Mediation as Regulation: Expanding State Governance Over Private Disputes

55 Pages Posted: 13 Oct 2015 Last revised: 28 May 2016

See all articles by Lydia Nussbaum

Lydia Nussbaum

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: October 12, 2015

Abstract

Across the United States, state legislatures are issuing new mediation mandates that govern how private parties resolve their disputes. Legislatures embed these mediation mandates into specific statutory regimes ranging from foreclosure to health care to insurance coverage. Rather than leave decisions about ADR design to other state institutions, like courts or administrative agencies, legislatures increasingly retain that authority and formalize the mediation process with legal requirements that regulate parties’ behavior and influence mediation outcomes. This Article explains how legislatures wield mediation as a regulatory tool in this latest phase of mediation’s institutionalization. It argues that statutory mediation mandates should be viewed as a form of decentralized governance, a paradigm that reconfigures the relationship between public and private spheres of power. Viewing these mandates as decentralized governance reveals what can be helpful, and also problematic, about formalizing mediation and underscores why legislatures must exercise care when designing procedural architecture.

Keywords: mediation, legislation, policy, governance, ADR

Suggested Citation

Nussbaum, Lydia, Mediation as Regulation: Expanding State Governance Over Private Disputes (October 12, 2015). Utah Law Review, 2016, Forthcoming; UNLV William S. Boyd School of Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2673269

Lydia Nussbaum (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

HOME PAGE: http://law.unlv.edu/faculty/lydia-nussbaum

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