The journey of mediation as a non-authoritative process into the court system has come full circle with one utterly different model emerging in contemporary times. As mentioned in the previous chapters, mediation has inspired hybrid judicial roles and settlement promotion and introduced consent as the foundation for many hybrid legal processes. Yet this hybridization has worked both ways, affecting mediation as well. Authority-based mediation is emerging as an advanced judicial process that generates public norms. This new sophisticated model for dealing with polycentric legal problems while preserving soft qualities of the process and keeping a narrow focus on a legal outcome is, in fact, a novel form of private adjudication. We describe this emergent form of mediation and its theoretical underpinnings.

This chapter introduces the vanishing trial phenomenon – the emphasis on settlement and plea bargains and the decline of the judicial verdict. This phenomenon began in common law systems and coincided with the rise of alternative dispute resolution (ADR). ADR has been promulgated through a variety of legal constructs, including national laws and transnational directives. However, to date, it is often the case that neither the normative values of adjudication nor the fundamental values of ADR (such as dialogue and relation building) prevail. In their stead, especially in common law countries, there is a drive for efficiency in both courts and mediation sessions. Efficiency has, to a large extent, become synonymous with settlement and the means by which settlement is reached receive little to no notice. Judges, in this setting, are expected to manage cases until they settle – though, as our research shows, some judges have more ambitious horizons for their role, lending new insights to the possible new trajectories. As methods to replace the judicial role are under experimentation, the value and place of the judicial role have reached a critical crossroads.