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

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.

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Publication Details

Published
2025-08-21
DOI
https://doi.org/10.1093/oso/9780197784518.003.0026
Citations
36
Primary Topic
Dispute Resolution and Class Actions
Type
article
Field-Weighted Citation Impact
12.16
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article

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

Nancy A. Welsh
36 citations
Dispute Resolution and Class Actions
12.16
article

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

Nancy A. Welsh
article en
36 citations

Abstract

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.

Pennsylvania State University (US), Dickinson State University (US)
Peace, Justice and strong institutions
Openalex Percentile: Top 5%
Dispute Resolution and Class Actions
12.16
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