Mediation and Post-Election Litigation:
A Way Forward
REBECCA GREEN*
I.
INTRODUCTION
Most who have looked at the use of alternative dispute resolution (ADR)
in election disputes have concluded that ADR is not appropriate in the
election context, particularly in post-election disputes. This article challenges
that orthodoxy and suggests that ADR, specifically mediation, can play a
useful role when elections go awry.
As someone who teaches both ADR and Election Law, I like to point out
to my students the natural link between these two disciplines-elections,
after all, are a form of dispute resolution. So it seems almost cannibalistic to
ask the question of how ADR might inform election law. Not only that, but
as discussed in different ways at the Symposium underlying this volume,
election disputes do not fit well with many of the theories that animate ADR
scholarship. Elections are inherently binary. Elections are the zero-sum game
that any admirer of Getting to Yes 1 abhors. In an election, there is no way to
split the pie any differently, no way to "create value."2 Democracy demands
a winner and a loser. There is nothing in elections Beyond Winning. 3
This article explores what the ADR field can contribute to resolving
disputes in elections based on the premise that although elections themselves
are binary, the many disputes that can arise during the election process reveal
a more nuanced picture. Disaggregating election disputes reveals structures
* Professor of Practice, William & Mary Law School. Many thanks to the following
individuals for their valuable insights and input: Minnesota Secretary of State Mark
Ritchie, Minnesota Supreme Court Justice Paul Anderson, Jack Young, Marc Elias, Ben
Ginsberg, Gary Poser, and Lynn Fraser. Thanks also to Carrie Menkel-Meadow and
Howard Bellman for their suggestions and encouragement. And finally, thanks to John
Mulligan, Shanna Reulbach, and Megan Mitchell for their very able research support.
I ROGER FISHER & WILLIAM URY, GETIING TO YES: NEGOTIATING AGREEMENT
WITHOUT GrviNG IN (Bruce ed., 1991).
2 Although some have suggested there are ways to split the pie even in elections. See
Lawrence Susskind, Could Florida Election Dispute Have Been Mediated?, DISP. RESOL.
MAG., Winter 2002, at 8, 10 (including the bold idea that Gore and Bush, through a
mediated agreement, might have (1) agreed to give the other input in Supreme Court
appointments, cabinet posts, and (2) agreed to install bipartisan task forces to develop
proposals on key policy issues).
3 ROBERT H. MNOOKIN ET AL., BEYOND WINNING: NEGOTIATING TO CREATE VALUE
IN DEALS AND DISPUTES (2000).
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