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Orange County Mediation Week

Orange County Mediation Week. Back to First Principles: Why We Mediate Carrie Menkel-Meadow Chancellor’s Professor of Law, University of California, Irvine , Author, Dispute Resolution: Beyond the Adversarial Model ( Wolters /Kluwer, 2011). Mediation Matters.

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Orange County Mediation Week

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  1. Orange County Mediation Week Back to First Principles: Why We Mediate Carrie Menkel-Meadow Chancellor’s Professor of Law, University of California, Irvine, Author, Dispute Resolution: Beyond the Adversarial Model (Wolters/Kluwer, 2011)

  2. Mediation Matters • “Conflicts are created and sustained by human beings. They can be ended by human beings.” • - George Mitchell “There is no intractable problem” -Desmond Tutu Summum ius. Summa iniuria. (The strictest following of the law can lead to the greatest injustice). --Marcus Tullius Cicero

  3. Our Basic Values • 1. Facilitating dispute/conflict resolution to help parties reach “better” solutions • 2. Fostering better communication between people • 3. Ensuring that outcomes are tailored to parties needs (and not just “interests”) • 4. Party participation in own fate- consensual dispute resolution • 5. Preserving, repairing or appropriately ending relationships

  4. Rationales for Mediation • 1. Parties desire control of dispute process • 2. Parties desire control of dispute outcome • 3. Greater satisfaction with or compliance with agreed to solutions • 4. More efficient process (time or cost savings) • 5. Courts’ desire to reduce litigation or dockets • 6. Focus on the possibility of the future • 7. More creative solutions • 8. New norm creation

  5. Our Basic Tools • 1. Care for the parties • 2. Care for larger community • 3. Ability to listen • 4. Ability to communicate • 5. Ability to facilitate negotiation of others • 6. Ability to structure process • 7. Ability to solve and help other people solveproblems

  6. Our Multidisciplinariety • 1. Psychology • 2. Social Work • 3. Law • 4. Education • 5. Accounting • 6. Engineering/Construction/Architecture • 7. Medicine/Nursing

  7. Our History • 1. Religion • 2. Labour • 3. Community • 4. Family • 5. Civil law • 6. Criminal law • 7. Restorative Justice • 8. International

  8. Our Critics-Why? • 1. Professional “turf” – lawyers, arbitrators, economists, psychologists • 2. Principled-need for “public” not private justice (Dame Genn –Hamlyn Lectures on Civil Justice and American “roots” of argument) • 3. Fairness and equality in the process • 4. Quality control? • 5. “Settlement” vs. “Justice” (law enforcement) • 6. Too much focus on future—what about past?

  9. Our Answers: Why We Mediate • 1. Broader, deeper solutions to problems • 2. Party voice and choice • 3. Process pluralism (one size does not fit all) • 4. Put parties in better position than before or in relation to other dispute resolution choices • 5. “Limited remedial imagination” of courts, arbitrations and other binary institutions • 6. Possibility of principle, bargaining and emotion in one room (multiple discourses simultaneously) • 7. Enhance/increase human understanding of the “other” • 8. Justice and Peace together

  10. Our Way Forward • “The skillful management of conflicts [is] among the highest of human skills.” • --- Stuart Hampshire, Justice is Conflict, at 35 • (2000) The Tanner Lectures

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