I have sense we’re coming back to the questions we started with in the foundation of ADR some three decades ago, but doing so from a different angle. As TS Eliot puts it in “Little Gidding” – the fourth of his “Four Quartets”:
We shall not cease from exploration
And the end of all our exploring
Will be to arrive where we started
And know the place for the first time.
Where we started out was – in part at least – with a concern about access to justice, the relative inaccessibility of the courts and so on. These issues will be very familiar to people in the mediation field.
The critical response to the development of mediation and informal justice was, at the same time, to question whether the ‘sidelining’ of disputants into mediation was in fact a marginalising of some disputants, the creation of second class justice. These and other critical issues – raised most strongly by Richard Abel and co-authors in The Politics of Informal Justice – remain relevant today, despite the rapid growth and mainstreaming of mediation.
The reason I come back to this question of access to justice is partly because of the success of mediation in its shift from the marginal and alternative to the mainstream and orthodox. One feature of this shift in many jurisdictions is the move from seeing mediation as the resource for community disputes, or for the ‘lower value’ disputes which don’t justify the cost of going to court, to seeing it now as the paradigmatic form of dispute resolution for commercial and high value disputes. There’s an irony in this: at the outset, the critical concern was that the courts were being ‘reserved’ for the important cases while the others were shunted off to mediation; and now, as mediation’s practical value (and cost-saving virtues) are recognised, those cases that would have gone to court are now increasingly dealt with in mediation.
More than this, one mark of the success of mediation is in the degree of legislative and judicial support for the process, so much so that we see the range of court-linked, and court-mandated mediation, judicial mediation, and the hybrids of pre-trial and settlement conferences – on which opinion may be divided as to whether it’s really mediation.
But now the question is asked: given the enthusiasm for mediation, ranging from high-level judicial promotion through public speeches through to judicial pressure on parties to go to mediation rather than to the courts, is there a risk of a denial of access to justice if the pressure and expectation is to go to mediation?
The question always was asked as to whether mediation was justice or “merely” settlement: observers of the legal process ranging from the more intemperate arguments of Owen Fiss’s paper “Against Settlement” (93 Yale Law J, 1073 ) to David Luban’s concern about the erosion of public rules and norms with the rise of private justice (“Settlements and the Erosion of the Public Realm,” 83 Geo L.J. 2619 ) and Michael Moffitt’s more recent “Three Things to Be Against (‘Settlement’ Not Included)”, Fordham L Rev, (2009: pre-publication copy) have kept alive the question as to the relationship between private settlement and public justice.
This has been brought to my attention again in a recent web-based comment by Edwards, Angell, Palmer and Dodge: http://www.insurereinsure.com/files/upload/comlitaug09_mediation.html – in which the writer asks
“whether the increasing pressure on litigants to mediate could result in the limitation of access to justice, thereby eroding the very fabric of our civil justice system and impinging upon our humans rights.”
My thanks to my colleague Locknie Hsu for bringing this to my attention.
So, we’re back to where we began, but by a different route: what began as a concern with the lack of access to justice, and with the promise of mediation as at least a form of justice through settlement and resolution, now becomes a question as to whether the success of mediation may involve a form of impaired access to justice – if by justice we mean, conventionally, access to the courts, to the rule-based resolution of disputes of rights and entitlements.