Do You Believe in Magic?: Self-Determination and Procedural Justice Meet Inequality in Court-Connected Mediation

Authors

Nancy Welsh, Texas A&M University School of LawFollow

Abstract

Proponents of the “contemporary mediation movement” promised that parties would be able to exercise self-determination as they participated in mediation. When courts began to mandate the use of mediation, commentators raised doubts about the vitality of self-determination. Though these commentators also suggested a wide variety of reforms, few of their proposals have gained widespread adoption in the courts.

Ensuring the procedural justice of mediation represents another means to ensure self-determination. If mediation provides parties with the opportunity to exercise voice, helps them demonstrate that they have considered what each other had to say, and treats them in an even-handed and dignified manner, it is more likely that the parties will share information that will lead to a result that actually represents the exercise of their self-determination.

Recent research, however, counsels that status affects procedural justice perceptions, voice is not always productive, and parties who are marginalized or lower status may neither expect nor desire to exercise voice. Further, research indicates that even those parties in mediation who value voice may not value participating in the back-and-forth or bargaining process that is required to arrive an agreement.

After reviewing this and other research, the Article proposes the following reforms to enhance the likelihood that mediation will provide all parties with voice, trustworthy consideration and real, substantive self-determination: increasing the inclusivity of the pool of mediators; training all mediators to acknowledge and address implicit bias; training mediators to engage in pre-mediation caucusing that focuses on developing trust; institutionalizing systems for feedback and quality assurance; training mediators to model reflective listening; adopting online technology that provides parties with pre-mediation information they need to engage in informed decision-making and the opportunity for self-analysis and self-reflection; and perhaps even identifying additional areas of mediation practice in which mediators would be required to take affirmative steps to avoid unconscionable unfairness or coercion.

Recommended Citation

Nancy Welsh, Do You Believe in Magic?: Self-Determination and Procedural Justice Meet Inequality in Court-Connected Mediation, 70 SMU L. Rev. 721 (2017)