Nussbaum on Mediation as Regulation
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Lydia R. Nussbaum (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Mediation as Regulation: Expanding State Governance Over Private Disputes (Utah Law Review, 2016, Forthcoming) on SSRN. Here is the abstract:
Across the United States, state legislatures are enacting statutory mediation mandates that govern how private parties resolve their disputes. Legislatures embed mediation mandates into specific statutory regimes ranging from foreclosure to healthcare to insurance coverage. Rather than delegate decisions about ADR design to other state institutions, like courts or administrative agencies, legislatures increasingly retain that authority and formalize the mediation process with legal requirements that regulate parties’ behavior and influence mediation outcomes. After explaining how legislatures wield mediation as a regulatory tool in this latest phase of mediation’s institutionalization, this Article argues that statutory mediation mandates are a form of decentralized governance. Viewing these mediation mandates as decentralized governance illuminates what can be helpful, and also problematic, about formalizing mediation and underscores why legislatures must exercise care when designing procedural architecture.
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