Contracting Mediation: The Impact of Different Statutory Regimes

Abstract

The United States is commited to increasing institutionalized use of alternative dispute resolution (ADR), most often based on the claim that it is superior to and different from traditional litigation. Mediation in particular is supposed in the popular view to be user-friendly, nonadversarial, and conducive to optimal, wholistic resolutions. Litigation, in contrast, is supposed to be slow, costly to all, impersonal, formal, legalistic, and incapable of giving complete or satisfactory resolutions. This implicitly assumes that ADR and litigation are discrete processes, each with uniform and intrinsic natures. This, in turn suggests an assumption that they retain these qualities under all circumstances. In this popularized, Manichean, and romanticized view, ADR and, in particular mediation, possesses uniformly positive qualities and litigation uniformly negative ones. This paradigm has come to infuse our current system of justice, including the courts, the legislature, and even legal education. The pervasive acceptance of this viewpoint has serious consequences for how justice is to be administered in the United States for the foreseeable future. This article uses a case study in which a mediation procedure remained the same while the substantive law was changed. It examines whether, although the mediation procedures have remained the same, the experience of mediation has altered.