| This dissertation is concerned with mediation as an alternative model for settling civil disputes traditionally resolved through adjudicative processes. As litigation increased exponentially throughout the 20th century, the corresponding burdens on court systems led to huge increases in the costs and delay associated with having one's "day in court". As a result, judicial institutions have relied increasingly upon mediation as a means of resolving claims and improving judicial case management efficiency.;As the incidence of court-connected mediation programs continues to expand throughout North America, there is a pressing need to review more carefully this alternative process, at the heart of which sits the mediator. This dissertation applies classical power theory to a consideration of the power which the mediator brings to the mediation process, claiming that such power is, in fact, greater than that which is held by any of the participating disputants or their advocates. This study investigates the way in which mediators perceive of that power and, reportedly, use it in their mediation sessions. Of particular concern is the exercise of power in a court-connected mediation model which arguably places significant pressure on the participant mediators to achieve high rates of settlement, regardless of the unique interests of the disputants which might or might not be consistent with such settlement objectives.;Using an application of grounded theory called phenomenography , this exploratory qualitative study is based upon interviews held with 17 mediators who were participants in Ontario's Mandatory Mediation Program at the time of the study. Their conceptions were analysed surrounding two major themes: the process of mediation and the role of mediator power. As a result of the phenomenographic inquiry and analysis, three categorical theories of mediation have been proposed. The findings of this analysis suggest that mediators express a significant self-interest in achieving settlement in those cases which they mediate in the mandatory scheme. Often, they use a number of powerful process interventions and controls to achieve that settlement. While this research begins to fill a gap in the literature surrounding mediator perceptions, it is only a beginning. The final chapter of this dissertation includes suggestions for further research. |
