The American common law system should adopt court-connected mandatory mediation as a parallel system of justice for some cases that are currently not justiciable, such as wrongs caused by constitutionally protected behavior. As evidence that such a system is practical, this Article describes systemic and ethical parallels between court-connected mediation and the rise of the equity courts in medieval England, demonstrating that there are no insurmountable practical objections to the creation of “mediation-only” causes of action. The Article then explores the constitutional concerns surrounding the idea of “mandatory mediation-only” causes of action, using constitutional hate speech and invasion of privacy cases to test the validity of these concerns.
Marie A. Failinger,
Parallel Justice: Creating Causes of Action for Mandatory Mediation,
U. Mich. J. L. Reform
Available at: http://repository.law.umich.edu/mjlr/vol47/iss2/3