Mediation and Court Litigation: The Social Legitimacy of Underlying Fairness Discourses. Catherine Zwetkoff, 7, Bd du Rectorat Sart Tilman Faculty of Law 4000 Belgium
This paper is part of an on-going research which focuses on the feasibility of A.D.R. in environmental disputes in Belgium. After having identified at an earlier stage of the research some critical "rules" for the internal consistency of the Belgian mediation program, this social process is replaced in the past history of the relationships between the parties, the legal order structuring these relationships, the register of values defended by the parties, etc....This second stage of the research, focusing on the external conditions of the validity of the public discourse on mediation, is all the more relevant since mediated cases suggest that citizens involved in environmental conflicts of greater scope than neighborhood disputes prefer court litigation to the use of meditative art. The Belgian public discourse on mediation mobilizes some fairness criteria different from those activated in the conventional and court litigation approaches. Under what circumstances does the rationale of mediation fit to this kind of dispute? The justice discourses underlying mediation and court litigation are reviewed at the light of the distributive and procedural criteria mobilized by the population. They raise questions dealing with the relative social legitimacy of mediation as well as with the salience of procedural fairness when socially legitimate procedural criteria guiding mediation come to be inconsistent with distributive criteria better served by court litigation.
Research under EU Contract ENV4-CT96-0270.
Go to . . .