Mediation as One Step in Adversarial Litigation: One Country Lawyer's Experience

Authors

John R. Phillips

Abstract

This experience stands in stark contrast to the thesis of Professor Deborah Hensler in her article, Suppose It's Not True: Challenging Mediation Ideology. Therein, Professor Hensler attempts to link social psychological research that she interprets as showing dissatisfaction with the use of mediation compared to adjudication, which, in turn, leads her to conclude that clients should prefer counsel who ordinarily can resolve cases successfully without the help of mediation.7 The fallacy of Professor Hensler's argument is evident in several respects. For one, she relies far too heavily on her own intuition and previous empirical research of marginal relevance, and on research by social scientists that is either outdated or so confuses the terminology as to render such data meaningless in the study of ADR procedures under current practice and terminology. Further, Professor Hensler adds to the confusion in terminology by inappropriately juxtaposing "mediation" to "adversarial litigation and adjudication," thereby ignoring that in practice mediation most often occurs in the context of -not in lieu of - adversarial litigation. To suggest that the adversarial nature of litigation is lost or even diminished by mediation ignores the reality of how mediation is most often used, which is to bring adversarial litigation to a conclusion more quickly, cost effectively, and with the parties having greater control over the outcome, sometimes resulting in creative solutions not attainable through adjudication. The greatest fallacy of her thesis, however, is borne in the second paragraph of her article, when she asserts that empirical evidence to support the claim (that mediation would save courts and litigants time and money) "has failed to materialize," citing her own previous work as the only authority for her shaky conclusion.

Recommended Citation

John R. Phillips, Mediation as One Step in Adversarial Litigation: One Country Lawyer's Experience, 2002 J. Disp. Resol. (2002)
Available at: https://scholarship.law.missouri.edu/jdr/vol2002/iss1/9