Mediation and the Art of Regulation

Abstract

In a political climate filled with talk of how to best regulate mediation, it is surprising that so little regulatory theory has been brought into the discussion. The aim of this paper is to provide a conceptual framework for informed debate in relation to the regulation of mediation. The framework comprises two parts. First, four international regulatory trends in mediation are introduced: the market-contract, self-regulatory, formal framework and formal legislative approaches. Against this background the second part deals with the specific content of regulatory provisions on mediation. The resulting framework is called the Mediation Mix, which brings form and content together and addresses the questions: What aspects of mediation are, or should be, regulated, and how? The Mediation Mix is useful for analysing regulation trends in a given jurisdiction, for comparing trends in different jurisdictions, countries and regions, and for planning regulation policy. Finally, it highlights how different types of regulation can address tensions thrown up by the eternal diversity–consistency debate in mediation.