Court Mediation and the Search for Justice Through Law

The trend toward court mediation is remarkable because our civil justice system has traditionally promised justice through law. The promise of mediation is different: Justice is derived, not through the operation of law, but through autonomy and self-determination. When mediation occurs in court, significant policy questions arise: What happens to law? To justice?

Do they collapse in the experience of self-determination? If so, what then happens to the promise of justice through law, particularly where one or both of the parties are not represented by lawyers? These are the questions I address in this article. Part I of this Article traces the development of court mediation over the past twenty years.

Part II begins to explore the normative question of what role law should play in court mediation and presents two case studies from a court mediation project. These studies provide the framework for discussion in the remainder of the article. Part III considers the predominant positions concerning the relationship between law and mediation; particularly, criticism that law is excluded from the mediation process. Part III also discusses the merits of including law in the mediation process.

Part IV calls for greater understanding of the meaning of justice in court mediation.