On March 29, the U.S. Supreme Court issued an order to the parties in Zubik v. Burwell, asking for supplemental briefing. The Court wished to have the parties address how the conflict between them might be resolved in a way that supplies birth control coverage to employees (as required by the Affordable Care Act) but does not compel religious employers to participate in what they regard as sinful behavior (by effectively authorizing their insurer to provide coverage for contraception). In its order, the Court offers a possible approach for the parties to consider. On April 12, the parties responded, with the government expressing concerns about the Court’s proposed solution and the non-profits expressing enthusiasm for it, though both sides still wanted to the Court to resolve the underlying question. As Michael C. Dorf wrote in his column two weeks ago, this move by the Supreme Court asking the parties for potential solutions resembles taking on the role that a district court might play in the course of encouraging settlement. In this column, I will consider how a mediator (or the Supreme Court, in the role of mediator) might approach the parties to this case.
The Issue in the Case
Before embarking on a hypothetical mediation between religious employers and the government, let us first review the issue that divides the parties. Under the Patient Protection and Affordable Care Act (the ACA), employers generally must provide health coverage to their employees, and that health coverage must include contraception. Several religious employers, however, have challenged the mandated contraceptive coverage requirement as violating their rights under the federal Religious Freedom Restoration Act (RFRA), by requiring them to participate in what they regard as sinful behavior (i.e., the use of particular types of contraception).
Before the current case came to the Supreme Court, and pursuant to an earlier order, the government offered what it thought would be a fair accommodation for the religious objections of the employer-petitioners to the requirement that they provide contraceptive coverage. It allowed an employer to opt out of providing contraceptive coverage and to notify the government of that decision, after which the same insurer would independently provide coverage for contraception to a petitioner’s employees. The petitioners, however, were not satisfied with this alternative arrangement, because they said that an employer’s notification would have the effect of authorizing the provision of contraception via its own insurance provider, thereby still rendering the employer complicit in the sinful behavior. At oral argument, the attorney for petitioners likened the arrangement to one in which a conscientious objector to a war must respond to a draft notice by directly authorizing the government to draft a particular other individual in the objector’s stead, perhaps by providing the government with the name of a substitute draftee. There would still, in other words, be complicity in the wrongdoing to which the conscientious objector is objecting: using or providing sinful methods of contraception.
One Proposed Solution by the Supreme Court
In taking on the role that it did by asking for supplemental briefing, the Court offered an idea for a possible resolution. In its proposal, employers would not have to notify anyone of their objection to contraceptive coverage but would instead simply enter a contract with a health insurer that covers the employees but that specifies no coverage for objectionable types of contraception. The insurer would then notify employees about the absence of contraceptive coverage. Other arrangements could then be made for employees to receive similar coverage from the insurer through a separate policy. Might this solve the problem?, asked the Court.
The Mediator’s Approach
Though forms of mediation differ, the type that I have studied and practiced, transformative mediation, is the type that I shall apply in this case. Transformative mediation relies on the parties themselves to determine the best way to resolve their conflicts, while the mediators support and facilitate the parties’ efforts by—among other techniques—reflecting the words and emotions of the disputants and taking note of recognition shifts and empowerments shifts. Transformative mediation is premised on the idea that parties in dispute tend to be very self-absorbed and to feel powerless; recognition shifts occur when a party begins to truly see the other party to the conflict and to take in his or her perspective, and empowerment shifts occur when one or both parties begin to feel a sense of control and agency in the situation.
Unlike a district court (and unlike the Supreme Court in this case), a mediator ordinarily would not propose a potential resolution to the parties’ conflict. She would instead highlight the features of that conflict for the parties to consider. In Zubik, she might say, after the petitioners have spoken of their concern about complicity:
“You regard some forms of contraception to be sinful. You accordingly do not want to play any role in making such contraception available to anyone, including the people who work for you. Though various proposed resolutions have been offered, you feel frustrated and unsatisfied by these proposals, because each of them requires you to take an action the result of which is to trigger the availability of the very contraception to which you object. Furthermore, because you would be selecting the particular insurance provider that you would be using to comply with other provisions of the ACA, you would consider the use of that same provider to cover objectionable contraception for your employees to be tantamount to having doctors come into your workplace and use one of the unoccupied rooms to perform abortions. It just isn’t acceptable.”
Laying out what the mediator understands to be the perceptions and experiences of the petitioners in that way allows the petitioners to do one of a number of things. First, petitioners can affirm that the description given is exactly correct and that they will not be satisfied with any resolution in which their act of notification (whether to employees, the insurer, or the government) triggers contraceptive coverage or in which their chosen insurance provider is used to cover these forms of contraception.
Second, petitioners can clarify that while some aspects of what the mediator has said are accurate, others are not. For example, petitioners might say that they actually have no problem with their chosen provider being the one that covers contraception, so long as they are in no way involved in actually selecting the provider for that coverage or in setting the coverage in motion and so long as there is, in the words of the petitioners in their supplemental brief, “a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication.”
The mediator would then listen to what the government has to say and similarly reflect back the government’s perceptions and “feelings.” In responding to the government, the mediator might say this:
“You are growing increasingly impatient with the position that petitioners are taking. From your point of view, you have made every reasonable effort to accommodate the religious interests of the petitioners while simultaneously providing a seamless and straightforward method of providing contraception to petitioners’ employees, as required by the ACA. You first said (under guidance of a court order) that petitioners could simply sign an opt-out form, but they objected to that, so you said that they could just notify the government of their decision, but they objected to that as well, so you have been trying to find a different way for employees to receive coverage for contraception from the same source as their other coverage without the need for a separate enrollment process (and a separate provider, to the extent that an employer is self-insured). That way, employees can keep the same doctor under their policy and do not need to fill out a lot of additional paperwork that will effectively keep many employees from having the coverage that the government wants them to have. The petitioners appear to you to be insisting on a process that complicates coverage for employees and thereby deters employees from obtaining contraceptive coverage at all.”
The government would then have the opportunity either to agree with this characterization of its understandings and feelings or take issue with some or all of it. The government might correct the mediator, for example, by saying that while the petitioners’ position is trying the government’s patience, the government would not attribute bad motives to the petitioners, such as trying to complicate coverage for employees. It is just that this is the effect of the petitioners’ position, intended or not.
Hearing that the government does not doubt its motives in this way, petitioners might then propose a yet-undiscovered resolution to the conflict that satisfies their religious requirements while simultaneously allowing for simple and seamless contraceptive coverage for employees that they will actually feel they can use without diving into a sea of paperwork or visiting multiple doctors.
What Transformative Mediation Can and Cannot Do
Transformative mediation is not, of course, a magic bullet, just as no alternative dispute resolution method is. Ultimately, surfacing the feelings and perceptions of the parties may simply highlight the reality that no solution will resolve the parties’ conflict in a manner that comes close to satisfying the needs and requirements of both sides. This may be what the parties are in effect telling the Court in their supplemental briefings by encouraging the Court to decide the merits of the case. This itself is useful, though, because it is not always clear (or even true) that parties must remain at an impasse and cannot resolve their dispute themselves. Learning that Zubik is in fact a case in which the parties cannot find a mutually satisfactory resolution is useful, because it means that going to a third-party judge (or in this case, the justices of the U.S. Supreme Court) to dictate a resolution is the right thing to do at this time. Assuming that my above hypothetical reflections do accurately characterize where the parties are in their thinking, my prediction is that the Court will in fact have to decide this case on the merits. Unfortunately, given the current composition of the Court, that will likely mean a 4-4 affirmation by an equally divided court, a result that is the functional equivalent of the Court never having heard the case in the first place. If so, the parties may end up being in even greater need of an alternative dispute resolution modality, such as mediation.