Chapter

Mediation in the USA: Alternative Dispute Resolution between Legalism and Self-Determination

Rainer Kulms

in Mediation

Published in print November 2012 | ISBN: 9780199653485
Published online January 2013 | e-ISBN: 9780191758270 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199653485.003.0025
Mediation in the USA: Alternative Dispute Resolution between Legalism and Self-Determination

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In the United States, federal and state laws on mediation consist of a complex body of statutes, codes of civil procedure, local rules of court and common law rules of contract. Current practice strikes a balance between self-determination and court-ordered dispute settlement. As legalism crept in, California, Florida, Ohio (and, to a lesser extent, Texas) took the lead in regulating the relationship between mediation and the regular trial, incentives to mediate, confidentiality, enforcement of settlements and professional standards for mediators. This study reviews the substantive laws in leading US jurisdictions (including cost issues) and addresses specific mediation proceedings for bankruptcy and foreclosure, as well as in family, labour, criminal and administrative law. After four decades of alternative dispute resolution, the climate for mediation is changing again. Dispute resolution is shifting from the authoritative trial to alternative dispute settlement. Procedural justice has to compensate for abandoning the proverbial day in court.

Keywords: USA; mediation; alternative dispute resolution; California; Florida; Ohio; Texas; bankruptcy; foreclosure; civil procedure

Chapter.  38651 words. 

Subjects: Comparative Law

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