The Merger of Law and Mediation: Lessons from Equity Jurisprudence and Roscoe Pound

Abstract:     
This article examines Roscoe Pound's concerns with the decline of equity jurisprudence in the American legal system, suggesting that they resonate with those of modern ADR scholars who worry about the effects of blending settlement with adjudication and mediation with the law. It examines court-connected mediation with particular emphasis on the historic parallels between equity and mediation. Both equity and mediation offer a form of "individualized justice" unavailable in the official legal system, and each allow room for mercy in an otherwise rigid, rule-bound justice system. Yet, scholars question whether equity today is still equitable and whether institutionalized mediation offers anything that looks like justice. This article argues that if court-connected mediation is to offer alternatives to traditional rule-bound justice, it must return to its complementary role to litigation and adjudication.

Accepted Paper Series