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UBC Theses and Dissertations
The professionalization of mediation Gallant, Mary Michelle
Abstract
Dispute resolution processes can be separated into two categories; the formal and the informal. Though the boundaries of these divisions are fluid, formal processes tend to embody a greater number of structural attributes than their less formal counterparts. The conventional adversarial process exemplifies the first type - a process characterized by a series of clearly defined legal rules and procedures - and the mediation process is representative of the second - a dispute resolution process which lacks any semblance of formal structure. The relationship between formal and informal methods of dispute processing is symbiotic. It is common to address criticisms of the one process by introducing features of the other. Attacks on adversarial justice culminate in the removal or softening of many of its formal features. Likewise, the response to complaints about mediation is the introduction of formal attributes. The recent growth of mediation has generated considerable criticism of this dispute processing venue and as anticipated one response is the suggestion that mediation be formalized. The formal feature being considered as a remedy is the creation a class of professional mediators. This thesis questions the value of formalizing the mediation process. Professionalization has the potential to nullify many of the benefits that mediation sought to bring to dispute resolution. The evidence intimates that professional regulation increases costs, suppresses diversity of occupational practice and inaugurates a form of inequality. These empirical manifestations suggest that when this institutional structure is superimposed onto the mediation process, there is a distinct possibility that professionalization will eliminate the advantages associated with informal dispute resolution and recreate many of the problems encountered with the adversarial justice process. Two primary candidates of professional regulation are being considered, licensure and certification. This thesis suggests that regardless of the regulatory scheme selected, much of the social utility of mediation is lost when this occupation is regulated. In the final analysis, the issue becomes how to achieve an appropriate equilibrium between formal and informal dispute resolution processes. Injecting a moderate amount of professionalism into the mediation process may achieve this balance but not without sacrificing some of the many advantages of informalism.
Item Metadata
Title |
The professionalization of mediation
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Creator | |
Publisher |
University of British Columbia
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Date Issued |
1996
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Description |
Dispute resolution processes can be separated into two categories; the formal and the informal.
Though the boundaries of these divisions are fluid, formal processes tend to embody a greater
number of structural attributes than their less formal counterparts. The conventional adversarial
process exemplifies the first type - a process characterized by a series of clearly defined legal
rules and procedures - and the mediation process is representative of the second - a dispute
resolution process which lacks any semblance of formal structure.
The relationship between formal and informal methods of dispute processing is symbiotic. It is
common to address criticisms of the one process by introducing features of the other. Attacks on
adversarial justice culminate in the removal or softening of many of its formal features.
Likewise, the response to complaints about mediation is the introduction of formal attributes.
The recent growth of mediation has generated considerable criticism of this dispute processing
venue and as anticipated one response is the suggestion that mediation be formalized. The
formal feature being considered as a remedy is the creation a class of professional mediators.
This thesis questions the value of formalizing the mediation process. Professionalization has the potential to nullify many of the benefits that mediation sought to bring to dispute resolution. The
evidence intimates that professional regulation increases costs, suppresses diversity of
occupational practice and inaugurates a form of inequality. These empirical manifestations
suggest that when this institutional structure is superimposed onto the mediation process, there is
a distinct possibility that professionalization will eliminate the advantages associated with
informal dispute resolution and recreate many of the problems encountered with the adversarial
justice process.
Two primary candidates of professional regulation are being considered, licensure and
certification. This thesis suggests that regardless of the regulatory scheme selected, much of the
social utility of mediation is lost when this occupation is regulated. In the final analysis, the
issue becomes how to achieve an appropriate equilibrium between formal and informal dispute
resolution processes. Injecting a moderate amount of professionalism into the mediation process
may achieve this balance but not without sacrificing some of the many advantages of
informalism.
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Extent |
6415576 bytes
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Genre | |
Type | |
File Format |
application/pdf
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Language |
eng
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Date Available |
2009-02-10
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Provider |
Vancouver : University of British Columbia Library
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Rights |
For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use.
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DOI |
10.14288/1.0077441
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URI | |
Degree | |
Program | |
Affiliation | |
Degree Grantor |
University of British Columbia
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Graduation Date |
1996-05
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Campus | |
Scholarly Level |
Graduate
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Aggregated Source Repository |
DSpace
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Item Media
Item Citations and Data
Rights
For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use.