Mediation and Social Justice: Risks and Opportunities*

Since the earliest days of the “modern mediation field” in the 1970s, there has been a continuous and contentious debate regarding whether the use of mediation poses a threat to the value of justice, at both the individual and social levels.1 Early supporters of the process claimed that it would expand “access to justice,” and thus provide not only administrative savings to the courts but important private benefits to disputants who might otherwise be excluded from the justice system.2 Critics were not so sanguine, however. Early critics included eminent scholars like Laura Nader and Owen Fiss, who claimed that the use of mediation and other “alternative dispute resolution” (“ADR”) mechanisms would undermine the achievement of justice, by “privatizing” dispute resolution and “disaggregating” claims of collective injustice.3 Indeed, the critics believed that policies favoring mediation and ADR were being put forward as intentional strategies to frustrate the justice gains that had begun to accumulate through legal and legislative action in the 1960s. Progressive advocacy and lobbying had begun to bring greater justice to racial minorities, women, consumers, poor people, and other groups of “have-nots.” Increased use of mediation for disputes involving such parties, in the critical view, constituted a covert way of reversing those gains,