In this article, we point out two fundamental flaws of the critique. First, the critique compares mediation to an idealized view of adjudication instead of comparing mediation to its real-life alternatives. Second, it takes a narrow view of the role of law in mediation, erroneously assuming that mediators must either ignore the law or impose it on the parties. Part I of this article spells out the critics' claim that mediation generally harms the poor and disempowered by failing to adequately incorporate formal legal protections into the process. Part II examines the critique as it is applied to the landlord-tenant context; specifically, this section focuses on the power imbalances which impact landlord-tenant negotiations and the many, frequently unknown, formal legal protections that the Massachusetts housing law provides to tenants. Part III offers a response to the critique by arguing that mediation need not ignore legal rights and protections and that mediation fares fairly well in comparison to the actual, real-life alternatives. Part IV provides a theoretical framework for both describing and evaluating the various approaches to incorporating the law into housing mediations and suggests that mediation remains truest to its underlying principles when it focuses on both the legal rights and personal interests of the parties, even though many mediators intuitively believe that such a dual focus is not possible. Part V examines four different approaches to incorporating the law into housing mediation and evaluates two of the approaches by comparing them to their real-life alternatives. Finally, Part VI offers prescriptive advice about how to best achieve the goal of a dual focus on rights and interests in the landlord-tenant context. We suggest that to accomplish this task, mediators and parties must not ignore the law, as some programs do, but rather address it directly.
Joel Kurtzberg and Jamie Henikoff,
Freeing the Parties from the Law: Designing an Interest and Rights Focused Model of Landlord/Tenant Mediation,
1997 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol1997/iss1/5