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70 S.M.U. L. Rev. 721 (2017)
Do You Believe in Magic: Self-Determination and Procedural Justice Meet Inequality in Court-Connected Mediation

handle is hein.journals/smulr70 and id is 741 raw text is: Do You BELIEVE IN MAGIC?: SELF-DETERMINATION AND PROCEDURAL JUSTICE MEET INEQUALITY IN COURT- CONNECTED MEDIATION Nancy A. Welsh* ABSTRACT Proponents of the contemporary mediation movement promised that parties would be able to exercise self-determination as they participated in mediation. When courts began to mandate the use of mediation, commen- tators raised doubts about the vitality of self-determination. Though these commentators also suggested a wide variety of reforms, few of their pro- posals have gained widespread adoption in the courts. Ensuring the procedural justice of mediation represents another means to ensure self-determination. If mediation provides parties with the oppor- tunity to exercise voice, helps them demonstrate that they have considered what each other had to say, and treats them in an even-handed and digni- fied manner, it is more likely that the parties will share information that will lead to a result that actually represents the exercise of their self- determination. Recent research, however, counsels that status affects procedural justice perceptions, voice is not always productive, and parties who are marginal- ized or lower status may neither expect nor desire to exercise voice. Fur- ther, research indicates that even those parties in mediation who value voice may not value participating in the back-and-forth or bargaining pro- cess that is required to arrive an agreement. After reviewing this and other research, the Article proposes the follow- ing reforms to enhance the likelihood that mediation will provide all parties with voice, trustworthy consideration and real, substantive self-determina- tion: increasing the inclusivity of the pool of mediators; training all mediators to acknowledge and address implicit bias; training mediators to engage in pre-mediation caucusing that focuses on developing trust; institu- tionalizing systems for feedback and quality assurance; training mediators to model reflective listening; adopting online technology that provides par- ties with pre-mediation information they need to engage in informed deci- * Professor of Law, Texas A&M University School of Law. I thank Michael Green for inviting me to participate in this symposium, Richard Delgado for his inspiration for the symposium, and Roselle Wissler for her comments on an earlier draft of this Article. Any error or oversight is mine. 721

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