Richard Birke


In this essay, I argue that there is no such thing as a purely facilitative mediation of a legal dispute. Neither is there such a thing as a purely evaluative mediation of a legal dispute. Mediation of legal disputes is, by its nature, always facilitative and evaluative. The evaluative-facilitative divide is an artificial artifact of history. Following this introduction, I offer a brief description of the development of the field of legal mediation, and I attempt to place the Riskin grid in historical context. I then hope to push the debate toward a new moment, one in which all mediation is deemed both evaluative and facilitative. In this section, I describe a rudimentary equation that portrays all mediation of legal matters as involving two indispensable and unavoidable kinds of activity, one inherently evaluative and the other inherently facilitative. In the conclusion of this essay, I suggest that we address other equally important but long-neglected questions about mediators and mediation.



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