Parallel Justice: Creating Causes of Action for Mandatory Mediation

Abstract

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.

Keywords: mediation, mediate, ethical, ethics, court-connected, equity courts, mandatory, non-justiciable, dispute resolution, ADR, alternative dispute resolution, conflict, constitutional litigation, restorative justice, cause of action, common law, arbitration

JEL Classification: D74, J52, K4, K41, K00