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Participation Standards in Mandatory Mediation Statutes: 'You Can Lead a Horse to Water'

Winston, David S.. Ohio State Journal on Dispute Resolution, Jan. 1, 1996

The author explains that mandatory mediation statutes do maintain the voluntary nature of the mediation process in general, but problems exist with respect to guaranteeing quality participation from the disputants. This article describes the advantages that mandatory mediation statutes can provide for disputants and the legal system; examines two cases that illustrate the problems of unclear participation standards in these statutes; discusses the amorphous terms of "good faith" and "meaningful participation", which are often used in mandatory mediation statutes; and suggests a more objective standard of participation. The proposed objective standard would require the parties to attend the mediation with settlement authority and to submit a letter to the opposing party and the neutral outlining their position on each issue in dispute.

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