NCJ Number
101743
Journal
University of Florida Law Review Volume: 37 Issue: 1 Dated: (Winter (1985) Pages: 19-27
Date Published
1985
Length
9 pages
Annotation
After briefly describing the major methods of dispute processing, this article reviews the varying dynamics of mediation.
Abstract
The major methods of dispute processing are adjudicative processes (court litigation, arbitration, and private tribunals), consensual processes (ombudsman, factfinding, negotiation, mediation, and conciliation), and mixed processes. The latter category includes mediation followed by arbitration in the absence of a mediation agreement, minitrials, unstructured settlement negotiations, litigation management and planning, and preventive techniques. Mediation is a voluntary process in which a neutral third party, who lacks authority to impose a solution, helps participants reach a dispute resolution agreement. The dynamics of actual mediations will vary according to the degree to which the aforementioned elements are present. Voluntariness is absent when courts require disputants to participate in mediation, and mediator neutrality is lessened when the mediator has a stake in reaching an agreement. A mediator's style also affects the degree to which the parties are free to negotiate their own agreement. A particular problem in mediation is ensuring that the legal rights of both parties are reflected in the mediation agreement. This usually requires the advice of attorneys. Disputant attorneys, however, should not be permitted to inject an adversarial mode into the mediation process. 43 footnotes.