Joining Forces in Search for Answers: The Use of Therapeutic Jurisprudence in the Realm of Mediation Ethics

Abstract

The Mediation process is part of the Alternative Dispute Resolution movement (ADR) whose modern history begins at the end of the 1970s. Therapeutic Jurisprudence (TJ) is a younger movement which has started to gain recognition in the 1990s. The two schools of thought share similarities, a fact which makes their study beneficial for both. This article explores some of those similarities in order to evaluate the possible contribution of TJ to mediation ethics. What is sought is a normative reading of the mediation process with the aid of the therapeutic lens. Such reading suggests, so it is argued, behavioral guidelines for mediators and for other participants in the process such as the parties' lawyers. In addition, a large volume of writing published in recent years has raised and discussed the concern that mediation is losing its special qualities and strengths due to its acceptance by the legal system as a method for solving legal disputes. Thus another theme of the article is that TJ may help protect the uniqueness of mediation against such institutional pressures.

Keywords: Mediation, Alternative Dispute Resolution, Therapeutic Jurisprudence, ethics, mediation ethics, mediator

JEL Classification: K10, K19, K40