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The use of mediation in legal disputes has increased dramatically in recent decades. This article describes this new dispute resolution environment as a “liti-mediation” culture, where it becomes taken for granted that mediation is the normal way to end litigation. In this environment, both lawyers’ and mediators’ approaches in mediation are likely to co-evolve.
The article examines the growth of the private market for mediation and an accompanying specialization of mediation practice. These changes seem likely to require mediators to develop market niches with identifiable characteristics of their mediation practices. Simultaneously, lawyers, as regular buyers of mediation services, will be expected to recognize and make decisions based on significant distinctions between mediation providers. The article describes some of these distinctions that may develop in the mediation market, particularly focusing on differences in various mediation goals and styles. It advocates a “pluralist” view that accepts the legitimacy of a broad range of mediation approaches as distinct from a “single-school” philosophy favoring only a relatively narrow and pure definition of mediation.
The article distinguishes mediation philosophies based on the extent to which professionals assign a high priority to promoting the parties’ exercise of their decision-making responsibility. Rather than merely achieving the minimal standards of consent needed to settle a dispute, some mediators try to help parties achieve a higher standard of consent, which I call “high-quality consent.” (In a later article, I refer to this concept as “high-quality decision-making” because some parties decide not to settle in mediation.) This article identifies a set of concrete mediation tactics that may promote – and be indicators of – an approach seeking high-quality mediation. These tactics include: (1) explicit consideration of the parties’ goals and interests, (2) explicit identification of plausible options for satisfying these interests, (3) the parties’ explicit choice of options for consideration, (4) careful consideration of these options, (5) mediators’ restraint in pressuring principals to accept particular options, (6) limitation on use of time pressure, and (7) confirmation of the parties’ consent to selected options. This set of tactics might be used to create a continuum of the quality of consent, but are not as absolute or necessary requirements for mediation. Although some of these tactics may not be the norm in practice, even by mediators who subscribe to this philosophy, they reflect an ideal to which much mediation theory aspires.
The article considers how the routine incorporation of mediation in litigation may affect both processes. It examines how the active participation of lawyers in mediation may alter the constellation of relationships of professionals and clients. Regular participation of lawyers is likely to result in ongoing relationships between mediators and lawyers that may overshadow their respective relationships with the parties and dramatically affect the mediation process. As a result, mediators may feel obliged to cater to the lawyers’ interests, which often entails pressing the parties to settle and undermining the quality of parties’ consent.
The article considers how the dynamics of liti-mediation culture may affect both lawyering and mediation practices. It argues that changes in lawyering and mediation practices are contingent upon the values, attitudes, and decisions of a wide range of actors, including mediators, lawyers, law school faculty, legislators, judges, court administrators, and the general public. It suggests that mediation and lawyering practices are likely to crystallize for an extended time after the current period of institutionalization. Based on this analysis, it offers recommendations for the various stakeholders in mediation.Read original article