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Abstract

Mediation is enthusiastically promoted as a vehicle for providing access to justice. This is as true in developing countries as it is in the United States. For individuals, mediation promises autonomy, self-determination and empowerment; for courts, there is the lure of procedural and administrative reforms—reduced dockets and greater efficiencies. Unburdened with formal discovery, evidentiary and procedural rules, pleadings, and motions, mediation is thought to generate access to justice at a faster pace than litigation. Commentators sing its praises while bemoaning its underutilization. I argue that claims about mediation’s ability to provide access to justice should be more modest because mediation falls short on its original promise of being a voluntary process based on party self-determination. In what I label a “withering away of consent,” courts and legislatures have pushed hard to sell mediation as an access to justice opportunity, often without regard for the consensual nature of the process. Too often, this hard sell has negative consequences for individuals with disadvantaged economic status who navigate the legal system on their own. These are the self-represented parties who seek access to justice in the formal judicial system but then find themselves in mediation, a different, informal system than what has been institutionalized in the courts. The extent to which they receive justice from either system is unclear.

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