The Problem With Court Mediation

It’s early in the week for another article of substance and I usually try to back end them, but this one is an exception.

A new article in the George Mason Law Review by Leonard Riskin and Nancy Welsh just might scratch an itch for many of us.

Is that All There is? ‘The Problem’ in Court-Oriented Mediation says that court-oriented mediation now reflects the dominance of lawyers and insurance claims adjusters – and one shot players are not catered for.

Riskin/Welsh opine that these repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and civil non-family disputes as a matter of merits assessment and litigation risk analysis – but say court mediation programs fail to meet expectations and needs of ordinary one time users – mediation is structured so that litigation issues predominate; other issues – personal, psychological, relational, communitarian – disappear.

Abstract: The “alternative” process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties.
However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players.
In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand “the problem” to be addressed in personal injury, employment, contract, medical malpractice and other “ordinary” civil non-family disputes as a matter of merits assessment and litigation risk analysis.
Mediation is structured so that litigation issues predominate; other potential issues – personal, psychological, relational, communitarian – disappear. [read more]

                       

Geoff Sharp

Geoff Sharp is a Commercial Mediator from Wellington, New Zealand. Geoff works in the Asia Pacific region, including New Zealand, Malaysia, Thailand and Pacific Islands. He is a mediator resolving business problems. He is a fellow of the International Academy of Mediators and mediates complex and hotly debated litigation covering… MORE >