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Suppose It's Not True: Challenging Mediation Ideology
Hensler, Deborah R.. Journal of Dispute Resolution, Vol 2002, pp. 81-99, 2002
The article suggests that the idea that claimants prefer to resolve their conflicts through mediation instead of adjudication is based on questionable assumptions. The author refers to empirical studies affirming that litigants' satisfaction with the dispute resolution system is strongly dependent on their perception of procedural fairness. Regardless of how their cases are resolved, litigants feel more positive about the system when they believe the process is fair. Those studies state that perceptions of procedural fairness are higher for trial and non-binding arbitration than for less adversarial and adjudicative systems. Finally, the author recommends, among other things, that a court ADR program should assume that some civil disputes need to be tried and that trial should not be considered as a failure of the legal system.