Magazine article Dispute Resolution Journal

Readers Respond

Magazine article Dispute Resolution Journal

Readers Respond

Article excerpt

Is Mediation ADR?

Carol J. Marshall ("Naming the Game: Should Mediation Wear the ADR Label?" May-July 2002) tells of overhearing a debate over whether mediation is ADR. One side says it isn't because the mediator cannot force a resolution and the issue of who is right and who is wrong is never determined. The other side says it is ADR because when the parties settle and agree not to pursue litigation, the matter is resolved. Marshall seems to think that mediation is not a form of ADR because "one could reasonably infer from the word 'resolution' that the issues in dispute will be in some way determined ... that the differences between the parties will be cleared up; or that answers to critical factual or legal questions will be found." Although I agree with Marshall that more education is needed about mediation, I don't agree that mediation is not a form of ADR. Those who believe that misapprehend a fundamental point-there are "resolutions" and then there are "resolutions." One dictionary definition of the term "resolution" is "the act or process of resolving something or breaking it up into its constituent parts or elements." While the mediator is not empowered to make a decision, a decision nonetheless is made by the parties to put their dispute to rest. This is a part or an element of the dispute that is resolved in mediation.

Those who think mediation is not ADR are looking at the process only through the prism of rightsbased and power-based resolutions. But a resolution can be based on the parties' needs and interests. …

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