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Mediation: Did We Get it Wrong?

Phillips, Barbara
June 4, 2015

Source: (1997) Willamette Law Review. 33: 649.

Mediation is unique among dispute resolution alternatives: it focuses on addressing the full range of issues the parties bring to the process. If one’s paradigm is the adversarial model, then mediation’s strengths appear to be weaknesses. Yet to understand mediation requires the paradigm of problem-solving in which mutual gain is desirable and possible through mutual effort. Barbara Phillips believes there is a place for both the adversarial and the problem-solving approaches. With all of this in mind, her purpose in this article is to show what is working and what is not working in dispute management. She urges courts and lawyers to develop a balanced, user-friendly, effective system of dispute management and resolution. Toward this end, Phillips looks at the rise of mediation; the changing world of litigation; justice, power, and balance; the construction industry’s experience with mediation; and challenges for courts with respect to mediation.


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