OHIO STATE JOURNAL ON DISPUTE RESOLUTION
(Vol. 27:2 2012]
A third way the conference call differed from mediation was Secretary
Ritchie's reliance on authoritative input. When the campaigns raised
concerns, Secretary Ritchie would often ask the AG's counsel to provide an
assessment of what the law dictated on the subject at issue. Likewise,
election administrators on the call also served an "expert" function. The
campaigns' assertions for certain changes to the process could have huge
implications for, for example, election official staff"mg demands. The voice
of election administrators in defining this process was therefore critical. In
some instances, particularly in the collaborative mediation model, 139
mediators rely on participating experts. But for the most part, traditional
mediation excludes such input.
A fourth way the conference call differed from traditional mediation was
the role of the public interest. A controversial question in mediation circles is
whether or not mediators should take the public interest into account when
mediating.140 Many believe that mediators, particularly those mediating large
public policy disputes, must keep the public interest in mind even when those
interests are not necessarily represented at the table. Arguably, Secretary
Ritchie performed this role on the call. Secretary Ritchie understood that an
important component of the process was integrity of the system and public
confidence. 14 1 With this understanding at the fore, he describes one of his
to mediation with authority to settle. For a review of cases in which inadequate authority
resulted in findings of bad faith, see Roger L. Carter, Oh, Ye of Little {Good] Faith:
Questions, Concerns and Commentary on Efforts to Regulate Participant Conduct in
Mediations, 2002 J. DISP. RESOL. 367, 385 {2002).
139 That said, it should be noted that in a relatively new form of ADR called
collaborative law, collaborative practitioners commonly bring in outside experts to assist
parties in crafting their agreement. See PAULINE H. TESLER, COLLABORATIVE LAW:
ACHIEVING EFFECTIVE RESOLUTION IN DIVORCE WITHOUT LITIGATION 111-14 (2d. 2008).
140 Carrie Menkel-Meadow, Professional Responsibility for Third-Party Neutrals,
II ALTERNATIVES TO HIGH COST LITIG. 129, 131 (1993) {asking whether, "mediators of
large public-policy disputes have any obligation to the public if there is no obvious
representation of public interests in a particular dispute?); see also Carol Izumi, Implicit
Bias and the Illusion of Mediator Neutrality, 34 WASH. U. J.L. & POL'Y 71, 82-83 (2010)
("For years, scholars and practitioners have questioned whether a mediator should be a
mere facilitator of party-initiated outcomes or should assertively prevent agreements that
are unfair or favor more powerful parties.").
141 Jocelyn Benson, in a fascinating book about the role of secretaries of state,
describes the various hats secretaries of state wear with regard to managing elections. In a
chapter entitled, "The Secretary as Voter Advocate," Benson outlines the various ways
secretaries of state advocate for the public interest: "[V]oters and sitting Secretaries must
form a partnership of collaboration and communication. In doing so, voters are able to
inform and bolster a Secretary's ability to voice their concerns and advocate on their
behalf." Most of the efforts she describes include election administration reform efforts,
360
HeinOnline -- 27 Ohio St. J. on Disp. Resol. 360 2012
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