A Traditionalist Looks at Mediation: It's Here to Stay and Much Better than I Thought
18 Pages Posted: 26 Aug 2012
Date Written: 2003
I have come to realize that mediation is a major portion of the new era of civil procedure. Moreover, I have come to believe that, despite some lingering reservations, this is a positive development in the evolution of American civil procedure. But, mediation cannot function effectively wihtout a judicial recommitment to the trying of cases. It is critical that judges do more judging and less managing. "Judge," as Judith Resnik has recently pointed out, "is a verb as well as a noun." Ironically, as mediaiton becomes increasingly the norm, it should become easier and more desirable for judges to judge.
By mediation, I mean "a process in which a person not involved in a dispute helps the disputing parties negotiate a settlement." I believe that process will continue to thrive for four reasons. First (Part II), there is much evidence of growth. Second (Part III), lawyers largely drive a litigation system, and there are powerful reasons why they are drawn to settlement and, in turn, to mediation. Third (Part IV), there are strong historical forces, including the agendas of influential actors, pushing mediation as a major component of civil litigation. Fourth (Part V), the increased use of mediation is salutary for many reasons and the critiques of mediation are overstated. I will end (Part VI) with a plea for judges to spend an increased portion of their time in their more traditional role.
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