Authority-Based Mediation

Authors

Amos Gabrieli, Bar-Ilan University School of Law
Nourit Zimerman, Sapir Academic College School of Law
Michal Alberstein, Bar-Ilan University School of Law

Abstract

The paper describes and defines, for the first time, a unique mediation procedure-the authority-based mediation. This procedure was developed by one of the authors of this paper, and is characterized by handling highly complex conflicts in multi-party disputes, which are mostly referred to mediation by the court. Authoritybased mediation is conducted in an evaluative manner, combining in-depth legal discussion with a soft dialog that relates to emotions and interests and results in a settlement, usually following one extended mediation meeting.

Based on a combination of observations conducted in the mediation room and reflections of the mediator himself in relation to the development of the method and its components, the paper proposes two new aspects for understanding the unique role of authority within this method: the first, bringing the parties to a certain level of agreement and to a high level of commitment to ending the procedure with a settlement. The second, the formulation of a new concept of "relational authority," which is connected to the interpersonal interactions between the mediator and the parties; and between the parties themselves, as a derivative of the mediator's impact on the process.

Authority-based mediation is examined against two central current legal phenomena: the first, the institutionalization of existing mediation methods alongside their failure to bring about the resolution of many of the cases referred to them. The second is the vanishing trial phenomenon, and the increased involvement of judges in settling cases. We will argue that the unique characteristics of authority-based mediation create a new outlook regarding the relationship between mediation and adjudication, which differs both from standard mediation, and from the manner in which judges conduct settlement-oriented procedures under the shadow of their judicial authority.

Disciplines

Civil Rights and Discrimination | Constitutional Law | Dispute Resolution and Arbitration | Law

Recommended Citation

Amos Gabrieli, Nourit Zimerman & Michal Alberstein, Authority-Based Mediation, 20 Cardozo J. Conflict Resol. 1 (2018).
Available at: https://larc.cardozo.yu.edu/cjcr/vol20/iss1/4