NCJ Number
107394
Journal
Mediation Quarterly Issue: 17 Dated: (Fall 1987) Pages: 3-9
Date Published
1987
Length
7 pages
Annotation
Requiring mediation as a step in the processing of a dispute may be the only approach that will reliably produce large numbers of mediation cases and produce a change from the current low level use of mediation.
Abstract
Despite support from policymakers and use in many fields, most mediation programs have small caseloads. Several hypotheses have been put forward to explain the low usage of mediation, and all are probably correct. These include Americans' preferences for litigation, lack of awareness of mediation, judges' and lawyers' diversion of cases from mediation, and the parties' failure in negotiations and desire for a formal resolution of a dispute. In response to these problems, mediators and policymakers have taken five approaches, each representing a point on a continuum from completely free choice to no choice by the parties. The first approach uses the traditional approach of doctors and lawyers and lets the parties initiate contacts. This approach results in few cases. A second approach, which produces more cases, gives parties in a court or agency dispute the voluntary option of mediation. A third approach is the 'missionary' approach, which puts the burden on the mediator to identify mediable cases and persuade the parties to use mediation. The fourth approach, the structural inducement approach, is used mainly in labor disputes. The final approach, requiring mediation, would produce the most cases. Although injustice is a possible result of this approach, it can be justified on the basis of the potentially superior quality of results offered. Without strategies to increase caseloads, mediation may go the way of other once-attractive ideas. 2 references.