MEDIATION AND POST-ELECTION LITIGATION that voter intent would less likely be lost using the original ballot). When the opposing campaign agreed with this change, the Secretary of State's Office consented to what seemed a reasonable agreement among the parties. The final document therefore indicated the agreed upon process: As the Table Official sorts the ballots, he or she shall remove all ballots that are marked as duplicate ballots and place those duplicate ballots in a fourth pile. At the conclusion of the sorting process, the Table Official shall open the envelope of original ballots for which duplicates were made for that precinct and sort the original ballots in the same manner as they sorted all other ballots. 149 Although the parties readily agreed to this revision on the call (without objection at the time from other participants, including the Secretary of State's Office), those administering the recount came to rue the decision. As election officials put this process into place, a terrible problem became apparent: the number of ballots marked duplicate and original did not always match up.l 50 This story demonstrates a problem inherent in letting parties agree to process rules in an election mediation.151 Parties in an election mediation may agree on processes that create huge headaches for recount administrators, are unworkable, or worse, come at the expense of the public interest. What if it is problematic to allow parties too much control in election mediation? This very tension-when and whether to let parties agree to process decisions-became one of the most controversial issues in the 2008 Minnesota recount as the next section relates. D. Judicial Deference to the Parties: The December 18 Order On December 18, 2008, the Minnesota Supreme Court issued a surprising and contentious opinion accompanied by two vigorous dissents. 15 2 The order read, inter alia, as follows: Recount Plan, supra note 133. Weiner, supra note 62. 15l Note the interesting overlap between the parties' ability to agree on process issues in mediation and recent holdings about the ability of parties to negotiate for dispute resolution processes in arbitration clauses. In Hall St. Assocs. v. Mattei, Inc., 552 U.S. 576 (2008), the Supreme Court held that parties cannot agree in an arbitration clause to confer jurisdiction on a federal court to apply an expanded scope of review. 15 2 Coleman v. Ritchie, 758 N.W.2d 306 (Minn. 2008) (Norm Coleman, a candidate in a disputed election, petitioned the court seeking to prevent county canvassing boards from counting rejected absentee ballots in the pending administrative recount). 149 150 363 HeinOnline -- 27 Ohio St. J. on Disp. Resol. 363 2012