Mediation: The ‘New Arbitration’

Jacqueline M. Nolan-Haley
Fordham University School of Law

Harvard Negotiation Law Review, Forthcoming
Fordham Law Legal Studies Research Paper No. 1713928

Abstract:

Mediation once offered disputing parties a refuge from the courts. Today it offers them a surrogate for arbitration. As lawyers become increasingly involved representing parties in mediation, the boundaries between mediation and arbitration are blurring. Lawyers generally control the mediation process, considering it the functional equivalent of a private judicial settlement conference. Legal mediation has taken on many of the features traditionally associated with arbitration – adversarial posturing by attorneys in the name of zealous advocacy, adjudication by third party neutrals, and the practice of mediator evaluation. While mediation advances toward an arbitration model, arbitration is becoming the “new litigation.” I argue that mediation’s move to the zone of arbitration practice is problematic because it clashes with mediation’s core values of self-determination and participation. This directional shift limits the spectrum of options available to disputing parties, depriving them of mediation’s benefits– the opportunity to experience individualized justice as a relief from the rigidity of the formal justice system. Mediation stands at the crossroads and it is worth reflecting on whether the time has come to pull in the reins.

Mediation as a Tool for Resolving Human Rights Disputes- An Evaluation of the B.C. Human Rights Commission’s Early Mediation Project

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