ADR: An Eclectic Array ofProcesses, Rather ThanOne Eclectic Process

When mediators try to resolve a controversy by providing their analysis of the legal – or other – merits, they are providing the service that judges, arbitrators and neutral experts provide. In essence, such endeavors use the neutral’s judgment, award or opinion to determine or jump-start a resolution. This article urges that this add-on activity to mediation should be called by its proper name. The essay highlights the advantages of calling mediation plus evaluation a mixed process and discusses the advantages of having an eclectic and diverse mix of processes from which parties and counsel can choose to promote party choice and self-determination

Evaluative Meditation Is An Oxymoron

An essential characteristic of mediation is facilitated negotiation wherein the mediator remains neutral throughout the process. Inconsistent with this role is an evaluative mediator who assesses the strengths and weaknesses of legal claims, proposes settlement terms, pushes parties to accept a particular settlement, and predicts court outcomes or the impact of not settling. A mediator’s assessment invariably favors one side over the other and jeopardizes neutrality. This article argues that mediation should stand as a distinct and clear-cut alternative to the evaluative and frequently highly-adversarial adjudicatory processes and that mediators should not evaluate

Inevitability of the Eclectic: Liberating ADR from Ideology, The

In this essay, I continue to argue against such rigid characterization of the mediation enterprise and in favor of what I term an eclectic approach to mediation. The eclectic style is one in which a mediator - while maintaining neutrality and impartiality at all times - attempts to both assist the disputants in finding acceptable solutions on their own and also remains free to provide necessary guidance as to the outcomes that might obtain in the legal regime that will govern their dispute should no agreement result from the mediation. In short, my view of good mediation practice is one where the mediator may employ both facilitative and evaluative techniques in order to assist the parties. Permissible mediation conduct should vary not according to some ironclad formula but should instead reflect the personal style of the mediator as well as the desires of the disputants and the context and nature of the dispute.

Book Review

Book review of "The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition" by Robert A. Baruch Bush and Joseph P. Folger (San Francisco: Jossey-Bass, 1994).Published in cooperation with the American Bar Association Section of Dispute Resolution

ADR: An Eclectic Array ofProcesses, Rather ThanOne Eclectic Process

When mediators try to resolve a controversy by providing their analysis of the legal – or other – merits, they are providing the service that judges, arbitrators and neutral experts provide. In essence, such endeavors use the neutral’s judgment, award or opinion to determine or jump-start a resolution. This article urges that this add-on activity to mediation should be called by its proper name. The essay highlights the advantages of calling mediation plus evaluation a mixed process and discusses the advantages of having an eclectic and diverse mix of processes from which parties and counsel can choose to promote party choice and self-determination

Evaluative Meditation Is An Oxymoron

An essential characteristic of mediation is facilitated negotiation wherein the mediator remains neutral throughout the process. Inconsistent with this role is an evaluative mediator who assesses the strengths and weaknesses of legal claims, proposes settlement terms, pushes parties to accept a particular settlement, and predicts court outcomes or the impact of not settling. A mediator’s assessment invariably favors one side over the other and jeopardizes neutrality. This article argues that mediation should stand as a distinct and clear-cut alternative to the evaluative and frequently highly-adversarial adjudicatory processes and that mediators should not evaluate

ADR and the Professional Responsibility of Lawyers

Should the meaning of ethical lawyering change in the ADR context? This article contains several essays arguing that change is needed, that current ethics rules and codes must be adjusted, and new rules must be drafted that respond to the subtleties and complexities of the issues raised in ADR legal practice. Professor Carrie Menkel-Meadow provides an overview of the major ethical issues facing lawyers in ADR practice and reviews the current ethics rules landscape in ADR. Professor Robert Cochran offers a proposal to amend the current professional responsibility rules to include a mandate for advising clients of ADR options. Professor Kimberlee Kovach argues in favor of a new ethic for non-adversarial representation. Finally, Professor Stephen Huber addresses a number of critical ethical issues implicated by arbitration practice