19 Pages Posted: 24 Nov 2009
Date Written: November 24, 2009
If Alexis de Tocqueville had the opportunity to observe contemporary mediation practice in the United States and England, he might agree that there is a story to tell about difference - a story about how mediation is treated differently from other nonadjudicatory dispute resolution processes in both common-law jurisdictions. I will refer to this difference as “mediation exceptionality. One of the primary features of mediation exceptionality is the disparate manner in which mediation is promoted and delivered. In the United States, mediation is, in theory, a voluntary, consensual process, based on the principle of party self-determination. The Model Standards of Conduct for Mediators echo this understanding by emphasizing the importance of informed consent both as to process and outcome. But mediation is frequently delivered as a quasi-consensual or nonconsensual process. Compulsory participation in a variety of contexts is the norm in many court referral schemes. Mediation is also promoted as a consensual process in England but is delivered under the shadow of the court’s power to penalize parties who resist the invitation to mediate. The infusion of nonconsensual attributes into mediation, particularly in court-related programs, is one of the distinct features of mediation that is not shared generally by other nonadjudicatory dispute resolution processes.
Against Settlement can be considered a presage for mediation exceptionality. Just six years after the Pound Conference jump-started the modern ADR settlement movement, Professor Owen Fiss staked out objections to what he considered the peace for justice trade-offs of ADR. One of his objections centered on the quality of consent in settlement. Fiss claimed that consent from some individual litigants was often coerced, and that in the case of groups, there were no procedures for generating authoritative consent.
This essay views mediation exceptionality through the lens of mediation consent litigation that has occurred over the last ten years in the United States and England. It is a tale of two regimes that explicitly endorse mediation through laws and rules of civil procedure but do so through different structural designs. One is quasi-consensual, the other is compulsory.
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