Mediation: The New Arbitration

\\jciprod01\productn\H\HNR\17-1\HNR102.txt unknown Seq: 1 10-APR-12 8:58 Mediation: The “New Arbitration” Jacqueline Nolan-Haley* ABSTRACT Mediation once offered disputing parties a refuge from the courts. Today it offers them a surrogate for arbitration. As lawyers become increasingly involved representing parties in mediation, the boundaries between mediation and arbitration are blurring. Lawyers generally control the mediation process, considering it the functional equivalent of a private judicial settlement conference. Legal mediation has taken on many of the features traditionally associated with arbitration: adversarial posturing by attorneys in the name of zealous advocacy, adjudication by third party neutrals, and the practice of mediator evaluation. While mediation advances toward an arbitration model, arbitration is becoming the “new litigation.” I argue that mediation’s move to the zone of arbitration practice is problematic because it clashes with mediation’s core values of self-determination and participation. This directional shift limits the spectrum of options available to disputing parties, depriving them of mediation’s benefits: the opportunity to experience individualized justice as a relief from the rigidity of the formal justice system. Mediation stands at a crossroads and it is worth reflecting on whether the time has come to pull in the reins. Part I of this Article discusses the fading popularity of arbitration and the rise of mediation as an alternative to the court adjudication of disputes. Part II describes three dimensions of legal mediation’s advance toward the arbitration zone: the aggressive behaviors of lawyers as mediation advocates, operating in a weak ethical regime that * Professor of Law, Fordham University School of Law. I thank Cathy CroninHarris, Dwight Golann, Mariana Hernandez-Crespo, Jonathan Hyman, Caroline Wilkes Kaas, Catherine McCauliff, Jim McFarlane, Gregg Relyea, Kathleen Scanlon, Edna Sussman, Harry Mazadoorian and participants at the Quinnipiac/Yale Dispute Resolution Workshop for their helpful feedback on earlier drafts. Erin Forst, Elliott Nathanson, Natasha Petrukhin and Damien Weinstein provided excellent research assistance. 61 \\jciprod01\productn\H\HNR\17-1\HNR102.txt 62 unknown Seq: 2 Harvard Negotiation Law Review 10-APR-12 8:58 [Vol. 17:61 permits some forms of deception; the practice of mediation evaluation; and the use of hybrid processes blending mediation with arbitration. Part II also discusses selected aspects of an empirical study of lawyers’ behaviors in mediation conducted by the author, and ends with a cautionary tale about compliance problems in mediation and arbitration. Part III explores why mediation is moving in the direction of arbitration and what implications flow from this phenomenon. The Conclusion raises pedagogical and policy concerns as mediation stands at the crossroads. CONTENTS Introduction: Mediation’s Loss of Identi