Exploring the Role of Mandatory Mediation in Civil Justice
In this article, I offer a framing of the debates around mandatory mediation that rest on the premise that a legitimate civil justice process depends on unhindered access to an adjudicative system, which must be recognized as a procedural right. This is a keystone of the rule of law, and a valid legal system that deserves the authority that it asserts is contingent on this. My central thesis is that requiring mediation (which is independent of the rule of law) before allowing full access to adjudication compromises the procedural rights of legal subjects, and the rule of law principle. Such a mandate is, therefore, an improper exercise of legal authority. This does not, however, mean that mediation cannot have significant value in enhancing the civil justice commitment to human dignity. The benefits that abound in mediation should be widely accessible, especially because mediation can (when it functions well) offer autonomous, empowered decision-making. The analyses that I offer here pave the road for determining, pragmatically, how mediation should be incorporated into civil justice systems, such that individuals can have legal claims adjudicated in a system that centralizes the rule of law and may also choose an equitable and well-structured mediation system that is responsive to concerns raised by critical race and feminist scholars about informal dispute resolution.
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