Making deals in court-connected mediation: What’s justice got to do with it?

This Article argues that particularly within the context of the courts, mediation should be expected to deliver to disputants an experience of justice, more commonly referred to as procedural justice. This Article applies the research findings and theories from the procedural justice literature to the current evolution of court-connected mediation. The analysis reveals that some of the changes that streamline bargaining - the dominant participation of disputants' attorneys and the reduced role of the disputants, the eventual use of evaluative interventions, and the prevalence of monetary (noncreative) outcomes - are not necessarily inconsistent with procedural justice considerations. This Article argues that deal-making and procedural justice can co-exist and even complement each other. The analysis in this Article also shows, however, that other changes designed to ease legal negotiation - the de facto exclusion of disputants from mediation sessions, the abandonment or marginalization of initial joint sessions, and the early and aggressive use of legally evaluative interventions - are inconsistent with procedural justice.