The Legal and Cultural Roots of Mediation in the United States

13 Pages Posted: 7 Aug 2012

Date Written: August 6, 2012

Abstract

Mediation developed in response to labor unrest in the early twentieth century and social unrest mid-century. Courts began using it in the 1970s to manage crowded dockets. Court and community-based programs evolved and expanded during the 1980s and 1990s. They offered mediation as an alternative to the courts that allowed party self-determination, creative solutions and a quicker response. Research into the mediation process raised questions about the extent to which the reality of mediation matched the claims its proponents made. It revealed that mediators focused on solving problems and getting agreements often did so at the expense of party self-determination. In response to this critique, new models of mediation developed that focused on interaction instead of transaction. One such model, transformative mediation, brings rhetoric and reality together. It understands conflict as a crisis in human interaction and focuses not on conflict resolution but on conflict transformation. It trains mediators to support party decision-making and inter-party perspective-taking. The mediation field will do best in the future by accepting its diversity and supporting the different models of mediation that have evolved.

Keywords: US mediation history, transformative mediation

JEL Classification: K40

Suggested Citation

Saul, Judith, The Legal and Cultural Roots of Mediation in the United States (August 6, 2012). Opinio Juris in Comparatione, No. 1/2012, Paper No. 8, Available at SSRN: https://ssrn.com/abstract=2125440

Judith Saul (Contact Author)

Hofstra University ( email )

Hempstead, NY 11549
United States

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