.28. The regulations apply to programs
funded in whole or in part by the LEAA or under the Omnibus Crime Control and Safe Streets
Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (1968), as amended (codified in scattered sections
of 5, 15, 18, 28, 42, 47 U.S.C.) or The Juvenile Justice and Delinquency Prevention Act of
1974, Pub. L. No. 93-415, 88 Stat. 1109 (1974), as amended (codified in scattered sections of 5,
18, 42 U.S.C.), and whose purpose is to "develop, measure, evaluate, or otherwise advance the
state of knowledge in a particular area." 28 C.F.R. § 22.2(c) (1979). Since this is likely to be one
purpose of many mediation and arbitration programs, they may be subject to the regulations.
The regulations apply only to information "intended to be utilized for research or statistical
purposes," however, id. § 22.2(d), so arguably most information gathered in the dispute resolution process is beyond the scope of the regulations.
19791
MEDIATION AND ARBITRATION
public view. Statements made during the negotiations could prove to
be embarrassing, if not otherwise damaging, to the parties in subsequent civil or criminal litigation. Similarly, other records maintained by the program could be used to the disadvantage of the parties. If the parties are not protected from the use of such statements
and records they may be discouraged from participating.
Since the scope of the hearings is potentially broader than that of
conventional civil or criminal proceedings, the potential for harm to
the participants is considerably greater. A conventional action is limited in scope to legally defined claims and defenses that must be
specifically pleaded and proven under a comprehensive set of evidentiary restrictions. No similar limitations are placed on the scope and
nature of mediation and arbitration hearings. This must be the case if
programs are to successfully resolve conflicts rather than to adjudicate
predefined claims, since the problems to be discussed and resolved
may not be apparent until underlying issues begin to unfold at the
hearing.
Two distinct questions regarding confidentiality arise. The first relates to the subsequent use in litigation of information generated in
the negotiation sessions. The second question relates to the degree to
which records of the programs are open to public inspection. The
resolution of the first issue could have significance for the second. If
information disclosed during the dispute resolution process is
privileged, dissatisfied disputants will make fewer discovery demands.
The impact of affording such a status to the information, however,
would be marginal with regard to discovery demands by the general
public.
1. Evidentiary use of information
Protection for the oral statements made during negotiation sessions
might be found in the well-established evidentiary rule giving a limited privileged status to offers of compromise. 254 Often a litigant will
claim that his opponent's offer to settle a case is an implied admission
that the opponent's case is weak. To allow such offers to be admitted
in evidence would tend to discourage the settlement of disputes
254. See, e.g., FED. R. EVID. 408. A number of jurisdictions have provided by statute or rule
that statements made in the course of pretrial diversion are inadmissible in evidence. MASS.
ANN. LAws cb. 276A, § 5 (Michie/Law. Co-op Supp. 1980); TENN. CODE ANN. § 40-2108(a)
(Supp. 1979); N.J. CT. R. 3:28(b)(4). It should be noted that these statutes and rules refer to
diversion programs generally, not to mediation or arbitration programs specifically.
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[Vol. 29:17
without costly and time-consuming trials. Consequently, these offers
are not admissible on the issue of liability. 255
This rule was initially limited to civil litigation on the theory that
compromises of criminal charges should not be encouraged. 256 Consequently, plea negotiations were admissible as evidence of the defendant's guilt. 257 Courts looked upon any offer by the accused to
compromise the charges as an attempt to "buy off" the state. 258 As
plea bargaining became an accepted practice, however, and eventually became the predominant means by which the criminal justice
system disposed of its docket, 259 it became apparent that the policies
underlying the rule necessitated its application to criminal cases. 260
Similarly, the policy of cooperative dispute settlement seems to dictate that the rule be applied to the conflict resolution hearing in the
mediation/arbitration programs.
The application of the rule to mediation/arbitration hearings, however, may be of little practical consequence in those jurisdictions that
have imposed a major limitation on it. In these jurisdictions nothing
but the offer to settle is inadmissible. All statements of fact made in
negotiations prompted by the settlement offer are admissible unless
they are expressed hypothetically, or expressly stated to be "without
2 61
prejudice."
255. See, e.g., Perzinski v. Chevron Chemical Co., 503 F.2d 654, 658 (7th Cir. 1974); Maulding v. Louisville & N.R. Co., 168 F.2d 880, 882 (7th Cir. 1948); Henry v. Radio Station KSAN,
374 F. Supp. 260, 263 n.1 (N.D. Cal. 1974); Sternberger v. United States, 401 F.2d 1012, 1018
(Ct. CI. 1968); Esser v. Brophey, 212 Minn. 194, 197, 3 N.W.2d 3, 4-5 (1942); C. McCoILNIICK,
HANDBOOK OF THE LAWV OF EVIDENCE §§ 74, 274 (2d ed. 1972).
256. See, e.g., Christian v. United States, 8 F.2d 732, 733 (5th Cir. 1925). The logic of the
rule was that an offer of compromise in a criminal case is the equivalent of an admission of guilt,
not simply an efficient means of dispute resolution. "The law encourages the settlement of civil
suits, but the compounding of crime is against public policy." Id. In some jurisdictions, however, the severity of the charge was considered in deciding whether evidence of the offer should
be admitted. See, e.g., State v. Jackson, 221 Or. 315, 322, 351 P.2d 439, 443 (1960) (offer to
compromise admissible in felony cases, inadmissible in misdemeanor cases).
257. E.g., Town of Scranton v. Henson, 151 Iowa 221, 226, 130 N.W. 1079, 1081 (1911);
Taylor v. Commonwealth, 403 S.W.2d 713, 716 (Ky. 1966).
258. C. McCOI MICK, HANDBOOK OF THE LA-W OF EVIDENCE § 274 (2d ed. 1972).
259. See, e.g., ABA PROJECT ON STANDARDS FOR CRIMINAL JUSTICe, STANDARDS RELATING
TO PLEAS OF GUILTY §§ 1.8, 3.1 (Approved Draft 1968).
260. See, e.g., FED. R. Cuim. P. 11(e)(6).
261. Gurganus v. Kiker, 286 Ala. 442, 447, 241 So. 2d 113, 118 (1970); People ex rel. Walsh
v. Kilbride, 16 Ill.
App. 3d 820, 823, 306 N.E.2d 879, 881 (1974); O'Bryan v. Home-Stake
Prod. Co., 195 Kan. 213, 217-18, 403 P.2d 978, 982-83 (1965); Shaw v. Massachusetts Bonding
& Ins. Co., 373 S.W.2d 533, 555-57 (Tex. Civ. App. 1963); Brickell v. Shawn, 175 Va. 373, 381,
9 S.E.2d 330, 333 (1940); Lovett v. West Virginia Cent. Gas Co., 73 W. Va. 40, 44-45, 79 S.E.
1007, 1008-09 (1913). 2 J. WEINSTEIN & M. BERGER, WEINSTEIN'S EVIDENCE 1 408[03] (1978).
1979]
MEDIATION AND ARBITRATION
This limitation obviously diminishes the rule's effectiveness, even
in traditional civil and criminal cases. The policy is to encourage settlements, but admission of statements made during negotiations tends
to defeat that objective. 262 Clearly, the better rule is to extend the
protection to all statements made in compromise negotiations. This
approach has been incorporated into the Federal Rules of Evidence, 26 3 and has been enacted by statute in many states. 264 If the
broader rule were not followed in the mediation/arbitration context,
participants would receive no protection, since the entire process is
one of negotiation. But even under the broader rule, the protection
afforded is limited. It precludes a statement from being used as an
admission of responsibility for the conduct in question, but allows
other evidentiary use to be made of the statement. 265 Consequently,
the protection is incomplete, at best.
2. Program records
The more troublesome issue relates to disclosure of program records. Some programs may attempt to avoid this problem by not
keeping complete records, or by maintaining their records in such a
form as to render them meaningless to outsiders. The theory behind
this practice is that if the records are inadequate, they will not be
262. 2 J. WEINSTEIN & M. BERGER, WEINSTEIN'S EVIDENCE
408[03] (1978). The justification for admitting admissions, however, is that undisputed claims of liability and amount due
should not be compromised, but rather paid in full. See C. MCCORIMICK, HANDBOOK OF THE
LAW OF EVIDENCE § 274 (2d ed. 1972).
263. FED. R. EVID. 408.
'Id.
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or
offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount,
is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not
admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.
This rule also does not require exclusion when the evidence is offered for another
purpose, such as proving bias or prejudice of a witness, negativing a contention of
undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
264. E.g., NEB. REV. STAT. § 27-408 (1975); NEV. REV. STAT. § 48.105 (1977); N.M. STAT.
ANN. § 20-4-408 (Supp. 1975); WIs. STAT. ANN. § 904.08 (West 1975); ARIZ. R. CT., R. EVID.
408 (1978); MINN. CT. R., R. EVID. 408 (Supp. 1979). These rules adopt Federal Rule 408 or
slightly reworded versions of it.
265. Rule 408 provides for the admission of offers of compromise and the surrounding discussions for such limited purposes as "proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution."
FED, R. EVID. 408. See Wolf v. Mutual Benefit Health & Accident Ass'n, 188 Kan. 694, 714,
366 P.2d 219, 234 (1961); Malatt v. United Transit Co., 99 R.I. 263, 267-68, 207 A.2d 39, 41
(1965).
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29:17
sought. This may be true, but it is more likely that it will merely lead
to greater inconvenience for the program personnel whose testimony
will be required to interpret or supplement the records. The privacy
of the parties would be protected if the personnel cannot remember
the details of past negotiations, but the cost to the programs of losing
this data may be too great for the benefits reaped. Accurate and comprehensive records are essential to the success of the programs, for
without them complete and informed service from intake through
follow-up is jeopardized. Adequate records are also required for administrative efficiency. This is particularly true in large programs,
where personnel and services must be coordinated. 266 Finally, if
civil enforcement of an arbitrated award is to be sought, factual justification for it must appear in the records for the award to withstand
judicial scrutiny. 26 7 Therefore, the issue of confidentiality will be
explored on the premise that the programs keep complete records.
Confidentiality is a difficult issue to address because the public's
right of access to public documents, with which it is potentially in
direct conflict, varies substantially from one jurisdiction to another,
and because the public character of the programs can also vary substantially. The public's right of access to public records has roots in
both statutes and common law. 2 68 The basic right of access has been
defined variously as a right possessed by those whose interest in the
document would enable them to maintain or defend an action for
"which the document or report sought can furnish evidence or necessary information," 2 69 as a right of those who can demonstrate a special interest in the subject matter of the documents, 27 0 and as a gen-
266. For a survey of the staff procedures and record policies of six different urban programs,
see NEIGHBORHOOD JUSTICE CENTERS, supra note 10, at 89-172.
267. Most administrative action must be supported by some sort of administrative record. See
generally 1 F. COOPER, STATE ADMINISTRATIVE LAw 421-31 (1965); K. DAVIS, ADMINISTRIATiVE LAW OF THE SEVENTIES chs. 16, 29 (1976); 2 K. DAVIS, ADMINISTRATIVE LAW TREATISE
ch. 16 (1958); 4 K. DAVIS, ADMINISTRATIVE LAw TREATISE ch. 29 (1958). It is unclear whether
this requirement would apply to mediation/arbitration settlement agreements.
268. See H. CROSS, THE PEOPLE'S RIGHT TO KNOW 48 (1953).
In all states the statutes are the primary source of the law; in about half the states,
statutes are the principal source of the law; in the others, judicial decisions are the
principal source. In all the "statutory states," however, there is common law interpretation, and in all the "common law states" there are at least some statutory
grants and some statutory exceptions or limitations.
Id. See generally Project: Government Information and the Rights of Citizens, 73 MICH. L.
REV. 971, 1163-87 (1975) [hereinafter cited as Government Information].
269. Daluz v. Hawksley, 116 R.I. 49, 351 A.2d 820, 823 (1976).
270. See City of St. Matthews v. Voice of St. Matthews, Inc., 519 S.W.2d 811, 815 (Ky.
1974). Under this view wholesale inspection will not be allowed merely for the purpose of
satisfying idle curiosity. Those seeking access must state a purpose that "tends to advance or
1979]
MEDIATION AND ARBITRATION
eral right limited only by specific statutory enactments or common
law exceptions. 271 The trend appears to be toward policies that favor
and encourage access rather than impede it.2 72 This is particularly
true in those jurisdictions that have enacted Right to Know and
Freedom of Information Acts. 2 73 The principal thrust of these statutes is to dispense with the requirement that one show a sufficient
interest in the subject matter of the document before being allowed
to inspect it. 274
The definition of what constitutes a "public record" similarly varies
from one jurisdiction to the next. 2 75 At one extreme such records
are defined as those made by a public official pursuant to a requirement of law, or those intended to serve as a memorial of something
written or done by the official or agency. 2 76 Under this limitation,
records maintained to aid in the future compilation of a report that is
required by law are not themselves "public records," even though
they are essential to the ultimate production of the "public rec277
ord."
further a wholesome public interest or a legitimate private interest." Id. Accord, Nowack v.
Fuller, 243 Mich. 200, 219 N.W. 749 (1928); Booth Newspapers, Inc. v. Cavanaugh, 15 Mich.
App. 203, 166 N.W.2d 546 (1968).
271. See MacEwan v. Holm, 226 Or. 27, 359 P.2d 413 (1961).
272. See, e.g., City of St. Matthews v. Voice of St. Matthews, Inc., 519 S.W.2d 811, 815
(Ky. 1974); State ex rel. Charleston MaiLAss'n v. Kelly, 149 W. Va. 766, 143 S.E.2d 136, 140
(1965); Government Information, supra note 268, at 1163-87.
273. E.g., Aiuz. REv. STAT. ANN. § 39-121 (1956); COLO. REV. STAT. §§ 24-72-201 to -205
(1973); D.C. Code §§ 1-1522 to -1526 (Supp. 1977); IND. CODE ANN. §§ 5-14-1-2 to -3 (1974);
see Government Information, supra note 268, at 1163 n.1169.
274. See, e.g., Irval Realty, Inc. v. Board of Pub. Util. Comm'rs, 61 N.J. 366, 372-73, 294
A.2d 425, 428 (1972).
275. MacEwan v. Holm, 226 Or. 27, 36-37, 359 P.2d 413, 417 (1961).
It would serve no useful purpose to attempt to frame a general definition of a public
record. Whether a record is to be regarded as a public record in a particular instance will depend upon the purposes of the law which will be served by so classifying it. A record may be a public record for one purpose and not for another. Thus a
writing may be a public record for the purpose of making it admissible in evidence
without authentication, but not for the purpose of constituting constructive notice to
a member of the public. Or it may be a public record sufficient to warrant judicial
notice thereof, yet not be such a record as to require its retention under a statute
permitting the destruction of certain records.
Id.
276. See Linder v. Eckard, 261 Iowa 216, 152 N.W.2d 833 (1967). Under this view records
kept in a public office that are kept by the public officials' own volition and not pursuant to the
requirements of law are not public records. Records kept by a public official or employee are
subject to examination by the public only if the entries contained therein were made pursuant
to a requirement of law. Dunn v. Board of Assessors, 361 Mass. 692, 282 N.E.2d 385 (1972).
277. In Town Crier, Inc. v. Chief of Police, 361 Mass. 682, 282 N.E.2d 379 (1972), the court
held that police department arrest registers and daily logs are not public records because they
are not maintained pursuant to any requirement of law. It made no difference that they may
have been essential to making reports that are "public records." Under this view records that
THE AMERICAN UNIVERSITY LAw REVIEW
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At the other extreme virtually all data, no matter how tentative or
preliminary, gathered by a public agency in carrying out its duties are
held to be "public," and therefore must be available for public inspection absent other statutory or common law limitation. 278 Under
this liberal interpretation the writing need only constitute a "convenient, appropriate, or customary method of discharging the duties of
the office" by the public officials. A writing need not be a document
that is required by law to be kept as a memorial of official action in
2 79
order to come within the definition of a "public record."
The characterization of the records of mediation/arbitration programs as public records will turn not only on the legal responsibility
of the programs to maintain records, their general recordkeeping
practices, and the attitude of the courts in the jurisdiction in question, but also, and more fundamentally, on whether the programs
themselves are public agencies. Whether programs not run by the
prosecutor's office will be regarded as public agencies for this purpose
is uncertain. In making such a determination, courts undoubtedly will
assess such factors as the source of their funding, the nature of their
powers, and the public character of the responsibilities which they
have undertaken, as reflected in their relationship to the courts and
executive law enforcement agencies and in their impact on legal
rights and conventional "public proceedings." If we assume that program records are public records, and that the right of access applies to
those records, then the preservation of confidentiality is seriously
threatened. But even then, not all confidentiality is necessarily lost.
Exceptions have been created to the public's right of access, where
28 0
it appears that the greater public good is served by nondisclosure,
and program records may fall within one of these. This protection is
the product of the balancing of the discoverant's need for disclosure,
and the government's interest in assuring accurate adjudications of
are "merely incidental to the administration of the affairs of the office" are not public records.
Steel v. Johnson, 9 Wash. 2d 347, 356, 115 P.2d 145, 149 (1941) (citing Steiner v. McMillan, 59
Mont. 30, 195 P. 836 (1921)). See also Andrews v. Police Dep't, 50 Misc. 2d 343, 270 N.Y.S.2d
240 (Sup. Ct. 1966).
278. See City of St. Matthews v. Voice of St. Matthews, 519 S.W.2d 811, 816 (Ky. 1974).
"[I]t would appear to be beyond cavil that all records maintained by a state, county or municipal government as evidence of the manner in which the business of that unit of government has
been conducted are public records." Id. See also MacEwan v. Holm, 226 Or. 27, 359 P,2d 413
(1961).
279. MacEwan v. Holm, 226 Or. 27, 41, 359 P.2d 413, 419 (1961) (citing International Union, United Auto., Aircraft and Agricultural Implement Workers v. Gooding, 251 Wis. 362, 371,
29 N.W.2d 730, 735 (1947)); People v. Shaw, 17 Cal. 2d 778, 112 P.2d 241, 259 (1941); Disabled Police Veterans Club v. Long, 279 S.W.2d 220, 223 (Mo. App. 1955); Conover v. Board
of Education of Nebo School Dist., 1 Utah 2d 375, 267 P.2d 768 (1954).
280. See Government Information, supra note 268, at 1171-79.
1979]
MEDIATION AND ARBITRATION
disputes and exposing governmental malfeasance against the government's need to maintain its sources of confidential information. 281
This balance will frequently turn on the interest of the person seeking discovery. A litigant's need for the records is perceived to be
2 82
substantial because of their potential importance to the litigation.
As a consequence, most statutory limitations on the right of access to
public documents apply only to the general public 28 3 and not to litigants. This is true, for example, of the exceptions to the Federal
Freedom of Information Act. 284 They represent a congressional expression of what is generally considered sensitive, and to that extent
may influence judicial decisions on discovery requests, but they are
not controlling. 285 Disclosure requirements under the Federal Rules
of Civil Procedure will simply override the exemptions to the Free2 86
dom of Information Act.
In the absence of an absolute statutory prohibition of the disclosure
of the contents of program records, the records will thus be subject to
subpoena by disgruntled participants who have decided to litigate
their disputes. This does not necessarily mean that disclosure will be
compelled. If the director of a diversion program demonstrates that
disclosure will result in harm to the public interest outweighing any
public benefit that would result from granting the inspection demand,
his refusal to allow inspection may be upheld. 287
281. See State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137 N.W.2d 470 (1965).
282. Cf. United States v. Nixon, 418 U.S. 683 (1974) (executive privilege must yield to the
interest of the adversary system in the full disclosure of facts).
283. See generally Kerr v. United States Dist. Court, 511 F.2d 192 (9th Cir. 1975), aff'd, 426
U.S. 394 (1976); Verrazzano Trading Corp. v. United States, 349 F. Supp. 1401 (Cust. Ct.
1972).
284. 5 U.S.C. § 552(b) (1976) (excluding from disclosure, inter alia, trade secrets, certain
intra-agency memoranda, personnel and medical files, and investigatory records compiled for
law enforcement purposes).
285. C. McCouicK, HANDBOOK OF THE LAW OF EVIDENCE, § 108, at 233 (2d ed. 1972).
For evidentiary purposes government information that is exempt under the Freedom of Information Act is not privileged without an additional showing that disclosure would be contrary to
the public interest. See id.
286. See Firestone Tire & Rubber Co. v. Coleman, 432 F. Supp. 1359, 1371 (N.D. Ohio
1976).
287. Cf. State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137 N.W.2d 470 (1965).
The duty of first determining that the harmful effect upon the public interest of
permitting inspection outweighs the benefit to be gained by granting inspection
rests upon the public officer having custody of the record or document sought to be
inspected. If he determines that permitting inspection would result in harm to the
public interest which outweighs any benefit that would result from granting inspection, it is incumbent upon him to refuse the demand for inspection and state specifically the reasons for this refusal. If the person seeking inspection thereafter institutes court action to compel inspection and the officer depends upon the grounds
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 29:17
The harm deemed sufficient to overcome the right of access stems
from the fact that agencies will be unable to obtain important information if they cannot guarantee that it will not be disclosed. Courts
have denied public access to and inspection of such "public records"
as applications for professional licenses, 2 88 prisoners' correspondence
with parole boards, 2 89 employment recommendations solicited from
third parties, 2 9 0 and proprietary information such as compensation
data obtained from private employers to help fix the compensation of
municipal employees. 291 As a general rule, when the ability of public agencies impartially and intelligently to discharge their function
turns on their ability to gather outside information, and compelled
disclosure would seriously jeopardize that ability by destroying the
reasonable expectations of confidentiality upon which such information is obtained, disclosure has not been required. 292 In situations
where litigants seek access to public documents for which there is a
need for secrecy, a difficult choice must be made between independently desirable policies-the production of relevant evidence to ascertain the truth in litigation, and the protection of public agencies'
ability to obtain information in confidence. Even though the needs of
litigants to inspect public documents relevant to a cause of action are
inherently more compelling than those of the public generally, the
balance will be struck against disclosure when the state's need for
secrecy is superior. 293
The need for confidentiality in the negotiation sessions of the
mediation/arbitration programs is clear. Unless they can assure confi-
stated in his refusal, the proper procedure is for the trial judge to examine in camera the record or document sought to be inspected. Upon making such in camera
examination, the trial judge should then make his determination of whether or not
the harm likely to result to the public interest by permitting the inspection outweighs the benefit to be gained by granting inspection.
Id. at 682, 137 N.W.2d at 475.
288. Grayson v. Michigan State Bd. of Accountancy, 27 Mich. App. 26, 34-36, 183 N.W.2d
424, 428 (1970).
289. Runyon v. Board of Prison Terms and Paroles, 26 Cal. App. 2d 183, 79 P.2d 101 (1938).
290. City Council v. Superior Court, 204 Cal. App. 2d 68, 21 Cal. Rptr. 896 (1962).
291. City & County of San Francisco v. Superior Court, 38 Cal. 2d'156, 238 P.2d 581 (1951).
292. Title Guarantee Co. v. NLRB, 534 F.2d 484, 491 (2d Cir.), cert. denied, 429 U.S. 834
(1976). This balancing of interests has also led courts to uphold refusals to disclose materials that
would jeopardize law enforcement efforts, see, e.g., Gilbertson v. State, 205 Wis. 168, 236
N.W. 539 (1931), or subject the government to potential liability, see, e.g., State ex rel.
Youmans v. Owens, 28 Wis. 2d 672, 137 N.W.2d 470 (1965).
293. See Gilbertson v. State, 205 Wis. 168, 236 N.W. 539 (1931), which involved a civil
action under a fire insurance policy. The public documents in question were the notes of an
investigation made by the fire marshal.
1979]
MEDIATION AND ARBITRATION
dentiality, the programs will be unable to create the atmosphere of
294
openness that is necessary for successful dispute resolution.
Whether the courts will see this need as being superior to a litigant's
needs cannot be accurately predicted. Because this is a judgmental
decision that often turns on the particular facts in each case, the results will vary from judge to judge and from case to case.
It is obvious that only incomplete protection is given to the confidentiality of the records of these new programs and of the oral communications the programs generate. Complete protection can be assured only through legislation that absolutely forbids the disclosure
and use of such information outside the settlement process. 295
CONCLUSION
Mediation or arbitration offers an encouraging alternative to the
criminal process. Although not a panacea, it offers the potential for
providing more meaningful and lasting solutions to ongoing disputes
in a more efficient and economical fashion. As a consequence, there
has been a proliferation of community-based mediation programs.
Although many questions about the utility of these programs remain unanswered, the legal ramifications of the programs are relatively clear. Problems of confidentiality exist, but they are surmountable. An equal protection issue is presented at screening, but it poses
minimal problems. Due process issues are prevalent throughout the
programs, but they can be avoided easily by the exercise of minimal
care in structuring the programs around identifiable goals and resources. On balance, the legal problems that might arise by utilizing
mediation and arbitration as an alternative means of resolving disputes are insignificant in light of the potential benefits that these
programs offer.
294. Cf. Cohen v. Cohen, 56 Misc. 2d 813, 813, 290 N.Y.S.2d 524, 525 (Sup. Ct. 1968).
All records and statements made by the parties during a conciliation conference are
strictly confidential and are to be utilized only by the Commissioner and his staff. A
bill to this effect has been passed at the current session of the legislature. Although
the bill has not to date been signed, the salutory intent of this proscription is to
remove any doubts estranged spouses may have that what they relate to the conciliator concerning the sensitive areas of marital discord will be held in strictest
confidence.
295. See note 254 supra.