The Problem of Legitimacy in Mediation

Mediation is becoming more and more prominent as a mode of legal dispute resolution. In commercial contexts, mediation is widely viewed as an efficient and expedient way of resolving disputes without recourse to formal legal processes. In other contexts, too, mediation is widely viewed as the dispute resolution process of first resort. This conception of mediation as an alternative to the legal process is increasingly being enshrined in legislation. In Australia, for example, attendance at family mediation is now effectively a compulsory pre-filing requirement in family matters concerning children. This article seeks to draw attention to a fundamental theoretical problem raised by the increasing reliance on mediation as an alternative way of resolving legal disputes. Let us call it the problem of legitimacy in mediation. The problem is perhaps best exposed by way of a comparison with mainstream legal procedures. There is a long running debate in legal and political philosophy about the legitimacy of law as a means of settling social disputes. Law claims authority to provide a final resolution of such disputes. However, philosophers have long debated whether this claim to authority is justified.