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Full-Text Articles in Law
Evaluation And Facilitation: Moving Past Either/Or, Richard Birke
Evaluation And Facilitation: Moving Past Either/Or, Richard Birke
Journal of Dispute Resolution
In this essay, I argue that there is no such thing as a purely facilitative mediation of a legal dispute. Neither is there such a thing as a purely evaluative mediation of a legal dispute. Mediation of legal disputes is, by its nature, always facilitative and evaluative. The evaluative-facilitative divide is an artificial artifact of history. Following this introduction, I offer a brief description of the development of the field of legal mediation, and I attempt to place the Riskin grid in historical context. I then hope to push the debate toward a new moment, one in which all mediation …
Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel
Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel
Scholarly Works
Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot …
The Inevitability Of The Eclectic: Liberating Adr From Ideology, Jeffrey W. Stempel
The Inevitability Of The Eclectic: Liberating Adr From Ideology, Jeffrey W. Stempel
Scholarly Works
The problem with viewing facilitation as the only legitimate form of mediation, of course, is that it borders on tautology: mediation is nonevaluative, therefore any evaluation in mediation must be impermissible. Although this view remains strongly held in many quarters, it appears to be in retreat, both within the mediation community and in the legal community at large. Courts and commentators have shown increasing favor toward some evaluative or advising component of mediation. More important, the eclectic style appears to be what takes place in the metaphorical trenches of mediation practice (although sound empirical data is necessarily hard to obtain …