Court Sponsored Mediation: The Case Against Mandatory Participation
| Date | 01 May 1993 |
| Author | Richard Ingleby |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb02682.x |
| Published date | 01 May 1993 |
May
19931
Court Sponsored Mediation: The
Case
Against Mandatory Participation
Court
Sponsored Mediation: The Case Against
Mandatory Participation
Richard
Ingleby
*
Introduction
One response to the perception of a crisis’ in contemporary legal systems has been
the promotion of mediation as an alternative form of dispute resolution. Although
informal modes of dispute resolution have been under critical examination for some
time,2 the debate has been given fresh life by the converging interest in sponsoring
mediation of court administrators, or more precisely, court budget and legal aid
administrators, and mediation interest
group^.^
This is not to suggest any formal
alliance
or
joint ~trategy,~ but rather that the two groups have a common interest
and interdependency in cases being diverted from the legal system to
mediator^.^
Court administrators have too many cases and mediators too few. For these two
*Faculty of Law, The University of Melbourne; Gadens Ridgeway, Lawyer, Melbourne.
For a critique of the perception, see Fitzgerald, ‘Grievances, Disputes and Outcomes: A Comparison
of Australia and the United States’
(1983)
1
Law
in
Context
15;
Galanter, ‘Reading the Landscape
of Disputes: What we Know and Don’t Know (and Think we Know) About our Allegedly Contentious
and Litigious Society’
(1983) 31
UCLA L Rev
4;
Hensler
et al, Trends in Tort Litigation:
The
Story
Behind the Statistics
(Santa Monica: Rand,
1987)
p
30;
MacCoun
et al, Alternative Dispute Resolution
in Trial and Appellate Courts
(Santa Monica: Rand,
1992)
p
97;
Sarat, ‘The Litigation Explosion,
Access to Justice and Court Reforms: Examining the Critical Assumptions’
(1985) 37
Rutgers
L
Rev
319,
pp
329-330, 334-335.
Abel (ed),
The
Politics
of
Informal Justice
(New York: Academic Press,
1982);
Eekelaar and Katz
(eds),
The
Resolution
of
Family Conflict: Comparative Perspectives
(Toronto: Buttenvorths,
1984);
Freeman (ed),
The
State, the
Law
and the Family: Critical Perspectives
(London: Tavistock,
1984);
Tomasic and Feeley (eds),
Neighbourhood Justice: Assessment
of
an Emerging Idea
(New York:
Longman,
1982).
Mediation interest groups include both community mediation groups and organisations of lawyers
who profess expertise in mediation.
Foucault, ‘The Confession of the Flesh’ in Gordon (ed),
PowerKnowledge: Selected Interviews and
Other Writings,
1972-1977
(London: Harvester,
1980)
pp
204-207;
Hunt, ‘Foucault’s Expulsion
of Law: Toward a Retrieval’
(1992) 17
Law
and Social Inquiry
1,
pp
13-15, 34-37;
‘Law and the
Condensation of Power’
(1992) 17
Law
and Social Inquiry
57,
p
58;
Sarat, cited at n
1,
p
336;
Silbey
and Sarat, ‘Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the
Reconstruction
of
the Juridical Subject’
(1989) 66
Denver U
L
Rev
437,
p
445;
Tomasic, ‘Mediation
as an Alternative to Adjudication: Rhetoric and Reality in the Neighbourhood Justice Movement’ in
Tomasic and Feeley (eds), cited at n
2,
pp
215-217.
Sarat, cited at n
1,
p
330;
Galanter, cited at n
1,
pp
36-37;
Harrington, ‘Popular Justice, Populist
Politics: Law in Community Organizing’
(1992)
1
Social
and
Legal Sfudies
177,
p
177;
Merry, ‘Popular
Justice and Social Transformation’
(1992)
1
Social and Legal Studies
161,
p
171;
Harrington and
Merry, ‘Ideological Production: The Making
of
Community Mediation’
(1988) 22
Law
&
Society
Rev
709,
pp
721-723,73
1;
Eekelaar and Dingwall, ‘The Development of Conciliation in England,’
p
17,
‘A Wider Vision,’ p
169
in Dingwall and Eekelaar (eds),
Divorce Mediation and the Legal
Process
(Oxford: Oxford University Press,
1988);
Bottomley and Roche, ‘Conflict and Consensus:
A Critique of the Language of Informal Justice’ in Matthews (ed),
Informul
Justice?
(London: Sage,
1988)
p
92.
See also Fitzpatrick, ‘The Impossibility of Popular Justice’
(1992)
1
Social and Legal
Studies
199,
pp
202, 209.
0
The Modem Law Review Limited
1993
(MLR
56:3,
May). Published by Blackwell
Publishers,
108
Cowley Road, Oxford
OX4
1JF and
238
Main Street, Cambridge,
MA
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USA.
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