How Might the Adversarial Imperative be Effectively Tempered in Mediation?

Legal Ethics 15 (1):111-122 (2012)
Abstract
The objective of this paper is to discuss the tradition of adversarialism as it relates to mediation and to suggest ways in which good practice can be encouraged amongst mediation advocates. Mediation is a key mechanism for dispute resolution in the English and Welsh jurisdiction. The practice of the lawyers involved in the mediation process is shaped by various factors including training, codes of practice, behavioural norms and court guidance. The default skill set the legal professionals bring to the process is founded on the principle of adversarialism which is not suited to the core values of mediation. The developing professional group of mediation advocates, many of whom are from the legal professions, may benefit from a voluntarily assumed code of practice. The alternatives are to include provisions covering behaviour in mediation into existing codes of conduct for legal professionals and the adoption of more collaborative pre-meditation agreements which include lawyers. A combination of these measures is recommended as a way to assist the process of realignment of the advocate role from that of legal adversary to collaborator
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