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adr and applicable law generate, create none none for none qr code Mediation is not about fair none none resolution42 of disputes.43 The function of mediation is to attempt to analyse the parties interests underlying their position and to reformulate their preferences in such a way that the dispute is removed. Therefore mediation is about removing disputes, not about solving them fairly.

In the example of the children ghting about an orange, it is irrelevant whether it is fair or not that the child who is allowed to eat the last orange s esh has already consumed three oranges, whilst the child who wants to bake the cake has eaten none. The fact that the child baking the cake merely wishes to use the rind has completely removed the dispute. Hence fairness in mediation is limited to enabling communication between the parties and reformulating positions, and does not involve designing procedures to enable the fair resolution of disputes.

However, mediation becomes unfair if one party feels pressurised in accepting a compromise that does not re ect that party s interests nor that party s rights and entitlements.44 This is more likely to occur if adjudication is not available or accessible because of the costs of adjudication discussed above. In other words, a lack of accessible and affordable adjudication affects the fairness of mediation.

Hence access to adjudication guards against unfairness in mediation. Furthermore, mediation does not always lead to a settlement, for two reasons. Firstly, as has just been discussed, mediation only works if the circumstances of the case lend themselves to a compromise.

45 Secondly, as has been discussed in the previous section, mediation is voluntary, not coercive, and for this reason it cannot provide an avenue of redress for all cases since a party can terminate the process at any stage. In other words, mediation does not obviate the need for binding adjudication in some cases..

Web application framework 43 44 45. It has been argued above tha none none t the purpose of mediation is to remove the dispute between the parties rather than to solve it fairly. This purpose can be jeopardised if a mediator is biased, for example. In fact, neutrality of the mediator is a value asserted but rarely measured pointed out by S.

Cobb and J. Rifkin, Practice and Paradox: Deconstructing Neutrality in Mediation (1991) 16 Law and Social Inquiry 25 63, 39. There are other due process issues such as accountability and con dentiality; see P.

Robinson, Centuries of Contract Common Law Can t Be All Wrong [2003] Journal of Dispute Resolution 135 73, 164; see also US Uniform Mediation Act 2001, 6, and EU Mediation Directive 2008/52/EC of 21 May 2008, OJ L136/3 of 24 May 2008 Art. 7. However, as this book focuses on arbitration, these issues are not discussed here.

Menkel-Meadow, Toward Another View of Legal Negotiation , 816, and Fuller, Mediation , 307 8. Vidmar, Procedural Justice and Alternative Dispute Resolution , 124; Galligan, Due Process and Fair Procedures, 274 9; O. Fiss, Against Settlement , 1076 8.

Galligan, Due Process and Fair Procedures, 274 6.. cross-border internet dispute resolution For these reasons, in this a none for none rgument only arbitration is regarded as a true alternative to litigation. In conclusion, the argument advanced here is that mediation should be provided in conjunction with adjudication, rather than as an alternative to adjudication.46 Mediation should be attempted before adjudication (unless it is obvious that it will fail).

As a preliminary process, it has a very important and useful ltering function. It lters out those disputes that lend themselves to a compromise, removing those disputes and thereby making adjudication unnecessary. However, it is crucial that adjudication is available and accessible for those disputes not lending themselves to compromise.

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