Mediation: The Best and Worst of Times

Professor Jacqueline M. Nolan-Haley, Director of the Conflict Resolution and ADR Program at Fordham University School of Law, has published “Mediation: The Best and Worst of Times,” 16 Cardozo Journal of Conflict Resolution 731 (2015); Fordham Law Legal Studies Research Paper No. 2625727. In her paper, Professor Nolan-Haley argues that forced mediation should be abandoned in favor of a consent-based system.

Here is the abstract:

At this period in the evolution of dispute resolution, mediation is in a unique time zone, similar to what Dickens described in a Tale of Two Cities, as the best and worst of times, the seasons of Light and Darkness. It is the best of times, the season of Light and a time of joy in honoring human connections, as mediation is widely embraced in the public and private sectors. From government agencies and courts to corporations and United Nations peacemaking units, mediation offers a vision of hope in the midst of drowning bureaucracies, clogged dockets, corporate scandals and ethnic conflicts. But it is also the worst of times, the season of Darkness and sadness, as mediation escapes to her slumber and hibernates, surrounded by problems that need to be resolved, and could potentially be resolved, if only she were responsive.

Responding to one of the questions raised in this Symposium — is mediation sleeping — I take the optimistic view that mediation is not sleeping but simply resting, exhausted from the multiple demands placed on her. I make a modest claim that we can reasonably hope she will arise from her rest, radiate light, and offer the potential for healing when the value of consent is once again acknowledged and respected. In short, we need a renewed appreciation of consent in mediation.

You may download Professor Nolan-Haley’s scholarly articles free of charge through the Social Science Research Network’s website.

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