Where Mediation is Concerned, Sometimes 'There Ought Not to Be a Law'!

Abstract

From the authors of Mediation: Law, Policy, and Practice, this article is a review of the approach to regulating mediation practice.

Just as U.S. lawmakers are often quick to turn to laws as solutions to problems, mediation also has not escaped this trend. The volume of mediation-related statutes in the United States grew five-fold over the last two decades. The authors argue that laws might not achieve the proponents' goals if the approach taken is not effective in the mediation context.

The authors go on to suggest the following six questions that a prospective mediation regulator should consider:

(1) Will the proposed law achieve its goals in light of mediation confidentiality?

(2) Will mediation participants be aware of the new law?

(3) Does the law conflict with deeply ingrained practices?

(4) Are the lines between adjudication and mediation muddled by the laws?

(5) What are the unintended consequences of the law?

(6) Can the goals for the law be achieved without the law?

Keywords: mediation, adjudication, regulation, mediator, conflict, resolution, Alternative Dispute Resolution, ADR, confidential, judicial settlement, law, litigation

JEL Classification: D74, J52, K19, K39, K41, K42, K49