Such a uniform commitment to procedural justice might seem natural for the courts. However, the procedural due process jurisprudence indicates that the courts' appreciation of procedural justice is unlikely to translate easily to processes in which the disputants, not the courts, are deemed to exercise control over outcomes. Given the current state of procedural due process jurisprudence, courts may lack both the desire and the ability to demand procedural justice in third party processes that are classified as "consensual." Ironically then, disputants' decision control, which is meaningful to mediation advocates and the courts but a rather hollow promise for disputants, may have the unfortunate effect of hindering the institutionalization of procedural justice in consensual, court-connected processes.
Nancy A. Welsh,
Disputants' Decision Control in Court-Connected Mediation: A Hollow Promise without Procedural Justice,
2002 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol2002/iss1/12