One Size Does Not Fit All: A Pluralistic Approach to Mediator Performance Testing and Quality Assurance

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Staying in Orbit, or Breaking Free: The Relationship of Mediation to the Courts Over Four Decades

The acceptance and use of mediation by courts--at the state and federal level-- has grown steadily over the last several decades. Today, mediation is a central element in the overall case-management system of many courts, and this phenomenon continues to grow unabated.At the same time, however, another quite different phenomenon has emerged--the expression of serious criticism from mediation scholars and experts about the way mediation is used by the courts. Indeed, it appears that judges and lawyers in the court system, on the one hand, and mediation experts on the other, understand court-related mediation--and mediation itself--in very different terms. Ironically, mediation\u27s widest acceptance by the courts has become the occasion for intense concern and even fearfulness from the mediation “community” itself. This article suggests that the current ambivalence about the relationship of mediation to the courts is only the latest phase of a four-decade-long tension in this “partnership” of two very different dispute resolution processes. From the earliest beginnings of the “modern mediation field” in the late 1960s to the present, the relationship of mediation to the courts has fluctuated between two orientations. In the first, mediation has been seen and has served as a faithful “servant” of the court system, performing functions vital to the courts and to effective judicial administration. In the second, mediation has been encouraged and has sought to “break free” and establish itself as a separate and distinct conflict resolution process, performing very different functions that are vital to society but unrelated to judicial administration per se. The cycling between these two orientations is driven by the very different potentials mediation offers as a social process, as viewed through different professional eyes. These different views explain why some today are gratified by what they see as mediation\u27s success in finding a firm place in the court system, while others are discouraged by what they see as the court system “capturing” mediation and depriving it of its real social value

Substituting Mediation for Arbitration: The Growing Market for Evaluative Mediation, and What It Means for the ADR Field

The past decade has seen significant expansion in the acceptance and use of mediation as a process for handling disputes. Indeed, old hands in the ADR field observe that mediation has begun to replace arbitration as the process of choice in the ADR (Alternative Dispute Resolution) market, including institutional users like courts and major private consumers of ADR like businesses. All this is seen by some as part of the mainstreaming of mediation discussed by Joseph Folger\u27s lead article in this Symposium. The primary question examined in this essay is: How do we best understand and interpret this development in the ADR field? That is, what is the most convincing account of what this mediation expansion phenomenon represents? This essay will construct an account of the current expansion in mediation suggesting the phenomenon has little to do with mediation at all and more to do with another, more traditionally accepted process, namely, arbitration

Defining Quality in Dispute Resolution: Taxonomies and Anti-Taxonomies of Quality Arguments

[T]his paper explores three or four separate but related dimensions of arguments about quality in dispute resolution. In each dimension, this article explores what might be called the taxonomies and anti-taxonomies that emerged in the workshop discussions, by which I mean the conceptual frameworks that were presented implicitly or explicitly as valid, and alternative frameworks that were offered to challenge their validity. Part II explains how the proceedings revealed and challenged the litigation/alternative dispute resolution ( ADR ) dichotomy regarding processes to be studied. Part III describes the argument for context-specific analysis of quality in dispute resolution, the challenge to which is discussed in Part VI. Part IV reaches the original target, definitions of quality in dispute resolution, and presents a categorization or taxonomy of definitions implied by the proceedings. In the process, Part IV describes one view of the different interests engaged in defining dispute resolution quality standards and sets against it an alternative view of interests. Part IV also emphasizes the ambiguity of the definitions of quality suggested in the workshop discussions. Parts V and VI speculate on the reasons for this ambiguity, and suggest the beginnings of an anti-taxonomy of quality standards, and directions for future work

Study of Ethical Dilemmas and Policy Implications, A

This paper is based on research sponsored by the National Institute for Dispute Resolution and by Hofstra University School of Law. The research involved interviews with roughly eighty mediators working in one of the three areas mentioned above. The mediators were asked to identify situations they had experienced in mediation that, in their view, raised difficult ethical dilemmas on which they felt the need for guidance by professional standards and program policy. This report summarizes and illustrates the findings of the research as to the major types of dilemmas practicing mediators are confronted with and analyzes these dilemmas and their interrelationships. It then offers some suggestions regarding policies that can help train and guide mediators on how to recognize and respond to these dilemmas in practic

Reply to the Commentators on the Ethical Dilemmas Study, A

The invitation to republish here the report on my study of mediators\u27 ethical dilemmas was a very gratifying one. My hope was that this report would generate further thought and discussion on this important subject, and this symposium will certainly help to realize that aim. For this I am grateful to the editors of the Journal and their advisor, Professor Leonard Riskin. Moreover, the best part of this invitation was that it contemplated the publication of comments on the report from a number of well-known and thoughtful figures in the mediation field. This kind of public dialogue is something all scholars hope for, and I am pleased that it has occurred with this report. Waiting to read what the commentators had to say has involved some sense of anticipation, partly in wondering what they might find problematic in the study, but also - and moreso - in looking forward to what their comments would add to my own understanding of the issues. The wait has been well rewarded. With only a few qualifications, my view is that these comments genuinely advance the discussion of the issues addressed in the repor