Abstract
Direct disputant participation is a vehicle for the delivery of fundamental attributes of mediation, such as self-determination; empowerment; and focus on the individual disputants. However, in court-connected mediation practice, disputants often rely upon a professional spokesperson rather than participating directly. This article examines lawyer attitudes and practices in relation to the direct participation of their clients in court-connected mediation. The lawyer perspective is compared to the traditional mediation perspective of direct disputant participation. That comparison provides some explanation for the nature of court-connected mediation practice. Some implications arising from the trends of disputant participation in court-connected mediation are considered.
Highlights
Mediation offers an opportunity to disputants to participate directly in the resolution of their own disputes. 1 According to the Australian National MediatorPractice Standards, ‘[t]he purpose of a mediation process is to maximise participants’ decision making.’[2]
I'm happy for them to speak about their experience of pain and the difference it's made to their life, but I discourage them speaking about how the accident happened, so issues that are really relevant to liability.[39]. These results suggest that most lawyers are cautious about direct disputant participation in mediation
The empirical research outlined in this article has demonstrated that lawyers do not tend to perceive that the lack of direct disputant participation in court-connected mediation is problematic
Summary
Direct disputant participation is a vehicle for the delivery of fundamental attributes of mediation, such as self-determination; empowerment; and focus on the individual disputants. In court-connected mediation practice, disputants often rely upon a professional spokesperson rather than participating directly. This article examines lawyer attitudes and practices in relation to the direct participation of their clients in court-connected mediation. The lawyer perspective is compared to the traditional mediation perspective of direct disputant participation. That comparison provides some explanation for the nature of court-connected mediation practice. Some implications arising from the trends of disputant participation in court-connected mediation are considered
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