Title

Mediation in the modern millennium

Publication Type

Report

Publication Date

1-2002

Abstract

In Australia we call it "Mediation", the French say "la mediation", and the Germans "die Mediation". The term is global, stemming from the Latin, mediatio'; the process universal, its inherent flexibility transcending historical and national legal norms and systemic differences. Indeed, forms of mediation can be traced back to sources in ancient Greece, the Bible, traditional communities in Asia and Africa, and to the fourteenth Century English 'Mediators of Questions'. Mediation, however, does not exist in a vacuum. It operates against a backdrop of national dispute management culture and institutional rules and regulations. Accordingly, it is nothing less than misleading to consider mediation as a universal process in isolation. Context determines how mediation is absorbed and applied by mediators, dispute managements professionals such as lawyers, and by clients. Context defines mediation and has a direct impact on how it is practised. National legal contexts reveal historically embedded systemic differences that can provide insights into the reasons behind the rapid expansion of mediation in common law jurisdictions, and the comparatively hesitant development of mediation in civil law jurisdictions. In this paper I consider the systemic patterns and trends in the mediation movements of common law and civil law jurisdictions, namely, Australia, Austria, Belgium, Canada, Denmark, England, Germany, the Netherlands, Scotland, South Africa, Switzerland, U.S.A. and Yugoslavia. The ideas and concepts introduced in this paper are drawn from the wealth of data and critical analysis contained in the collection of national reports on mediation presented to the XVIth Congress of the International Academy of Comparative Law at The University of Queensland, Brisbane in July 2002. Accordingly, it is not the aim of this essay to describe or summarise the role of mediation in each of the aforementioned countries. This task has been undertaken with a great deal more expertise than I could claim by the national rapporteurs in their submissions to the Congress. Their national reports are due to be published by the Otto-Schmidt Verlag in Germany in late 2002.

Discipline

Dispute Resolution and Arbitration

Research Areas

Dispute Resolution

Publisher

Volume of General Reports of the XVIth Congress of The International Academy of Comparative Law 2002, CD Rom publication

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