Title: Thwarting the Structural and Individualized Issues of Mediation: The Formalized Reflective Approach
Abstract: I. INTRODUCTIONMediation's legacy as a prime technique for dispute resolution crosses the boundaries of cultures and societies over time.1 Even today, mediation continues its legacy as a primary form of Alternative Dispute Resolution (ADR) in the United States and abroad. Mediation is a process involving a mediator, a neutral third party who assists disputants with crafting an agreement to resolve their conflict.2 Although the mediator facilitates the agreement, the terms of the agreement are ultimately decided by the parties in conflict. The role of the mediator remains confined to that of a facilitator who has no power to influence the outcome which is arrived at mutually by the disputing parties.3 In mediation, the obligation to align interests and produce results lies with the disputants,4 and frequently involves concessions made by both parties to the dispute. As a technique for resolving conflict, mediation sometimes falls short of attaining its lofty purpose of resolving disputes. This failure is frequently due to a combination of structural and individualized flaws with the mediation process. This article sets forth a normative framework for combatting these flaws and thereby improving the likelihood of a successful mediation process.The literature review of the last decade reveals that mediation is advancing across many fields and specializations of both law and society. Mediation is advancing in, among other areas: international law, environmental law, education, divorce and family law, organizational disputes, consumer disputes, sexual harassment claims/employment law, mental health related disputes, debt collection matters, insurance disputes, general liability claims, contract disputes, malpractice disputes, victimoffender crises, tax claims, and inter-gang disputes.' Mediation spans the spectrum of societal ills; it is utilized to resolve disputes across a broad range of legal and societal issues.Authors identify many goals that a mediator should pursue when attempting to facilitate a dispute. These goals include reaching agreement,6 improving the parties' relationship,7 advancing social justice,8 attaining social transformation,9 reducing sex discrimination,10 reducing built up anger, preventing prospective conflicts,12 using speed and efficiency,13 resolving social problems,14 forestalling prospective problems, reducing prospective costs,16 reductions in violence,17 improving party communication,18 reductions in stress,19 integration of relationships,20 and overseeing compensation.21 During each mediation session, rarely does a mediator embrace all of these goals, but a mediator often chooses to utilize one or many of these goals as a strategy for facilitating agreement. Often, only the primary goal of the agreement is reached,22 leaving the parties with nothing more than an agreement without ameliorating the underlying conflict that gave rise to the dispute in the first place.Resolving a dispute is undoubtedly the key end to a successful mediation process, but its other goals should not be overlooked. Unfortunately, authors associate more goals with mediation than mediation can handle. They symbolize mediation as a Swiss-army knife that can resolve all kinds of conflict, and they forget that there are limits to mediation's potential for achievement of this multiplicity of goals.2' Thus, the possibility of realization of these many laudable goals through mediation only flickers without much fire. The claims of modern mediation have resulted in a continuing dialogue between the critics and proponents of mediation. This essay aims to outline the criticisms of the mediation process, and to propose a method for resolving them. Section I explains the link between mediation and social justice. Section II identifies the structural flaws of mediation. Section III identifies the individualized flaws of mediation. Section IV constructs a framework for addressing the structural and individualized flaws; this framework, the formalized approach, thwarts the flaws in favor of an improved, more reflective mediation process that promotes social justice. …
Publication Year: 2016
Publication Date: 2016-04-01
Language: en
Type: article
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