NCJ Number
48028
Journal
Law and Society Review Volume: 9 Issue: 4 Dated: (SUMMER 1975) Pages: 675-694
Date Published
1975
Length
20 pages
Annotation
PROFESSOR FELSTINER'S VIEW THAT AMERICANS CAN TERMINATE DISPUTES WITHOUT RESOLVING THEM THROUGH AVOIDANCE OF THE OTHER PARTY, AT LITTLE PSYCHOLOGICAL COST TO THEMSELVES, IS CHALLENGED; A METHOD OF MEDIATION IS PROPOSED.
Abstract
THE AUTHORS ARGUE THAT PROFESSOR FELSTINER, IN HIS 1974 ARTICLE, MINIMIZES THE DIFFICULTIES INVOLVED IN REACTING TO DISPUTES WITH AVOIDANCE BEHAVIOR AND OVERLOOKS MANY OF THE SUBSEQUENT COSTS. THE GAP BETWEEN THE PRESENT DEMAND FOR MEDIATION AND ITS SUPPLY IS ALSO NEGLECTED BY FELSTINER IN HIS ANALYSIS. IT IS FURTHER INDICATED THAT FELSTINER MISPERCEIVES AN IMPORTANT ASPECT OF THE NATURE OF MEDIATION BECAUSE OF HIS EXCLUSIVE POSTURE AS A DETACHED OBSERVER OF THE DYNAMICS OF DISPUTES. THE AUTHORS ADVISE THE IMPORTANCE OF ADOPTING A 'DISPUTANT'S PERSPECTIVE' IN ANALYZING THE PROBLEMS INVOLVED IN RESOLVING DISPUTES. EXTENSIVE EXPERIMENTATION WITH MEDIATIVE TECHNIQUES IN AMERICA IS URGED. THE VALUE OF A MEDIATOR EMPLOYED AT THE NEIGHBORHOOD LEVEL, ACTING AS A THIRD PARTY WHO IS NEITHER COERCIVE NOR THREATENING, IS ENCOURAGED SO THAT LITIGANTS MAY THINK ABOUT THE ROOT CAUSES OF THEIR DISPUTES AND BE STIMULATED TO RESOLVE THEM IN A CREATIVE AND MUTUALLY SATISFYING MANNER. REFERENCES ARE PROVIDED.