Back to First Principles: Why We Mediate Carrie Menkel-Meadow Chancellor’s Professor of Law, University of California, Irvine, Author, Dispute Resolution: Beyond the Adversarial Model (Wolters/Kluwer, 2011)

 “Conflicts are created and sustained by human beings. They can be ended by human beings.”  - George Mitchell “There is no intractable problem” - Desmond Tutu Summum ius. Summa iniuria. (The strictest following of the law can lead to the greatest injustice). -- Marcus Tullius Cicero

 1. Facilitating dispute/conflict resolution to help parties reach “better” solutions  2. Fostering better communication between people  3. Ensuring that outcomes are tailored to parties needs (and not just “interests”)  4. Party participation in own fate- consensual dispute resolution  5. Preserving, repairing or appropriately ending relationships

 1. Parties desire control of dispute process  2.Parties desire control of dispute outcome  3. Greater satisfaction with or compliance with agreed to solutions  4. More efficient process (time or cost savings)  5. Courts’ desire to reduce litigation or dockets  6. Focus on the possibility of the future  7. More creative solutions  8. New norm creation

 1. Care for the parties  2. Care for larger community  3. Ability to listen  4. Ability to communicate  5. Ability to facilitate negotiation of others  6. Ability to structure process  7. Ability to solve and help other people solve problems

 1. Psychology  2. Social Work  3. Law  4. Education  5. Accounting  6. Engineering/Construction/Architecture  7. Medicine/Nursing

 1. Religion  2. Labour  3. Community  4. Family  5. Civil law  6. Criminal law  7. Restorative Justice  8. International

 1. Professional “turf” – lawyers, arbitrators, economists, psychologists  2. Principled-need for “public” not private justice (Dame Genn –Hamlyn Lectures on Civil Justice and American “roots” of argument)  3. Fairness and equality in the process  4. Quality control?  5. “Settlement” vs. “Justice” (law enforcement)  6. Too much focus on future—what about past?

 1. Broader, deeper solutions to problems  2. Party voice and choice  3. Process pluralism (one size does not fit all)  4. Put parties in better position than before or in relation to other dispute resolution choices  5. “Limited remedial imagination” of courts, arbitrations and other binary institutions  6. Possibility of principle, bargaining and emotion in one room (multiple discourses simultaneously)  7. Enhance/increase human understanding of the “other”  8. Justice and Peace together

 “The skillful management of conflicts [is] among the highest of human skills.”  --- Stuart Hampshire, Justice is Conflict, at 35  (2000) The Tanner Lectures