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Lecture 17


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Carleton University
LAWS 1000
Jane Dickson

Lecture 17 Legal Studies LAWS 1000-C ALTERNATIVES TOADJUDICATION /ALTERNATIVES WITHADJUDICATION THE DEBATE OVER USE OF SETTLEMENT-BASED DISPUTE RESOLUTION PROCESSES Required Readings: I. Course Reader, 18(a)-(c). II. Course Reader, 19(a)-(c). III. Eckhoff, “The Mediator and the Judge”; Wiegers & Keet, “Collaborative Family Law…”; Fiss, “Against Settlement”, McThenia & Schafer, “For Reconciliation” REVIEW:ADJUDICATION • Brooks: Role of adjudicator profoundly impacted by nature of the adversarial process in which adjudication takes place • Two Key Terms: • Adversarial system • Adjudication • Two Key Principles: • Principle of party autonomy • Principle of party prosecution • Why adversarial presentation is best means for ‘fact-finding’: • consistency with culture • reifies ‘duel’ • camaraderie of client & counsel • appearance of judicial impartiality • Adversarial v. Inquisitorial Systems • Saunders: conflicting ideas of ‘fact’ • Roach: competition & ‘tunnel vision’ TODAY • Eckhoff, “The Mediator & the Judge” • Explains mediation and adjudication through reference to the role of the mediator & judge. • While judges and mediators play very different roles in very different types of dispute resolution processes, the nature of dispute resolution results in important similarities in those roles • Mediation Defined: • …Mediation is a process whereby the parties are influenced to come to an agreement by appealing to their own interests • Mediator’s Role: • …is to assist the parties to understand their interests and assist them to locate an acceptable compromise between their interests. • Mediators have a range of tools to assist parties to reach compromise: • focus parties on best shared outcome, rather than best individual outcome • offer fresh perspective on the conflict • threats or promises to press the value of compromise (i.e., court!) • Important qualities of mediator: • Impartiality - must maintain parties’confidence in the mediator’s neutrality & competence • Moderation - compromise is more likely where mediator is calm and in control of the process Lecture 17 Legal Studies LAWS 1000-C • Reasonableness – compromises must respect parties’rights and interests to the greatest possible degree and be workable • Conditions conducive to good mediation • Both parties are motivated to resolve the conflict • If not, mediator must convince them of value of resolution • Mediator may appeal to normative sensibilities to do so • Parties share normative positions (ideas of right & wrong) • If yes, conflict may be less about right & wrong than ‘fairly pure conflict of interests’ TWO REASONS WHY MEDIATION IS LESS LIKELY WHERE NORMS DIFFER: • 1) Mediation is about interests, not the interpretation and application of norms. • Norms shape interests, but their interpretation is not central to mediation • 2) Disagreement on norms and their application requires interpretation of the norms, which is not part of mediation • When norms conflict, what is needed is an authority to decide the conflict, and thus in such cases what is needed is not a mediator, but a judge! • Judges function at the level of norms, mediators function at the level of interests! • Judges do not need to encourage compromise, rather, judges simply decide on the appropriate normative position. KEY DIFFERENCES BETWEEN MEDIATORS & JUDGES: 1. Mediators must be prospective in their focus; judges are retrospective 2. Mediators must be skillful negotiators; judges must possess authority to speak on the norms and facts to end conflicts 3. Mediators focus on interests; judges focus on norms 4. Mediators must convince parties of the
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