Mediation v. Case Settlement: The Unsettling Relations Between Courts and Mediation – A Case Study

Mediation v. Case Settlement The Unsettling Relations Between Courts and Mediation - A Case StudyMediation v. Case Settlement: The Unsettling Relations Between Courts and Mediation – A Case Study

Mordehai (Moti) Mironi*

 
ABSTRACT

This article utilizes a case study of Israel’s experiment with mediation in its court system to proposes a re-conceptualization of ADR processes and to provide insights into the intricate relations between courts and mediation. Specifically, the article advances the proposition that all consent-based third party interventions or assisted negotiations should be clustered under two distinctively and paradigmatically different processes – mediation and case settlement. This proposition is grounded in the case study at hand, yet is well-suited for other contexts and offers generalizable insights.

At a more particular level, the article tells the sad story of the «mediation revolution» in Israel. It examines and analyzes how institutional and professional interests of the court administration, the judiciary and the practicing bar caused the idea of mediation as a vehicle for social and cultural change to be abandoned and generated an alternative concept of a case settlement. As such, the case study raises a host of policy questions and carries many insights and lessons for all legal systems thatare bound to encounter similar problems and to face a similar strategic choice.

I. INTRODUCTION
Court systems have always had a complicated relationship with mediation. This article draws on the specific case study of Israel’s experiment with system-wide mediation to provide important insights into this relationship. Israel’s experience also offers a re-conceptualization of ADR processes: specifically, that all consent-based thirdparty interventions or assisted negotiations should be clustered under two distinctively different processes: mediation and case settlement. While this notion is rooted in Israel’s experiment with mediation, it offers insights generalizable to other contexts as well.

At its core, this article explores the sad story of the «mediation revolution» in Israel, a tale of a broken dream and unfulfilled promise. It examines and analyzes the failure of the «mediation revolution,» the abandonment of the concept of mediation as a vehicle for social and cultural change, and how the institutional and professional interests of the Courts Administration, the judiciary, and the practicing bar contributed to mediation being replaced by case settlement as the mainstream dispute resolution process. For policy makers, scholars, judges, mediators, ADR practitioners, and the practicing bar, this case study raises a host of policy questions and carries many insights and lessons, the most pertinent of which the article explores. The article further suggests that other legal systems where mediation is already well established, as well as those that are currently making the first steps in introducing mediation, are bound to encounter similar problems and face similar strategic choices.

Mediation v. Case Settlement: The Unsettling Relations Between Courts and Mediation – A Case Study

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