Jacqueline M. Nolan-Haley
Fordham University School of Law
74 Wash. U. L. Q. 47 1996
Fordham Law Legal Studies Research Paper No. 2769000
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.
My inquiry focuses specifically on the role of law in mediation – how it affects the process, the outcome and, ultimately, the type of justice that parties achieve in court mediation. This subject has been widely noticed, but largely unexamined.