Thursday, 1 January 2009

The problem with dispute resolution...

It is easy, within dispute resolution, to imagine that the movement is beyond criticism.

This is one of the topics addressed in the excellent book "Beyond Neutrality" by Bernard Mayer.

Here is another reminder reported in the Law Society Gazette a couple of weeks ago. Dame Hazel Genn, professor of socio-legal studies at University College London, is quoted as saying that mediation "Is not about just settlement" Instead, she asserts, "It is just about settlement."

There are various schools of socio-political criticism of dispute resolution suggesting that ADR processes perpetuate power imbalances and abuses, keep resolved issues out of the body of publicly decided cases and precedents, and the critique levied here that mediation and ADR processes somehow sidestep or marginalise this thing called Justice.

The article, written by Joshua Rozenburg is stridently put and does not seem to hold too much sympathy with Dame Hazel Genn's position. It is worth noting however that the lectures in which her critique was presented are to be published later in Spring.

It will be interesting to read the whole speech to ensure that her reported comments are in context and also to hear more about the objections to dispute resolution. As Bill Gates is reported to have once said; "Your most unhappy customers are your greatest source of learning."


Anonymous said...

Dame Hazel's critique, 'Mediation is not about just settlement. It is just about settlement', can be taken in at least two ways in my view. The narrower meaning, and I believe the one she had in mind, is that mediation achieves settlement at the expense of [social] justice, i.e. mediation's chief objective is settlement and not a just settlement in line with the rule of law. The broader meaning is that in being just about settlement, mediation sacrifices other goods that are not otherwise accessible, viz. self-determination. It would be well in this debate for both perspectives, the cost to both civil justice and to self-determination, to be present.

Neil said...

Very interesting. I hadn't thought about mediation restricting self-determination.

In a binary choice between trial or mediation, however, surely mediation offers a greater degree or possibility of self determination, or could that be no more than an illusion?