Mediation Paradigms and Professional Identities
MEDIATION QUARTERLY, June 1984, at 19
30 Pages Posted: 5 Feb 2015
This article, written early in the modern ADR era, provided a framework for developing the mediation field. It begins by elaborating William Simon’s critique of the “ideology of advocacy.” Simon argues that the adversary system is supposed to foster values of individuality, autonomy, responsibility, and dignity, but it often undermines those values in practice. This article catalogs a “parade of horribles” experienced by disputants, attorneys, judges, and the public. These include unequal access to justice, procedural rules that frustrate substantive justice, a narrow set of available remedies, a game psychology undermines respect for law and justice, parties’ alienating experience in litigation, domination of clients by their lawyers, patterns of conflict avoidance and escalation, and a heavy “shadow of law” in negotiation.
The article compares the ABA Model Rules of Professional Conduct with the ABA Family Law Section Standards of Practice for Family Mediators (FLS Standards) to identify some general principles for conflict resolution applicable to both advocates and mediators. These include principles regarding competence of professionals, impartiality of neutrals (such as judges and mediators), avoidance of conflicts of interests, legitimate needs for confidentiality, use of accurate information, consideration of alternative process options, value of negotiation, respect for the role of parties as primary decision-makers in disputes, importance of parties’ interests, respect for legitimate needs of others, and efforts to reduce negative behavior such as violence, intimidation, and unnecessary expense. The article also identifies factors limiting some applications of these principles, including parties’ competence, bad motivations, adversarial attitudes. It uses this analysis to praise and critique various aspects of the FLS Standards.
The article concludes with suggestions for developing the mediation field using what would now be called a “dispute system design” perspective. It calls for engaging key stakeholder groups to pursue a research agenda, identify needs and priorities, evaluate various options to address identified needs, educate professionals and the public about mediation, develop a cooperative relationship between the legal and mental health professions, and secure funding for research and development.
Keywords: mediation, advocacy, adversary, lawyer-client relationships, ethical rule, ethical duty, negotiation, interest-based negotiation, dispute system design
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