1. Mediation as a Source of Law Dale Dewhurst Athabasca University New York – IALMH, 2009

2. Reconceiving an Old Question In a previous article (Dewhurst, Hampton, Shiner) we examined instances of delegation and the claim of mediation to be an independent and strictly institutionalized source of law. Our conclusion was that mediation’s claim to be a strictly institutionalized source of law is weak.

3. Previous Scope of the Issue Prior to writing the previous article it seemed to me that mediation was a source of law. Although I agreed with our conclusion, something seemed to be missing. Mediation can result in binding agreements between parties that the courts must enforce – so, not law?

4. Our Previous Definition of Law Our definition was: a law, or law-like rule, has a strictly institutionalized source just in case: i. the existence conditions of the law … are a function of the activities of a legal institution; ii. and the … sufficient justification … or local normative force, of the law, … derives entirely from … those existence conditions.

5. Proposed Thesis Initial Idea: Mediation has a strong claim to be a source of law under a broader definition of “law”. Revised Thesis: Under a broader definition of “law” mediation’s claim to be a source of law is still weak. However, this realization proves to be a unique benefit of mediation for the mediating parties.

6. Traditional Sources of Law Jurisprudence texts generally recognize only 2 - 4 sources of law: Statute. Precedent. Subordinate Legislation (sometimes). Custom (sometimes).

7. Authoritative Commands v. Private Law The “traditional” sources depend usually depend on the State for authority -- law as commands of the Sovereign. Custom is an exception but is also often rejected as a source of law. “Equity” was an exception but now within common law precedent. What about private law, contract law?

8. Other Concepts of Law “Law means the rules recognized and acted on in courts of justice.” (Patterson) “The courts are the interpreters and declarers of the law; the 'sources' of the law are therefore the sources to which the courts turn in order to determine what it is.” (James)

9. Levels of Sources of “Law” (Peczenik) Some sources are binding on the court – the court “must” follow them (e.g. legislation, precedent). Some sources are guiding only – the court “may” follow them (e.g. foreign precedents, legislative preparatory materials). Some sources are permitted – the court is “permitted” to follow them (e.g. legal literature).

10. A “New” Broader Definition of Source of Law Mediation exists as a source of law if: It generates laws, or law-like rules, that are binding on the court (the court “must” follow them); and, the sufficient justification or local normative force, of the law or law-like rule, derives entirely from mediation.

11. Tests for Mediation as a Source of Law So, mediation will be a “source of law” under the broader definition if: 1. It’s own practices, procedures and outcomes are binding on the parties & court (a high degree of authority). 2. Its outcomes cannot be easily avoided or limited by the regular court system (a high degree of finality). 3. It provides the normative structure justifying the outcome rather than drawing upon equitable or external sources of value (direct normative force).

12. Describing Mediation for the Purposes of the Tests Here, consider traditional mediation: Mediator as facilitator only. Mediator sets and enforces “ground rules”; but ultimate authority limited to ending mediation. Assists parties in communication and identifying values, needs and interests. No adjudicative or decision making power. Compromise encouraged but not forced.

13. Enforcement Through Contract Law If there is room for agreement, the mediator assists to ensure agreement is reached. The contract between the parties is enforceable; not the mediator’s determinations. Contractual terms form private law obligations particular to the parties.

14. Applying the Tests to Mediation and the Contracts Formed The “binding force” of the contract comes from the parties’ agreement not the mediator. The content of the agreement is determined by the parties not the mediator. The foundational values for the contract come from the parties not the mediator.

15. Mediation is Not a Source of Law Under the 3 Tests 1. The mediation is low in its degree of authority. 2. If agreement is reached it has a high degree of finality; but this is due to law of contract not the authority of the mediation. 3. Mediation’s normative force is low as it is transparent to equitable values and the parties’ own values.

16. Recognizing the Parties as the Source of Law So, as in the initial paper, mediation is not an institutional source of law. Nor, is mediation a source of law under the “new” broader definition. The parties are the source of law in mediation.

17. Avenues of Empowerment for the Parties The parties are only limited by general contract principles; however: Governments are limited by constitutions and precedent; Courts are limited by statute and precedent; Lower level governments are limited by the scope of the delegation.

18. Avenues of Empowerment for the Parties (Con’t) Within the limits of contract law: The courts “must” follow the terms of the contract; i.e. the parties have a high degree of authority. The terms of the contract cannot be easily avoided or limited by the regular court system; i.e. the parties assert a high degree of finality. The parties provide the normative structure justifying the outcome; i.e. the parties’ normative authority is high.

19. Conclusion Under a broader definition of “law” mediation’s claim to be a source of law is still weak. However, this is a unique benefit of mediation for the mediating parties because it places societal and institutional norms, values and procedure second to the parties’: autonomy, sense of procedural justice (voice, respect, explanation), and socio-cultural values.