Mediation as a Source of Law

1. Mediation as aSource of Law Dale Dewhurst Athabasca University New York – IALMH, 2009

2. Reconceiving an Old Question • In a previous article (Dewhurst, Hampton, Shiner) we examined instances of delegation and the claim of mediation to be an independent and strictly institutionalized source of law. • Our conclusion was that mediation’s claim to be a strictly institutionalized source of law is weak.

3. Previous Scope of the Issue • Prior to writing the previous article it seemed to me that mediation was a source of law. • Although I agreed with our conclusion, something seemed to be missing. • Mediation can result in binding agreements between parties that the courts must enforce – so, not law?

4. Our Previous Definition of Law • Our definition was: a law, or law-like rule, has a strictly institutionalized source just in case: • i. the existence conditions of the law … are a function of the activities of a legal institution; • ii. and the … sufficient justification … or local normative force, of the law, … derives entirely from … those existence conditions.

5. Proposed Thesis • Initial Idea: Mediation has a strong claim to be a source of law under a broader definition of “law”. • Revised Thesis: Under a broader definition of “law” mediation’s claim to be a source of law is still weak. However, this realization proves to be a unique benefit of mediation for the mediating parties.

6. Traditional Sources of Law • Jurisprudence texts generally recognize only 2 - 4 sources of law: • Statute. • Precedent. • Subordinate Legislation (sometimes). • Custom (sometimes).

7. Authoritative Commandsv. Private Law • The “traditional” sources depend usually depend on the State for authority -- law as commands of the Sovereign. • Custom is an exception but is also often rejected as a source of law. • “Equity” was an exception but now within common law precedent. • What about private law, contract law?

8. Other Concepts of Law • “Law means the rules recognized and acted on in courts of justice.” (Patterson) • “The courts are the interpreters and declarers of the law; the 'sources' of the law are therefore the sources to which the courts turn in order to determine what it is.” (James)

9. Levels of Sources of “Law”(Peczenik) • Some sources are binding on the court – the court “must” follow them (e.g. legislation, precedent). • Some sources are guiding only – the court “may” follow them (e.g. foreign precedents, legislative preparatory materials). • Some sources are permitted – the court is “permitted” to follow them (e.g. legal literature).

10. A “New” Broader Definition of Source of Law • Mediation exists as a source of law if: • It generates laws, or law-like rules, that are binding on the court (the court “must” follow them); and, • the sufficient justification or local normative force, of the law or law-like rule, derives entirely from mediation.

11. Tests for Mediation as a Source of Law • So, mediation will be a “source of law” under the broader definition if: • 1. It’s own practices, procedures and outcomes are binding on the parties & court (a high degree of authority). • 2. Its outcomes cannot be easily avoided or limited by the regular court system (a high degree of finality). • 3. It provides the normative structure justifying the outcome rather than drawing upon equitable or external sources of value (direct normative force).

12. Describing Mediation for the Purposes of the Tests • Here, consider traditional mediation: • Mediator as facilitator only. • Mediator sets and enforces “ground rules”; but ultimate authority limited to ending mediation. • Assists parties in communication and identifying values, needs and interests. • No adjudicative or decision making power. • Compromise encouraged but not forced.

13. Enforcement Through Contract Law • If there is room for agreement, the mediator assists to ensure agreement is reached. • The contract between the parties is enforceable; not the mediator’s determinations. • Contractual terms form private law obligations particular to the parties.

14. Applying the Tests to Mediation and the Contracts Formed • The “binding force” of the contract comes from the parties’ agreement not the mediator. • The content of the agreement is determined by the parties not the mediator. • The foundational values for the contract come from the parties not the mediator.

15. Mediation is Not a Source of Law Under the 3 Tests • 1. The mediation is low in its degree of authority. • 2. If agreement is reached it has a high degree of finality; but this is due to law of contract not the authority of the mediation. • 3. Mediation’s normative force is low as it is transparent to equitable values and the parties’ own values.

16. Recognizing the Parties as the Source of Law • So, as in the initial paper, mediation is not an institutional source of law. • Nor, is mediation a source of law under the “new” broader definition. • The parties are the source of law in mediation.

17. Avenues of Empowerment for the Parties • The parties are only limited by general contract principles; however: • Governments are limited by constitutions and precedent; • Courts are limited by statute and precedent; • Lower level governments are limited by the scope of the delegation.

18. Avenues of Empowerment for the Parties (Con’t) • Within the limits of contract law: • The courts “must” follow the terms of the contract; i.e. the parties have a high degree of authority. • The terms of the contract cannot be easily avoided or limited by the regular court system; i.e. the parties assert a high degree of finality. • The parties provide the normative structure justifying the outcome; i.e. the parties’ normative authority is high.

19. Conclusion • Under a broader definition of “law” mediation’s claim to be a source of law is still weak. • However, this is a unique benefit of mediation for the mediating parties because it places societal and institutional norms, values and procedure second to the parties’: • autonomy, • sense of procedural justice (voice, respect, explanation), • and socio-cultural values.