Mediation falls under the heading “alternative dispute resolution” (ADR). Alternative to what? Litigation, of course. Yet the courts now frequently require ADR as a pre-trial part of the litigation process. The co-opting of ADR into litigation has changed it. For example, arbitration has become more formal, lengthier, and costlier – so much so that corporate counsel are moving away from it and toward mediation.Mediation too has changed. It once was asserted that lawyers and their competitive, evaluative ways had no place in “real” mediation, But today’s market is filled with evaluative retired jurists and their lawyer-mediator cousins, some of whom feature opinionated and aggressive arm-twisting as necessary and desirable “reality checking.” This is not necessarily better or worse than “classic” facilitative mediation, but it certainly is different.
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