The Place of Court-Connected Mediation in a Democratic Justice System

Abstract

A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens as “justice.” The Article then highlights aspects of the changing picture of the American civil justice system – i.e., legislative delegation and judicial deference to adjudication by administrative agencies; the judicial embrace of and deference to decision-making by arbitrators; the marginalization of the jury in civil litigation – to suggest that today’s sprawling and multi-tiered structure is increasingly disengaged from its democratic roots. Finally, the Article examines the place of court-connected mediation in this evolution to determine whether it is part of the reinvigoration or further erosion of a democratic justice system. Ultimately, the Article makes three recommendations: 1) mediation advocates need to help courts overcome their current funding and staffing difficulties and regain an appropriate measure of self-respect for their unique role in enabling a democratic people to govern themselves; 2) courts should end their reliance on mandatory mediation or at least provide that the authority to mandate mediation should sunset after an appropriate period; and 3) courts should understand mediators as their agents – and provide for meaningful oversight that assures just resolution.