North Dakota Law Review
The acceptance and use of mediation by courts--at the state and federal level-- has grown steadily over the last several decades. Today, mediation is a central element in the overall case-management system of many courts, and this phenomenon continues to grow unabated.At the same time, however, another quite different phenomenon has emerged--the expression of serious criticism from mediation scholars and experts about the way mediation is used by the courts. Indeed, it appears that judges and lawyers in the court system, on the one hand, and mediation experts on the other, understand court-related mediation--and mediation itself--in very different terms. Ironically, mediation's widest acceptance by the courts has become the occasion for intense concern and even fearfulness from the mediation “community” itself.
This article suggests that the current ambivalence about the relationship of mediation to the courts is only the latest phase of a four-decade-long tension in this “partnership” of two very different dispute resolution processes. From the earliest beginnings of the “modern mediation field” in the late 1960s to the present, the relationship of mediation to the courts has fluctuated between two orientations. In the first, mediation has been seen and has served as a faithful “servant” of the court system, performing functions vital to the courts and to effective judicial administration. In the second, mediation has been encouraged and has sought to “break free” and establish itself as a separate and distinct conflict resolution process, performing very different functions that are vital to society but unrelated to judicial administration per se. The cycling between these two orientations is driven by the very different potentials mediation offers as a social process, as viewed through different professional eyes. These different views explain why some today are gratified by what they see as mediation's success in finding a firm place in the court system, while others are discouraged by what they see as the court system “capturing” mediation and depriving it of its real social value.
Robert A. Baruch Bush,
Staying in Orbit, or Breaking Free: the Relationship of Mediation to the Courts Over Four Decades, 84 N.D. L. Rev. 705
Available at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/112