Pepperdine Dispute Resolution Law Journal
The past decade has seen significant expansion in the acceptance and use of mediation as a process for handling disputes. That expansion has been particularly marked in the legal and business sectors. Indeed, old hands in the ADR field observe that mediation has begun to replace arbitration as the "process of choice" in the ADR (Alternative Dispute Resolution) "market," including institutional users like courts and major private consumers of ADR like businesses. All this is seen by some as part of the "mainstreaming" of mediation discussed by Joseph Folger's lead article in this Symposium. The primary question examined in this essay is: How do we best understand and interpret this development in the ADR field? That is, what is the most convincing account of what this "mediation expansion" phenomenon represents? As postmodernism tells us, there can be many different interpretations of any phenomenon - whether literary, historical, social, or otherwise - and the same applies to developments in ADR. This essay will construct an account of the current expansion in mediation suggesting the phenomenon has little to do with mediation at all and more to do with another, more traditionally accepted process, namely, arbitration.
Robert A. Baruch Bush,
Substituting Mediation for Arbitration: the Growing Market for Evaluative Mediation, and What it Means for the ADR Field, 3 Pepp. Disp. Resol. L.J. 111
Available at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/164