16 Cardozo Journal of Conflict Resolution 779 (2014)
In this article, I examine the themes of self-determination, mediator neutrality, and party empowerment by exploring three separate topics: barnacles, aristocracy and truth denial.
The first topic, barnacles, refers to the surprising and myriad number of ways that mediation has fully integrated (insinuated) itself into the U.S. litigation system. Institutionalization, some might argue, is "beautiful;" indeed, widespread, systematic use of mediation is often offered evidence of success. But I want to explore a different perspective on the same development-how institutionalization leads to rule exploitation and spawns its own unique litigation ironies. The second topic, aristocracy, refers to the documentation and arguments I have made elsewhere in much greater detail regarding the considerable evidence of unjustified judicial deference to the opinions of class action mediators on settlement process and settlement quality. And, finally, truth denial. Even the most summary review of mediation texts reveals a stunningly consistent message about the nature of truth: "there ain't any."
Coben, James, "Barnacles, Aristocracy and Truth Denial: Three Not So Beautiful Aspects of Contemporary Mediation" (2014). Faculty Scholarship. 292.