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Lon Fuller’s Influence on the Debate over Mediator Orientations
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Published:June 2021
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Lon Fuller was one of the most noted legal philosophers of the twentieth century. His 1971 article on mediation is consistent with his writings on the rule of law and the morality of law by identifying mediation’s unique character in the array of dispute resolution alternatives. As such, it makes a major contribution to the alternative dispute resolution (ADR) field by providing us with an important theoretical construct that offers us a way of thinking about the mediation alternative, and the mediator’s role. Indeed, Carrie Menkel-Meadow has referred to Fuller as “the jurisprude of ADR” (Menkel-Meadow, p. 4).
This comment focuses on how Fuller’s article informs later conceptualizations of mediator orientations, particularly Fuller’s influence on traditional mediation models, namely, facilitative and evaluative mediation, as well as Bush and Folger’s development of transformative mediation theory.
When Fuller was writing in the early 1970s, mediation was widely used in the field of labor-management relations. Thus, he examines the functions that mediation can perform in the negotiation of a collective bargaining agreement. Arguably, that field is less bound by rules of law and may therefore be more conducive than today’s civil litigation model to having the parties eschew a rights-oriented approach. In this regard, he states that mediation assists the parties in creating their own norms during the mediation and “mediation is always … directed toward bringing about a more harmonious relationship between the parties” (p. 308). Despite considering mediation’s use in “marriage therapy,” undoubtedly Fuller would be surprised by the extensive use of mediation today in a wide variety of substantive contexts, particularly because he argues against its use in anything other than a dyadic dispute where the parties have a strong relationship (p. 330).
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