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

Agreement with intermediary
Agreement with intermediary

Mediation 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 that
are bound to encounter similar problems and to face a similar
strategic choice.

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

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