The Jurisprudence of Mediation: Between Formalism, Feminism and Identity Conversations

Authors

Michal Alberstein, Bar Ilan University

Abstract

The paper explores the ties between schools of mediation and schools of law through an examination of their theoretical foundations. By weaving together discussions of rights, the rule of law, and formalism, with elements of dispute resolution as it is studied today, this article will demonstrate the importance of Alternative Dispute Resolution ("ADR") and mediation as a form of social order. It will also demonstrate the influence of philosophical jurisprudential debates on the development of mediation programs. The paper begins by exploring the ties between different jurisprudential traditions and evolving models of mediation. Scholars portray mediation models as incorporating diverse ideologies that inform diverse jurisprudential traditions. Aside from the differences between the models, which correspond to diverse legal intellectual traditions, the models also share a number of fundamental principles, which this work outlines. The paper also proposes a distinctive jurisprudence of mediation, which differentiates it from the legal worldview. The "identity conversation" jurisprudence, which this paper develops for the practice of mediation, corresponds to the three models of mediation described here and captures the uniqueness of dispute resolution as a theoretical development in law.

Disciplines

Comparative and Foreign Law | Dispute Resolution and Arbitration | International Law | Jurisprudence | Law

Recommended Citation

Michal Alberstein, The Jurisprudence of Mediation: Between Formalism, Feminism and Identity Conversations, 11 Cardozo J. Conflict Resol. 1 (2009).
Available at: https://larc.cardozo.yu.edu/cjcr/vol11/iss1/3