Articles and Video:
This article examines the alleged gap between mediation and justice. It considers ideas of both substantive and procedural justice and examines persistent critiques of mediation as falling short of the supposed gold standard of litigation. It goes on to propose an alternative reading of mediation as a site where parties are empowered to negotiate not only the outcome of their dispute but the criteria by which that outcome is judged. This can be read as providing more rather then less justice, particularly in diverse societies where legal and social norms are contested.
Business As Usual? Mediation and the Justice System (05/19/13)
This article considers the under-use of mediation in the UK's second largest jurisdiction, Scotland. The article has three sections: a "myth buster" and two questions. The first examines three popular myths about mediation; the second addresses the question, "How does mediation add value to the justice system"; and the third presents the business case for lawyers, "Why does mediation make good business sense?"
A New Generation of Mediators (02/13/12)
Scotland has not been quick to adopt mediation. I have written before about the wariness shown by some of our most senior judiciary, and Scottish litigators have told me they have more experience of mediation in London than in Edinburgh or Glasgow.
The Three Pillars of Mediation (01/16/12)
Like many of us I am constantly torn between simplicity and complexity. The world is complex: that’s a given. But a beautiful morning or a lover’s kiss is simplicity itself, and it’s a fool who overcomplicates it.
Hanging On The Telephone: The Future of Mediation? (11/14/11)
I recently attended training in ‘telephone mediation’ delivered by two members of Mer Majesty’s Court Service (HMCS) Small Claims Mediation team. Over 99% of their mediations are conducted over the telephone in an hour or less.
What Mediation Tells Us About Mediators, Their Clients and Society (02/28/11)
Mediation is a funny old word. Pop it into Google Images and you get handshakes, jigsaws, tin-can phones and complicated diagrams. Some suggest agreement; some complexity; some downright difficulty. Mediation certainly means different things to different people. The dictionary definition is simple: ‘to settle (dispute, strikes, etc) as an intermediary between parties; reconcile.’ But in today’s launch of this new mediation scheme, I am less interested in what mediation means than in what it says, or what it tells us. I believe that mediation says something important about the people who mediate, about the people they mediate with and about society as a whole. 1 Comment
What Mediators Can Learn From The UK’s Seven Principles Of Public Life (05/10/10)
New mediators face a challenge: In addition to learning new techniques, they quickly realize that equally important are the values that they bring to the work. However, most mediator training offers little guidance on the sources of such values. This article considers the UK’s "Seven Principles of Public Life," articulated in an attempt to maintain high standards of probity in holders of public office. Although not necessarily public servants, mediators also fulfill an important representative role and can usefully adopt these principles as one source of agreed-upon societal norms.
Mediation And Social Norms: A Response To Dame Hazel Genn (06/29/09)
The article is a response to Dame Hazel Genn’s 2008 Hamlyn Lecture, in which she characterized mediators as having ‘no interest in justice and fairness.’ The article argues that mediators’ own rhetoric has allowed this caricature to develop and suggests that, in practice, mediators are no longer indifferent to norms like justice and fairness, if they ever were. Drawing on the work of Ellen Waldman and Julie MacFarlane this article examines the role of social norms and ethical codes in mediation practice, and calls on mediators to examine their values. 1 Comment