Related to the problem of the false dichotomy is the formalist application of the either/or construct. If, for example, one adopts as a first premise the view that mediation is by definition non-evaluative, and then rigidly applies this premise to issues of appropriate mediator behavior, the result is a formalist system that permits mediators little or no leeway to depart from the non-evaluative style. This sort of regulatory regimen may satisfy the non-evaluative ethos of some mediation scholars, but it does so at the risk of becoming a rigid system that prevents mediators from taking practical actions most appropriate to the cases they mediate.
A formal regulatory regimen also has the uncomfortable air of tautology and self-fulfilling prophecy. For example, if as the first leg of a syllogism one posits that “all mediation is non-evaluative and facilitative only,” any situation of arguably evaluative or interventionist mediation becomes “non-mediation” or “improper mediation” when the syllogism is carried to conclusion. This not only results in an excessively narrow view of mediation, but also creates a regulatory regime that discourages flexible, hybrid approaches to dispute resolution. At its extreme, the “mediation is non-evaluative” mantra becomes an end in itself and loses sight of the ultimate goal of mediation or any other ADR technique: the efficient and just resolution of controversy. When the end instead becomes the preservation of a particular model of mediation (non-evaluative), attainment of this goal may overwhelm the more germane objective of just dispute resolution.
To attempt to illustrate my concerns and criticisms, I want to focus primarily on a hypothetical that touches on a major criticism of mediation: the possibility that it disserves women, weaker parties, and less assertive entities. I will also refer to two other hypothetical mediation situations set forth in the panel discussion: a landlord/tenant dispute and a personal injury tort action.
24 Fla. St. L. Rev. 949 (1997).
Stempel, Jeffrey W., "Beyond Formalism and False Dichotomies: The Need for Institutionalizing a Flexible Concept of the Mediator's Role" (1997). Scholarly Works. Paper 204.