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

Dispute Resolution Magazine, p. 34-38 (Winter 2014)

5 Pages Posted: 4 Mar 2014

See all articles by Sarah Rudolph Cole

Sarah Rudolph Cole

Moritz College of Law

Craig McEwen

Bowdoin College

Nancy H. Rogers

Ohio State University (OSU) - Michael E. Moritz College of Law

James Richard Coben

Hamline University School of Law; American Institute for Economic Research

Peter N. Thompson

Hamline University - School of Law

Date Written: January 1, 2014

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

Suggested Citation

Rudolph Cole, Sarah and McEwen, Craig and Rogers, Nancy H. and Coben, James Richard and Thompson, Peter N., Where Mediation is Concerned, Sometimes 'There Ought Not to Be a Law'! (January 1, 2014). Dispute Resolution Magazine, p. 34-38 (Winter 2014). Available at SSRN: https://ssrn.com/abstract=2403981

Sarah Rudolph Cole

Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

Craig McEwen

Bowdoin College ( email )

Brunswick, ME 04011
United States

Nancy H. Rogers

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

James Richard Coben (Contact Author)

Hamline University School of Law ( email )

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

HOME PAGE: http://law.hamline.edu/james-coben.html

American Institute for Economic Research

PO Box 1000
Great Barrington, MA 01230
United States

Peter N. Thompson

Hamline University - School of Law ( email )

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

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