Goals and Values in Dispute Resolution

Fourth Asian Mediation Association Conference

Beijing, 20-21 October 2016

Values in Mediation

Party autonomy and self-determination

  • Direct participation

  • Non-adversarial ethos

  • Needs and interests focus

  • Focus on common interests, mutual gains

  • Based on local norms

  • Relational approach

  • Future focus

  • Individualised nature

Counter-Values in Mediation

‘There are limits to private ordering…’

  • Limited formality and ritual

  • Power factors can be determinative

  • Reduced transparency and accountability

  • Absence of precedent

  • Substantive justice not guaranteed

  • Not societal norm-supporting

Contradictions

Mediation values should inform DR goals …

  • … but in reality efficiency goals can trump mediation values

Civil Procedure Act 2005 (NSW) Section 56

The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act … and when it interprets any provision of this Act or of any such rule.

A party to civil proceedings is under a duty to assist the court to further the overriding purpose and … to participate in the processes of the court and comply with directions and orders of the court.

Blending DR Processes Non-adversarial DR in the courts …? … and judicialised DR in mediation….?

  • Adapting litigation

Pre-action DR

Case management

Court referrals to DR

Judicial mediation

  • Adapting mediation

Mandatory mediation

Evaluative mediation

Med-arb and arb-med-arb

Shadow of the law

Why Values Matter EU DirectiveNew York ConventionUNCITRALPrivate initiatives in ODR, global DR and the like …

  • Needed in the blended systems

  • Relevance to professional legal identity

  • Values reflected in standards and professional conduct rules

  • Quality assurance for consumers required in mediation’s growth

  • Many innovations are imminent


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