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Hastings Law Journal

Abstract

Mediation plays an ever-increasing role in a variety of dispute contexts. Once primarily limited to labor or neighborhood conflicts, the mediation process is currently being used to resolve environmental, personal injury, securities, and bioethics disputes. This movement into new areas has sparked modifications and innovations in traditional mediation practice. In this Article, Professor Waldman argues that changes in mediation practice require a revamping of mediation theory. She argues that mediation encompasses three separate, but related, procedural models that can be distinguished by their divergent treatment of social norms. She terms these models "norm-generating," "norm-educating," and "normadvocating."

In the norm-generating model, the mediator invites the parties to create the norms which will guide their agreement. In norm-educating mediation, the mediator educates the parties about the social norms implicated by their dispute, but does not suggest or encourage their adoption. In the normadvocating model, the mediator informs the parties of relevant social norms, and also advocates for their inclusion in the parties' agreement. Professor Waldman suggests that recognition of these models will enhance efforts to construct meaningful professional standards and clarify, for both practitioners and clients, the different guises mediation assumes in different types of disputes.

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