The Case for Mediation: The Things that Mediators Should Be Learning and Doing
Arbitration: International Journal of Arbitration, Mediation and Dispute, Vol. 82, No. 1, pp.22-33, 2016
13 Pages Posted: 31 Jan 2016
Date Written: January 29, 2016
This essay is based on the Keynote Address delivered to the 8th Symposium on Mediation at the Chartered Institute of Arbitrators in London, UK. The article uses two memes of intellectual development -- changing ideas of physical space, through new forms of architecture, and legal evolution, to review how mediation has contributed to both conceptual and behavioral changes in legal and human disputing. The essay reviews key conceptual shifts from uses of "battles" and "trials" and different conceptions of "truth" in dispute resolution to more complex notions of game theoretic and human notions of problem definition and solution seeking, contributed by a variety of constituent disciplines both in and out of law. The article reviews some of the successes of modern dispute handling, not necessarily "resolution," for socially productive uses of conflict, based on conflict theory. It then discusses modern challenges in the forms of resistances to mediative forms of conflict management, variable by legal system and cultural "nodes" or differences, the new online and other forms of "non-human" dispute resolution and regulatory complexity. The essay concludes with observations of practice innovations and challenges and new uses for mediation, such as with complex issues of policy formation and deliberation, and international and transnational applications.
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