Images of Justice

This Essay crystallizes core elements of the major dispute resolution processes: litigation, arbitration and mediation. The purpose is both to clarify essential characteristics of and the role of the neutral in each process and to identify the relation of those characteristics and that role to a conception of justice. The piece explores whether certain shifts in process characteristics or the neutral\u27s role (for example, arbitration that is not voluntary or a mediator adopting an evaluative orientation) so fundamentally change the particular process as to compromise its relation to a compelling conception of fairness and justice

ADR: An Eclectic Array of Processes, Rather than One Eclectic Process

The thesis of this essay is that when mediators try to resolve a controversy by providing their analysis fo the legal - or other- merits, they are providing the service that judges, arbitrators and neutral experts provide. In essence, such endeavors use the neutral\u27s judgment, award or opinion to determine or jump-start a resolution. That add-on activity to mediation should be called by its proper name. This essay will not review the many reasons that a single neutral combining the roles of facilitator and evaluator is problematic, since that has been done extensively elsewhere.\u27 Instead, in part one, we highlight the advantages of calling mediation plus evaluation a mixed process. In part two, we discuss whether mediation should be allowed to metamorph into an evaluative process for certain case types. In part three, we respond to the contention that virtually every act of an intervener is evaluative and hence proscribing mediator evaluation is impossible

Trick or Treat: The Ethics of Mediator Manipulation

Much of what good mediators do can be characterized as “helpful interventions” that assist the parties towards legitimate goals such as a better understanding, a platform for developing options, and (where the parties choose) an agreement or settlement. However, all such “helpful interventions” are inevitably manipulative, in the sense that the mediator is, often unilaterally, making “moves” with profound impact on the parties’ bargaining. To evaluate the ethics of any individual move, the authors propose asking two questions: 1) does the move further or help a legitimate party or process goal that advances party self-determination in decision-making; and 2) is the move manipulative in such a way that it disadvantages one side or undermines the integrity of the mediator or the mediation process. The more “secret” or hidden the intervention, the more problematic it becomes

A Tale of Two Cities: Day Labor and Conflict Resolution for Communities in Crisis

Through the lens of Glen Cove and Agoura Hills, two cities facing social crisis revolving around a shaping point, this article addresses the importance of government and key interest groups developing approaches to conflict that will best move society forward while limiting the danger and costs of discord. This tale of two cities describes two remarkably similar situations involving day laborers and argues that one community’s choice of mediation after the commencement of litigation resulted in outcomes that addressed and satisfied a wider range of constituency interests than those realized by the community that chose litigation alone