Abstract

BEYOND FORMALISM AND FALSE DICHOTOMIES: THE NEED FOR INSTITUTIONALIZING A FLEXIBLE CONCEPT OF THE MEDIATOR'S ROLE

JEFFREY W. STEMPEL

Copyright 1997 Florida State University Law Review

This Article discusses the issues that continue to rage concerning the proper scope and process of mediation. The Article defends the evaluative aspects of mediation and questions the notion that "good" mediation must fit the facilitative model. The Article does not advocate evaluative mediation, but rather endorses flexible mediation that permits judicious use of evaluative techniques. The state errs when it mandates an excessively formal version of the facilitative model, one that in some cases may institutionalize unfairness. The Article concludes that state law and policy should celebrate a more eclectic model of good mediation and, in appropriate cases, provide a meaningful possibility of reviewing mediated outcomes for fairness.

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