47 Pages Posted: 13 Sep 2004
Developing procedural rules for points of intersection between mediation and litigation is an important aspect of the evolving relationship between these two processes. Although the goal has been to encourage and support the use of mediation, emerging legal structures involve changes that are seen as threatening fundamental values associated with both the adjudication system and mediation. This paper examines competing adjudication and mediation values in the context of two recent legislative initiatives to provide confidentiality for the mediation process in litigation. It then projects and evaluates tensions that will surface if there is an attempt to add a mechanism for summary enforcement of mediated agreements to the procedural law of mediation.
Scholars predict that the embrace of mediation (the most widespread court-connected alternative dispute resolution process) will erode adjudication functions such as effective enunciation of rights and even the rule of law. Other scholars see effects of institutionalizing mediation within the adversary system that threaten core values such as self-determination. The Uniform Mediation Act (UMA), drafted by the National Conference of Commissioners on Uniform State Laws and the American Bar Association, illustrates compromises in both sets of values. The International Model Law on International Commercial Conciliation, negotiated at the United Nations Commission on International Trade Law, somewhat reduced the need to resolve procedural conflicts with its more limited scope and pervasive emphasis on party autonomy. Its incorporation into the UMA, however, extends the domestic balancing of values that produced the UMA's mediation privilege into the international context.
Developing a procedure for summary enforcement of agreements reached in mediation could pose even greater challenges for self-determination in mediation and for courts in enforcing private settlements. I tentatively conclude that procedures for enforcement of arbitral awards do not provide a good model for mediation enforcement and caution that a summary procedure could erode defining characteristics of both mediation and adjudication.
Keywords: mediation, adjudication, confidentiality privilege, summary enforcement
JEL Classification: K40, K41
Suggested Citation: Suggested Citation
Deason, Ellen E., Procedural Rules for Complementary Systems of Litigation and Mediation - Worldwide. Notre Dame Law Review, Vol. 80, 2004. Available at SSRN: https://ssrn.com/abstract=583141