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<xTITLE>Proposal for Standard Explanation in Mediation</xTITLE>

Proposal for Standard Explanation in Mediation

by John Lande
June 2021

Indisputably

John Lande

Since writing my recent short article, Courts Should Make Mediations Good Samaritans Not Frankensteins, I have been thinking about how to maximize the substantial benefits of court-connected mediation while minimizing the risks of coercion.

Most mediators, mediation program administrators, and courts are conscientious about providing appropriate, high-quality mediation services.  Unfortunately, with some frequency, there have been reports of problematic behaviors by mediators, lawyers, and parties.  The challenge is how to maximize the former and minimize the latter.

Coercion is problematic in any mediation regardless of whether parties have been ordered to mediate.  When courts order parties to mediate, the courts have an obligation to minimize the risk of coercion.

This new short article proposes that courts require that standard explanations be provided to parties about the mediation process and their rights in mediation, and it offers model language that can be adapted to particular circumstances.

The language and process for administering the explanation should be developed through a dispute system design process designed to improve preparation for mediation.  This article identifies potential obstacles to effective implementation of this strategy.  With sufficient commitment, courts, lawyers, and mediators can optimize parties’ experiences of court-connected mediation and reduce their risks.

Take a look.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



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