MEDIATION AND POST-ELECTION LITIGATION
the approximately 25,00071 state and 60072 federal court judges in the United
States lack specific .expertise in election law. Many election law cases
involve matters of first impression that must be resolved quickly in the
context of intense partisan conflict-a pressure-filled circumstance judges
rightly abhor.
For these reasons, resolving post-election disputes in court is not always
optimal. Although litigation has its place, the next section explores ways in
which mediation might, in certain instances, play an important role in
alleviating pressure on courts to resolve post-election disputes.
V.
THE PROMISE OF MEDIATION IN POST-ELECTION DISPUTES
As a general matter, mediators are trained to guide parties through
disputes in ways that make the dispute resolution process more efficient and
the outcome more solid. Mediators are trained to help open channels of
communication, to facilitate the process of direct negotiation, to help parties
understand and frame their dispute, and to act as an agent of reality in
instances where parties may have an inflated sense of the strength of an
argument.7 3 Mediation is effective because mediators can assist parties in
solving problems "more integratively, at less cost, with greater party
participation, and with the possibility of preventing ... some disputes."7 4
Whether these generally accepted benefits of mediation have application in
the post-election context hinges on two central variables: first, the nature of
the post-election dispute at issue; and second the style of mediation
employed.
the William & Mary Law School, to form the Election Law Program to help address this
problem by creating resources for judges on election law. See ELECTION LAw PROGRAM,
http://www.electionlawissues.org.
71 Bureau of Justice Statistics, U.S. Department of Justice, State Court Organization
(2004), available at http://bj s.ojp. usdoj .gov/content/pub/pdf/sco04.pdf.
72 U.S. Courts, Judicial Facts and Figures 2009 (2009), available
at http://www.uscourts.gov/uscourts/Statistics/JudicialFactsAndFigures/2009/Table I 0 l.p
df.
73 JOHNW. COOLEY, THEMEDIATOR'SHANDBOOK30-31 (2d ed. 2006).
74 Carrie Menkel-Meadow, The Lawyer as Problem Solver and Third-Party Neutral:
Creativity and Non-Partisanship in Lawyering, 72 TEMP. L. REv. 785, 802 (1999).
341
HeinOnline -- 27 Ohio St. J. on Disp. Resol. 341 2012
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