Mediation as Anti-Social Behavior

Geoff Sharp, of Wellington, New Zealand (mediator blah . . . blah . . .), has provided a valuable service for the mediation community with his posting entitled "Justices Seek Justice, Not Peace." In it, he calls attention to a critical view of mediation not usually given much press in recent years. Geoff’s post focuses on Owen Fiss’s 1984 article, Against Settlement, 93 Yale L.J. 1073, in which the author suggests that the enthusiastic acceptance of ADR, particularly mediation, overemphasizes the role of the court system as a dispute resolution tribunal, to the detriment of its role as society’s primary instrument of justice. Implicit in Fiss’s argument is that litigants who choose to settle, rather than let justice run its course, often cheat society out of the ability to have the court system address and correct societal ills that go beyond the interests of the individual parties. See also, Don Ellinghausen, Jr., "Justice Trumps Peace: the Enduring Relevance of Owen Fiss’s Against Settlement," also referred to in Geoff’s post.

Putting aside for the moment the question of whether individual litigants should be asked to spend their own money to carry society’s banners into battle (presumably for the honor of the thing), one flaw I see in Fiss’s approach is that it seems to ignore the risk that the courts may get it wrong. Major societal controversies presented to the judiciary for resolution usually have passionate advocates on both sides. Convincing arguments are marshaled both for and against, and the outcome of such matters is usually far from certain. One example cited for the idea that settlement would have been bad for society is Brown v. Board of Education (Ellinghausen, pp 30-31); however, I daresay that for every Brown, there is a Dred Scott.