Originally from Dispute Resolution Journal

In the following article, Carol Marshall asks if mediation has been misclassified as a form of alternative dispute resolution and, if so, what, if anything, should be done about it?

During a break in the settlement conference I was conducting at Superior Court recently, I was pacing back and forth in the chilly, marble hallway outside our meeting room, trying to come up with a creative way to resolve the case. As I plodded along from one end of the short corridor to the other, retracing my steps again and again and, no doubt, muttering to myself, I chanced to overhear bits of a conversation between the only other two people in the passage way at the time.

One of them was a rather elderly gentleman. I noticed him immediately because he was wearing a wonderful multicolored woolen scarf which stood out like a beacon in the otherwise gloomy interior. The other individual was a man young enough to be his grandson, whose boyish features, I concluded, definitely resembled those of the older man. I also noticed that the younger man was dressed far more conservatively than his companion. In addition to the interesting scarf, the older man also sported an unusual canvas briefcase which hung from a wide strap worn diagonally across his chest.

I speculated, somewhat wildly, that the bearer of that scarf and bag must be an artist of some kind, that the two men were probably family members involved in another settlement conference in progress that morning, and that, like me, they were on a break from those proceedings.

When I first passed these two men, they were seated on a long wooden bench, bent conspiratorially toward one another and speaking in subdued tones. The loud whirring noises which frequently emanated from a nearby elevator shaft made it difficult to hear much of what the two men were discussing. From the little I could hear of their conversation, I was surprised to learn that they were discussing ADR, and, in particular, the differences between arbitration and mediation.