MEDIATION AND POST-ELECTION LITIGATION particularly in cases in which it is difficult to predict the litigated outcome. But self-determination is a tricky concept in election disputes (and indeed in any mediated public dispute). Who is the "self' being determined in an election dispute? Is it the candidate? The party? The national party? The state party? The candidate's supporters?3 7 The whole project of democracy is a form of self-determination: the right of the electorate to determine their representatives. Self-determination is quite difficult in the election context. 38 An intimately related challenge to be explored in greater detail below involves the scope of parties' authority to settle an election dispute. Suppose in a recount contest the two parties agree in mediation that a new election should be administered. Do the parties have the power to mandate this remedy through a mediated agreement? In certain instances when courts have ordered new elections they have undertaken to impose this remedy under dubious statutory authority.39 What exactly is the scope of parties' authority to settle post-election disputes? Mediated agreements have the force of a contract, but can a court enforce such an agreement?40 An additional hurdle to using mediation in election disputes is the problem of choosing a mediator. Is it possible to find a truly "neutral" person in the heat of a political battle?41 Professor Edward Foley's elaborate scheme 37 For an interesting discussion of stakeholders in election disputes, see David Kovick & John Hardin Young, ADR Mechanisms, in GUIDELINES FOR UNDERSTANDING, ADJUDICATING, AND RESOLVING DISPUTES IN ELECTIONS 227, 245-246 (Chad Vickery available at ed., 2011 ), http://www. ifes .org/-/media/Files/Publications/Books/20 11 /GUARD E_final__publication. pdf. 38 Note that the problem of self-determination is inherent in many if not most public disputes because by definition, a public dispute has an impact on and involves a diverse array of parties in interest. See SUSAN L. CARPENTER & W.J.D. KENNEDY, MANAGING PUBLIC DISPUTES: A PRACTICAL GUIDE TO HANDLING CONFLICT AND REACHING AGREEMENTS 5 (1988). 39 Huefner, supra note 24, at n.ll2 (See, e.g., Gunaji v. Macias, 31 P.3d 1008, 1012, 1016-18 (N.M. 2001) (creating an equitable remedy of partial revote, in contrast to code requirement of disregarding the entire precinct); State ex rei. Olson v. Bakken, 329 N.W.2d 575, 579-82 (N.D. 1983) (approving the equitable remedy of partial special election for an identified set of voters whose votes were not counted). 40 Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases}, 83 GEO. L.J. 2663 (1995) (discussing the need for "public adjudication" versus what the parties may themselves desire). 41 The mediator choice problem goes beyond the neutrality problem. In advocating for mediation, this article assumes that mediation will be done well, by a skilled mediator able to help the parties realize mediation's many benefits. As longtime public dispute mediator Howard Bellman points out, however, "even with surgery, you cannot always assume it will be done well." This mediator competency problem should be 333 HeinOnline -- 27 Ohio St. J. on Disp. Resol. 333 2012