Improving Mediation with Consent?

Jacqueline M. Nolan-Haley, Professor of Law and Director of Fordham University’s Conflict Resolution & ADR Program, has published a thoughtful article entitled, Judicial Review of Mediated Settlement Agreements: Improving Mediation with Consent?, 5 Penn St. Y.B. Arb & Mediation, 2013; Fordham Law Legal Studies Research Paper No. 2249862.  In her publication, Professor Nolan-Haley examines the impact the judicial system may have on the mediation process.

Here is the abstract:

How should we account for the on-going level of buyer’s remorse in many mediations? Because I am concerned in this essay with court-related mediation, I wonder whether it is it because so much mediation now takes place in the shadow of the courts with all its judicial trappings. Does the court environment make parties feel somewhat coerced into participating in, or reaching an agreement in mediation? Does it make their “contractual undertaking” to mediate seem less than voluntary, thus depriving them of any particular moral commitment to keep their promises? Is it because parties may not have given informed consent to participate? Or, is it that many mediators are adept at persuading parties to move in specific directions, possibly to places where the parties did not want to go? Is it because in some contexts, the practice of mediation is becoming very much like the practice of traditional arbitration or like a judicial settlement conference? This essay explores these questions.

This and other scholarly papers authored by Professor Nolan-Haley may be downloaded without charge from the Social Science Research Network.