Originally from Dispute Resolution Journal

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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. The article notes the widespread growth of mediation and explains why and how its constitutionality could possibly be in question. It then measures the generally accepted process of mediation according to specific statements in the Constitution.

“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.”