Mediation Statute, 13 Ohio St. J. on Disp. Resol. 885 (1998)
During the past fifteen years, the alternative dispute resolution movement has greatly altered the legal landscape. Courts, legislatures and administrative agencies have enacted more than 2000 laws dealing with mediation and other dispute resolution processes. The National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Bar Association Section of Dispute Resolution have recently formed a unique partnership to assess whether a model or uniform mediation statute might remedy some of the problems caused by the current patchwork of often confusing and conflicting mediation laws. The task of drafting a comprehensive mediation statute poses many challenges. The drafters must consider a number of criteria, e.g., efficiency, efficacy and justice, and a number of constituencies, e.g., parties, attorneys and the judicial system, when crafting the provisions of the act. Our task in this article is to focus on one criterion, satisfaction, and one constituency, parties.
We approach this task with two modest goals. First, we hope to provide a clear and concise understanding of the factors that promote party satisfaction with mediation. Thus, in the first part of this Article, the "understanding" part, we review the empirical research on party satisfaction and propose three sets of factors that affect it: party expectations, process factors and outcome factors. Second, we hope to provide the drafters with guidance on how they might draft provisions to promote party satisfaction. Thus, in the second part of this Article, the "promoting" part, we examine, by way of example, how the drafters might craft three statutory provisions in light of the factors we have identified.
While we agree that the drafters should be "wary of using measures of satisfaction as a proxy for substantive fairness," we believe that party satisfaction is an essential criterion for the drafters to take into account. From utilitarian, market and therapeutic perspectives, party satisfaction might be the most important criterion for the drafters to consider. We express no opinion in this Article on the relative merits of the various criteria that should be considered, but we strongly urge the drafters to consider party satisfaction, along with other important criteria, when drafting a comprehensive mediation statute.
Chris Guthrie & James Levin, A "Party Satisfaction" Perspective on A Comprehensive Mediation Statute, 13 Ohio St. J. on Disp. Resol. 885 (1998)