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Cardozo Journal of Conflict Resolution

Abstract

Mediation scholars have long debated which mediator "style" or "model" is correct. The origin of the debate arises from a foundational piece of scholarship by Leonard Riskin. Riskin proposed a "grid" of mediator orientations comprised of what came to be known as "facilitative mediation" and "evaluative mediation." A more recent addition to the grid-and one that is almost universally recognized as a distinct model-is "transformative mediation." These three models are so embedded in the literature of mediation that they have been called "the big three."

This Article will survey these issues in three parts. First, it will offer an overview of mediation models not so much with a view to assessing which is the "best," but, rather, with a view to examining what assumptions about time and resources are embedded within each. The Article will offer an overview of mediation as practiced in a binary universe: that of private mediation and that of court-annexed mediation. The Article will also examine the dayto-day life of low-income litigants, and how their lives call into question bedrock assumptions about mediation. The Article then comes full circle and returns to models of mediation. This time, however, the examination will be in light of the impact that the inequality of resources has on what model is most likely to be followed when resources are limited. The Article concludes with recommendations for how the realities of mediation "on the ground" can inform best practices of mediation.

Disciplines

Dispute Resolution and Arbitration | Law | Legal Profession

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