Mediation and the Constitution - Chapter 65 - AAA Handbook on Mediation - 2nd Edition

MEDIATION AND THE CONSTITUTION

Jay W. Stein

I. Introduction

The inspiration for this paper was a conversation between the author and consumer advocate Ralph Nader at a legislative committee meeting on tort reform. Nader’s comments to the assembled lawmakers and other citizens left some of them thinking that he believed one may question the constitutionality of mediation.

 

II. Constitutionality of Mediation

“Supreme Court to Rule on Constitutionality of Mediation.” That was the news headline my fantasy raised after a conversation with Ralph Nader. The noted trial lawyer and consumer advocate had appeared at a state legislative hearing on a tort reform bill. He criticized several items, including proposed ceilings on the dollar amount which courts could order a defendant to pay in a case of personal injury or other wrongful act. One of Nader’s remarks led several members of his audience to believe that he had serious reservations about the propriety of mediating disputes and perhaps about other alternative dispute resolution (ADR) procedures. Afterward I asked him whether he opposed or favored mediation. His immediate answer: “I can accept it, but not if it is unconstitutional.”

 

In studying and discussing mediation and ADR for many years, I had never considered a constitutionality question. Nor have I encountered colleagues who gave it any thought. Mediation is part of a growing...