Lisa B. Bingham


In this commentary, I suggest that we can get a broader picture of the research agenda to address these policy issues by refining our notions of self-determination. In addition to self-determination over process and outcome in the individual case, we need to start examining who has control over design of the dispute system as a whole. First, this commentary addresses the difference between self-determination at the case level and self-determination in dispute system design and how these two separate dimensions of self-determination can help us distinguish among different uses of mediation and arbitration. Second, using this framework, I attempt to review some of the field research on mediation and relate it to Professor Hensler's essay. This includes work in labor relations that finds disputants rate mediation more highly than arbitration in terms of judgments of procedural justice and work in employment mediation showing that both facilitative and transformative models can provide disputants with a useful alternative to traditional administrative adjudication. Finally, this commentary proposes that the judiciary build data collection into its information systems to facilitate more field research on how different ADR dispute system designs function in a court setting.



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