THE BAR ASSOCIATION OF 
MONTGOMERY COUNTY, MD 
VOLUME 64 – ISSUE 3 
ALTERNATIVE DISPUTE RESOLUTION | PAGE 29 

BINDING 
MEDIATION? 

Kenneth A. Vogel, Esquire 

Binding Mediation? ADR 
comes in many flavors. The 
chocolate and vanilla of ADR 
are Mediation and Arbitration. 
In Mediation, the parties sit 
down with a trained mediator. 
The mediator engages the litigants 
in a conversation which, 
the parties hope, will result 
in a negotiated resolution of 
their dispute. In Arbitration, 
the arbitrator acts as a private 
judge. S/he hears evidence and 
decides for the parties how the 
dispute will end. 

The Montgomery County Bar 
ADR section recently conducted 
a CLE on types of ADR in 
Maryland. I presented a program 
entitled Alternative ADR. 
There are new flavors of ADR. 
One flavor I discussed was 
Binding Mediation. 

Binding Mediation means that 
the parties begin their session 
in a traditional mediation format. 
They meet. They discuss. 
They caucus. They negotiate. 
During the caucus sessions, 
the parties and the mediator 
discuss the merits and weaknesses 
of each parties’ respective 
cases and their negotiation 
position. By definition, caucus 
discussions are ex parte. A party 
in a mediation may reveal 
things to the mediator that 
they do not want the other side 
to know. They tell the mediator 
things that they would not 
tell a judge. Even though the 
mediator acts as a neutral, the 
parties try to convince the mediator 
that their side has merits 
and that the other side’s legal 
or factual positions are weak. 

Assume that the parties are 
unable to se"le their dispute. 
The mediation ends. The parties 
continue down the litigation 
track to trial or arbitration. 
However, the mediation 
does not have to end. Might 
the parties, perhaps suffering 
from litigation fatigue, develop 
trust and confidence in the 
mediator? They can decide to 
let the mediator resolve their 
case. Presumably the mediator 

has developed a rapport with 
the litigants. The mediator has 
become familiar with some of 
the facts of the dispute and 
perhaps even with the governing 
law. When the parties make 
the decision to switch to binding 
mediation, the mediator 
becomes the decision maker. 
S/he resolves the dispute. It’s a 
one way street. Once a mediator 
becomes a decision maker, 
s/he should never go back to a 
peacemaker role. 

A benefit of private ADR is that 
the parties can dream up their 
own flavors. They can make up 
their own rules. Whatever they 
want to do to resolve their dispute 
is fair game as long as they 
all agree. 

The California Fourth District 
Court of Appeal considered an 
appeal of a $5 million decision 
entered in a binding mediation. 
In Bowers v. Raymond J. Lucia, 
12 C.D.O.S. 5876 (2012), the parties 
set up their own process. 
They referred to it using phrases 
such as “mediation/binding 
baseball arbitration”; “mediation 
with a binding arbitration 
component” and “binding baseball 
arbitration.” The mediator 
himself described it as a “Med/ 
Arb, baseball high-low atmosphere.” 
While the names used 
by the parties varied, the parties 
were clear as to the process. 
They agreed to first spend a full 
day in mediation a"empting to 
resolve their dispute. If they 
could not reach an agreement, 
they would submit their bottom 
line figures to the mediator. 
Each side would put forth 
a single number -a demand 
or an offer. Liability was not 
in dispute. The parties each 
picked a number ranging from 
a low of $100,000 to a high of $5 
million. This is called bracketing. 
The mediator would then 
make the decision. The mediator 
had to pick one of the two 
figures which he felt closest 
reflected the plaintiff’s damages. 
The binding mediation 
decision would then become a 
legally enforceable judgement 
in San Diego County California 
Superior Court. In theory, 
the parties’ numbers would be 
tempered by reasonableness. 

If, hypothetically, one side put 
forth a $200,000 offer and the 
other side put forth a $2 million 
demand, and if the arbitrator 
felt that it was a $1 million case, 
the $200,000 offer would prevail 
because $200,000 is closer 
to $1 million than is the $2 million 
figure. On the other hand, 
had the demand been $1.2 million, 
the party tendering that 
figure would have received $1.2 
million as it is closer to the arbitrator’s 
$1 million valuation. 
In baseball arbitration, the arbitrator 
calls balls and strikes. 
There is no such thing as a 
compromise award. One side 
or the other gets exactly the 
amount that they proposed. 

In Bowers, both parties took 
extreme positions in the binding 
mediation. One offered 
$100,000. The other $5 million. 
The mediator-turned-decision 
maker selected the $5 million 
figure and issued his binding 
decision in that amount. The 
party against whom the $5 
million award was entered appealed 
to the courts. There 
were multiple a"acks on the 
process in the appeal, but the 
process was upheld. The mediator’s 
decision became a final 
court judgment. 

In another binding mediation 
case, cited in Bowers, CA 
Fourth District Justice David 
Sills opined about Lindsay v. 
Lewandowski, 139 Cal.App.4th 
1618 (2006) that he could “think 
of nothing more self-contradictory 
than ‘binding mediation.’” 
A concern is that the parties 
will not exhibit openness and 
candor if the mediator will at 
the end of a failed mediation 
determine the winner and the 
loser. 

The parties in Bowers, so said 
the losing side, did not fully 
map out how they wanted the 

process to unfold. There was 
no evidentiary hearing. The 
mediator was instructed in the 
ADR agreement to decide the 
case at the conclusion of the 
mediation. Therefore, the mediator 
only had the information 
about the underlying dispute 
that the parties told him 
about during their caucuses. 
He did not hear any evidence. 
He saw no documents. He 
heard no witnesses. None of 
the formalities of a traditional 
arbitration hearing were afforded 
the parties. The mediator’s 
knowledge of the case was 
limited to what the parties told 
him or withheld from him. 

The Bowers trial court served 
up a victory to the winner of 
the baseball arbitration. The 
appellate court affirmed. The 
courts found that the parties 
were fully cognizant of what 
they were agreeing upon. 
There was mutual consent. 
The parties were clear and 
unambiguous in their wri"en 
agreement creating the recipe 
for their ADR process. The 
parties had only themselves to 
blame if they did not provide 
for an arbitration hearing with 
evidence and testimony at the 
conclusion of the mediation. 
The decision was binding and 
enforceable. 

When litigants select their own 
flavor of ADR, they need to 
know the ingredients. Otherwise, 
the taste of the outcome 
might not be to their liking. 

Kenneth A. Vogel is co-chair of 
the Montgomery County Bar 
ADR Section. He is a principal 
in Bar-Adon & Vogel, PLLC. He 
is also the Maryland/DC State 
Director for Construction Dispute 
Resolution Services, an 
international company exclusively 
providing ADR services 
to the construction industry. 
T H E  B A R A S S O C I A T I O N  O F  M O N T G O M E R Y  C O U N T Y,  M D  N E W S  L E T T E R  
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