mediation as dialogue, rule of law, dialogue theory, mediation
In this paper the author urges discussion on the legitimacy of mediation processes, a discussion that is not prevalent in legal scholarship. The author argues that mediation outcomes can be inconsistent with the rule of law given that the same case can have a different outcome depending on whether it is litigated or mediated. On the other hand, crucial and valuable aspects of mediation can result in a presumption of legitimacy. With the rule of law critique in mind, the author discusses how dialogue theory can be used to improve upon the mediation process.
The author begins by exploring the value inherent in the rule of law, which poses a conundrum for court-annexed mediation because it is not designed to administer law in the same way as adjudication. However, this does not make mediation illegitimate. Instead, a framework for mediation can be developed to encompass both rule of law values and mediation’s unique characteristics. Mediation is not a watered-down version of litigation; it is a distinct process of dialogue that centralizes self- determination and consensual decision-making. The author then suggests that dialogue theory can serve as this grounding framework for mediation. Dialogue theory embraces the values of equality and dignity, which underpin the ideals of the rule of law and the key features of mediation. Under this framework, mediators must recognize that their primary role is to secure a fair dialogue and not to champion a settlement. Where there is hesitancy by one party to accept a settlement, the mediator should encourage the party to express their concern rather than forcing the settlement as this facilitates genuine dialogue. To ensure fair treatment of members of our communities, the author concludes by urging that the mediation process and its legitimacy be more widely discussed given its increased importance in the civil litigation system.
Nayha Archarya, "Mediation, the Rule of Law, and Dialogue, (2020) 46:1 Queen's LJ 69.