Mediation as an Alternative Source of Law

Abstract

Mediation as an Alternative Source of Law:

A co-authored 2003 article, "Delegation as a Source of Law", recognized the traditional sources of law to be legislation and precedent. It went further to analyze the decisions of bodies to which jurisdiction has been delegated. Could they be sources of law? It was held that arbitration may be a source of law; however, mediation is not.

The authors did not go as far as Austin to assert that law only derives its power from sovereign command. However, "law" was defined as an "institutionalized source of law". This resulted in an uncomfortable gap where mediation and private law are not considered to be "law" on the same footing as legislation and precedent.

Analyzing variable definitions of "law" will clarify how mediation does have a claim to be a source of law. Further, because mediation derives its power from individual command, mediation has a stronger claim as a truly "alternative" dispute resolution mechanism than many other ADR approaches. In mediation, the procedure is "alternative" to the adversarial system but, more importantly, the source of law is non-institutionalized. This is important for the jurisprudential debate and for full recognition of the transformative power of mediation in individual and cross-cultural disputes.

Philosophical Justice Foundations for ADR:

Numerous alternatives to the common law justice system have developed in the last 30 years. These include mediation, arbitration, therapeutic jurisprudence and many others. Each supplied its own missing piece of the justice puzzle without considering an overall desirable picture of justice. A “comprehensive law movement” then began to investigate commonalities and questioned how law could bring about positive changes while acknowledging values outside the legal system. The quest for common theoretical frameworks that are specific, guiding and inclusive continues.

Guiding theoretical foundations can be found in Aristotle’s and Plato’s theories of ethics, justice and the state; and in contemporary analyses of their theories. Their natural law approach seeks to: (1) address all parts of the individual (mental, emotional and physical); (2) establish healthy relationships between the person and community; (3) acquire deeper wisdom regarding virtues that will actualize the first two.

A theoretical foundation rooted in natural law virtue theory can demonstrate how each alternative dispute resolution system promotes elements of justice for the individuals involved in the particular dispute. Further, natural law virtue theory can show where those elements fit into a more comprehensive concept of justice that will inform further developments and brings more unity to them.