Abstract

If some have conceptualized law as a culture of argument, then perhaps ADR is a culture of rhetoric. Judges facilitate rational argumentation during trials. Mediators and arbitrators sometimes seem to glory in their sophistic lineage. As the attractiveness of mediation increases, it is worth pausing to consider whether these perspectives on ADR are warranted. There is some truth to fears about potential abuse of power in mediation. Would the culture of argument improve it? Those engaged in "transformational mediation," I argue, can accommodate such concerns and facilitate understanding of the proper role of argumentation in dispute resolution processes.