Making Deals in Court-Connected Mediation: What’s Justice Got to Do With It?

Document Type

Book Section

Publication Date

8-2025

ISBN

9780197784518

DOI

10.1093/oso/9780197784518.003.0026

Abstract

This article discusses the disconnect between mediation’s founding principles and how it is practiced in legal settings. Mediation was originally introduced as an alternative to the legal system, allowing disputants to negotiate resolutions based on their interests rather than legal norms. However, as court-connected mediation has become institutionalized, it has grown to resemble traditional legal negotiations, dominated by attorneys, evaluative interventions, and monetary settlements. This evolution raises concerns about whether mediation is fulfilling its broader purpose beyond mere deal-making. This article argues that court-connected mediation should incorporate principles of procedural justice to ensure that disputants experience fairness, dignity, and meaningful participation. Research on procedural justice reveals that disputants value opportunities to tell their stories, influence outcomes, and be treated with respect, which, in turn, affects their perceptions of fairness, compliance with outcomes, and trust in the judicial system. While some changes in mediation, such as attorney participation and evaluative interventions, may enhance procedural justice, others—such as sidelining disputants and bypassing joint sessions—undermine it. The article applies procedural justice theories to mediation’s current trajectory, demonstrating that balancing bargaining efficiency with procedural justice is essential to maintaining public confidence in court-connected mediation. Without deliberate choices to preserve procedural justice, mediation risks devolving into just another legal bargaining session, eroding its legitimacy and effectiveness. The article concludes by recommending strategies for ensuring that mediation serves both dispute resolution and justice, reinforcing its role as a meaningful alternative within the judicial system.

First Page

149

Last Page

156

Num Pages

7

Publisher

Oxford University Press

Notes

This is an abridged version of a law review article published in Washington University Law Quarterly: Nancy A. Welsh, Making Deals in Court-Connected Mediation: What's Justice Got to Do With It?, 79 Wash. U.L.Q. 787 (2001). Available at: https://scholarship.law.tamu.edu/facscholar/945

Editor

Art Hinshaw, Andrea Kupfer Schneider, & Sarah Rudolph Cole

Book Title

Discussions in Dispute Resolution: The Coming of Age (2000-2009)

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