Enforcing Rights Generated in Court-Connected Mediation - Tension Between the Aspirations of a Private Facilitative Process and the Reality of Public Adversarial Justice

64 Pages Posted: 11 Apr 2013  

Peter N. Thompson

Hamline University - School of Law

Date Written: January 1, 2004

Abstract

This article advances the thesis that the number of recent cases and the nature of the claims by parties complaining about their experiences in court-connected mediations suggest that it is time to reassess the courts’ role in supervising and regulating the mediation processes that judges have incorporated into the pre-trial process. The dissonance between the mediation community’s aspirational goals for a conciliatory process and the judicial system’s singular focus on settling cases has not assured a fair process. The courts’ reluctance to supervise the mediation process, for fear that it will become less efficient in getting rid of cases, creates a virtually unregulated enclave of adversarial activity within a process loosely defined as conciliatory and facilitative. This dissonance can create, and has created, both confusion and an unfair process. This article covers the following areas: enforcing mediated settlement agreements, judicial approach, legislative response, commentators on flexible contract principles mixed with bright-line rules, imposing rigid bright-line rules to a process premised on self-determination, tension between contract principles and mediation’s goals, and regulation of the process.

Keywords: Court-connected mediation, mediation, conciliatory, alterative dispute resolution

JEL Classification: J52, K00, K4, K41

Suggested Citation

Thompson, Peter N., Enforcing Rights Generated in Court-Connected Mediation - Tension Between the Aspirations of a Private Facilitative Process and the Reality of Public Adversarial Justice (January 1, 2004). Ohio State Journal on Dispute Resolution, Vol. 19, p. 509, 2004. Available at SSRN: https://ssrn.com/abstract=1944332

Peter N. Thompson (Contact Author)

Hamline University - School of Law ( email )

1536 Hewitt Avenue
Saint Paul, MN 55104-1237
United States

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