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
Date Written: January 1, 2004
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: Suggested Citation