Marie A. Failinger
Hamline University – School of Law
University of Michigan Journal of Law Reform, Vol. 47, p. 359 (2014 Forthcoming)
The American common law system should adopt court-connected mandatory mediation as a parallel system of justice for some cases that are currently not justiciable, such as wrongs caused by constitutionally protected behavior. As evidence that such a system is practical, this article describes systemic and ethical parallels between court-connected mediation and the rise of the equity courts in medieval England, demonstrating that there are no insurmountable practical objections to the creation of «mediation-only» causes of action. The article then explores the constitutional concerns surrounding the idea of «mandatory mediation-only» causes of action, using constitutional hate speech and invasion of privacy cases to test the validity of these concerns.