Toward More Sophisticated Mediation Theory

2000 J. DISP. RESOL. 321

14 Pages Posted: 5 Feb 2015

See all articles by John Lande

John Lande

University of Missouri School of Law

Abstract

This is a brief commentary on Professor Jeffrey Stempel’s article, The Inevitability of the Eclectic: Liberating ADR from Ideology, which was the focus of a symposium in the University of Missouri’s Journal of Dispute Resolution. Prof. Stempel addresses the debate over facilitative and evaluative mediation, which he argues is predicated on an ideology that uses a false and overly formalistic dichotomy. I agree with him that some proponents of facilitative mediation take a rigidly orthodox position that facilitative mediation is the only legitimate form of mediation. I also favor the availability of a range of styles of mediation, including evaluative mediation in appropriate situations.

Nonetheless, I argue that the facilitative-evaluative debate has helped generate benefits that Prof. Stempel's article does not adequately acknowledge. Facilitation proponents have highlighted how mediation can promote many important values such as party self-determination, and they have cautioned about risks of unfairness created by mediator evaluation. The debate over the propriety of facilitative and evaluative techniques has stimulated a better appreciation of the appropriateness of these techniques in different types of cases. It has also contributed to reducing ill-considered evaluation practice. It may also cause mediators to question taken-for-granted mediation theory, reject simple assumptions, and develop a more sophisticated understanding of the process.

Keywords: mediation, mediation styles, mediation philosophy, mediation ideology, mediation theory, evaluative mediation, facilitative mediation, pluralism, orthodoxy

Suggested Citation

Lande, John, Toward More Sophisticated Mediation Theory. 2000 J. DISP. RESOL. 321, Available at SSRN: https://ssrn.com/abstract=2560536

John Lande (Contact Author)

University of Missouri School of Law ( email )

Hulston Hall
Columbia, MO 65211
United States

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