CONSIDERATIONS FOR MEDIATION AND ALTERNATIVE DISPUTE RESOLUTION FOR NORTH DAKOTA* LARRY SPAIN"'"' AND KRISTINE PARANICA ***
1.
WHAT IS MEDIATION?
Mediation has become the catch phrase for numerous alternative dispute resolution (ADR) pfQcesses, some .of which bear little resemblance to what purists might call mediation.! Mediation can be defined as: a process by which a third party neutral, whether one or more, acts as a facilitator to assist in the resolving of a dispute between two or more parties. It is a non-adversarial approach to conflict resolution where the parties cOmmnnicate directly. The role of the mediator is to facilitate communication between the parties, assist them on focusing on the real issues of the dispute and generate options for settlement. The goal of this process is that the parties themselves arrive at a mutnally acceptable resolution of the dispute.2 Other definitions offer a wider context for the actnal practice of mediation: Mediation is the intervention into a dispute or uegotiation by an acceptable, impartial, and neutral third party who has no authoritative decision-making power to assist disputing
* The authors would .like to dedicate this article to PrOfessor Michael Ahlen (September 16. 1943-January 4, 2000) who provided guidance and insight to the field of alternative dispute resolution through his teaching and collaboration at the University of North Dakota School of Law. in the state, and beyond. ** Larry Spain is currently an Associate Professor of Law at Texas Tech University School of Law. He was past Director of Clinical Education and Professor of Law at the University of North Dakota School of Law and past Chair of the Governing Board of the UND Conflict Resolution Center and a Mediator. He received his lD. tum laude from the Creighton University School of Law in 1976.
*** Kristine Paranica is the Director of the UND Conflict Resolution Center and Adjunct Professor of Law at the University of North Dakota School of Law. She is an Associate Member of the Institute for the Study of Conflict Transfonnation., a think-tank operating from Hofstra School of Law, N.Y. She received her J.D. from the University of North Dakota School of Law iri. 1991. Kristine and Larry would like to thank Jessica johnson Skaare, Burtness Research Assistant, for without her assistance this would still be a work in progress. 1. See JAY FOLBERG & ALISON T AYLOR, MEDIATION: A COMPREHENSIVE GUIDE TO REsOLVING CONFUCTS WITHOUT LmGATION 18 (1984) (listing ''persuasion, problem solving, consensus building, voting, negotiation, arbitration, and litigation" as other conflict resolution methods). 2. KIMBERLEE K. KOVACH, MEDIATION: PRlNCIPLES AND PRACTICE 17 (1994).
