There are many types of mediation. This article focuses exclusively on mediations within Professor Lande's "liti-mediation culture" - those dealing with disputes that are or may become the subject of litigation. I address both court-connected and private mediations as I believe that the potential for bad faith exists in both. Following this Introduction, in Part II, I examine definitions of "good faith" in mediation, I then review commentary and case law on good faith requirements. In Part III, I argue that certain objectively determinable behavior ought to be proscribed. By contrast, some good faith standards adopted by courts or advocated by scholars, in my view, infringe upon parties' rights of self-determination. These include requirements that parties make specific offers or that representatives possess "adequate" settlement authority. Part IV contains my suggestions for standards of good faith in mediation and discussion of how such standards might be implemented. My conclusions are set forth in Part V.
Roger L. Carter,
Oh, Ye of Little (Good) Faith: Questions, Concerns and Commentary on Efforts to Regulate Participant Conduct in Mediations,
2002 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol2002/iss2/3