Self-Determination in International Mediation: Some Preliminary Reflections

Few concepts have generated as much discussion in the post-war international legal system as that of “self-determination.” Scholars debate the proper identity of the selves endowed with this right, its boundaries, and its normative relevance. When the focus turns to mediation, the discussion becomes murky because the concept of self-determination has both procedural and substantive components, and is noticeably different in the private and public sectors. The generic concept of self-determination relates to ideas of democratic governance and the Enlightenment belief that legitimate government depends upon the consent of the governed. As adapted to private mediation theory, the right of self-determination allows parties to participate in decision making and voluntarily decide the outcome of their disputes. This understanding of self-determination is rooted in the philosophical principle of personal autonomy and is expressed through the legal doctrine of informed consent. The simple version of the normative story states that those who are affected by a dispute should voluntarily consent to the outcome of that dispute. In short, party self-determination in mediation gives ownership of the conflict to the disputants

Mediation, Self-Represented Parties, and Access to Justice: Getting There from Here

Mediation is enthusiastically promoted as a vehicle for providing access to justice. This is as true in developing countries as it is in the United States. For individuals, mediation promises autonomy, self-determination and empowerment; for courts, there is the lure of procedural and administrative reforms—reduced dockets and greater efficiencies. Unburdened with formal discovery, evidentiary and procedural rules, pleadings, and motions, mediation is thought to generate access to justice at a faster pace than litigation. Commentators sing its praises while bemoaning its underutilization. I argue that claims about mediation’s ability to provide access to justice should be more modest because mediation falls short on its original promise of being a voluntary process based on party self-determination. In what I label a “withering away of consent,” courts and legislatures have pushed hard to sell mediation as an access to justice opportunity, often without regard for the consensual nature of the process. Too often, this hard sell has negative consequences for individuals with disadvantaged economic status who navigate the legal system on their own. These are the self-represented parties who seek access to justice in the formal judicial system but then find themselves in mediation, a different, informal system than what has been institutionalized in the courts. The extent to which they receive justice from either system is unclear

Musings on Mediation, Kleenex, and (Smudged) White Hats

This Essay speculates on the global future of mediation. It anticipates that mediation’s popularity will continue to grow both in the U.S. and abroad particularly as courts continue to encourage and institutionalize the process. Meanwhile, the Essay acknowledges the existence and continuing development of a relatively small cadre of elite lawyers and retired judges who serve as private mediators in large, complex matters.The Essay also raises concerns, though, regarding the current lack of clarity in the goals and procedural characteristics that define mediation. The Essay asserts that such lack of clarity invites abuse of the mediation privilege and exclusionary rules that apply to mediation communications. The Essay specifically examines Cassel v. Superior Court of Los Angeles County, decided by the California Supreme Court in early 2011, in which the court held that evidence of lawyers’ communications with their client occurring immediately before and during a mediation session was undiscoverable and inadmissible under California’s relevant statutes. As a result, such evidence was unavailable to a client in his action against his lawyers for alleged legal malpractice, breach of fiduciary duty, fraud and breach of contract. While mediation proponents crafted the mediation privilege and related exclusionary rules with the best of intentions -- i.e., to help people take advantage of mediation\u27s potential to enhance communications and develop customized resolutions -- Cassel illustrates the potential for unintended, harmful consequences.The Essay urges that even though mediation proponents should be proud that their process has become as popular as breakthrough products like “Kleenex” (or perhaps more currently, the iPad ), such proponents now need to work to define and protect the goals of mediation. The California Legislature has not responded to Cassel with statutory change. Individual mediators, however, can begin to include in their agreements to mediate that, despite any statutory provisions or rules to the contrary, the parties and mediator agree that they will not assert the mediation privilege or exclusionary rules to prohibit the discovery or admission of mediation communications in disciplinary proceedings or malpractice actions against lawyers -- or mediators. Such a provision would be consistent with the Uniform Mediation Act. Such a provision also would make it more likely that mediators will be able to focus on achieving the goals of party self-determination, improved communication and negotiation, and voluntary and customized resolution

Remembrance of Things Past? The Relationship of Past to Future in Pursuing Justice in Mediation

In this Article I seek to explore, not resolve, some of the issues and tensions in the role of temporality in achieving justice through mediative processes and to suggest some correctives at the practice level, as well as encourage some deeper thinking at the theoretical level. I focus here on issues of expression of temporality ( the past ) in the justice and mediation question, not on issues of how the past should be judged - by the rule of law, culture, or universal human rights principles, or even how it can be managed when understandings of the past conflict or cannot be resolved. I leave those bigger questions for another day or another writer

Article and Book Entries by Search Terms and Index Numbers

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

Remembering the Role of Justice in Resolution: Insights from Procedural and Social Justice Theories

It is surely a luxury, at this point in the field of dispute resolution, to be invited to identify those concepts that I view as absolutely essential to our canon. Borrowing a bit from Chris Guthrie\u27s wine illustration, I think it is fair to suggest that today\u27s presentations reveal a very impressive wine cellar, with many bottles of fine wine from which to choose. I will spotlight one part of this wine cellar, where concepts regarding procedural and social justice theories can be found. I will focus primarily on procedural justice but will also reference those theories of social justice that link these two dimensions of justice, particularly in a democracy

Bringing Transparency and Accountability (with a Dash of Competition) to Court-Connected Dispute Resolution

Among the various dispute resolution processes, mediation is the most widely institutionalized in American courts. As a result, this Article focuses primarily, although not exclusively, on the data collected and disseminated regarding court-connected mediation. The Article begins with a brief description of the institutionalization of mediation and other dispute resolution processes in the federal judicial system and in select U.S. state court systems. This narrative reveals substantial reference to the availability of mediation but a dizzying patchwork in terms of institutionalization and a significant lack of system-wide information in some states. The Article then focuses on the data that these courts collect and make publicly available regarding the extent of the use and effects of court-connected mediation. What do we know about the number of referrals to court-connected mediation? What do we know about the number of cases that actually mediate? What do we know about the effects of mediation, in terms of settlement and parties\u27 perceptions of fairness? Except for data from a few pioneering federal district courts and the state courts of Florida, we do not know much. The Article then suggests what we ought to know about the use and effects of court-connected mediation, at least in terms of collecting data elements and reporting aggregated results. Finally, the Article urges that a constellation of international, domestic, and technological developments provide both legislators and courts with a unique opportunity to institutionalize the collection and publication of key metrics regarding court-connected mediation and court-connected dispute resolution more broadly

Bringing Transparency and Accountability (with a Dash of Competition) to Court-Connected Dispute Resolution

Among the various dispute resolution processes, mediation is the most widely institutionalized in American courts. As a result, this Article focuses primarily, although not exclusively, on the data collected and disseminated regarding court-connected mediation. The Article begins with a brief description of the institutionalization of mediation and other dispute resolution processes in the federal judicial system and in select U.S. state court systems. This narrative reveals substantial reference to the availability of mediation but a dizzying patchwork in terms of institutionalization and a significant lack of system-wide information in some states. The Article then focuses on the data that these courts collect and make publicly available regarding the extent of the use and effects of court-connected mediation. What do we know about the number of referrals to court-connected mediation? What do we know about the number of cases that actually mediate? What do we know about the effects of mediation, in terms of settlement and parties’ perceptions of fairness? Except for data from a few pioneering federal district courts and the state courts of Florida, we do not know much. The Article then suggests what we ought to know about the use and effects of court-connected mediation, at least in terms of collecting data elements and reporting aggregated results. Finally, the Article urges that a constellation of international, domestic, and technological developments provide both legislators and courts with a unique opportunity to institutionalize the collection and publication of key metrics regarding court- connected mediation and court-connected dispute resolution more broadly

But Is It Good: The Need to Measure, Assess, and Report on Court-Connected ADR

We know that very few civil matters reach disposition through trial—but what do we really know about how civil cases do reach disposition? What number of civil cases reach disposition through settlement? What number of civil cases reach settlement through court-connected “alternative” dispute resolution (ADR)? Do we know enough about the results of courtconnected ADR to be able to detect potential patterns of systemic discrimination? This Article examines what we know from federal and state court systems’ public reporting and finds: 1) only a minority of federal district courts and state court systems report regarding dispositions through settlement; 2) there is no consistent logic in how these settlements are categorized and reported; and 3) while a goodly number of court systems reference their use of ADR, only two states report essential “bare bones” data including the numbers of dispositions produced by ADR. The Article urges the need for such data collection and reporting—as well as collection and reporting regarding other data elements—to ensure that court-connected and court-reliant ADR are making a difference, a good difference