Mediation—the process through which a third party neutral assists parties in reaching their own agreement—has achieved a prominence in our legal system that belies its youth. Earlier in the twentieth century, the use of mediation was limited almost entirely to small disputes (which did not justify the expense of litigation) and labor disputes (which required quick resolution in order to avoid costly strikes and shutdowns.) By contrast, mediation today is touted for disputes of all sizes and in all areas of the law, including probate, family, commercial lending and business, criminal, employment discrimination, environmental, legal malpractice, medical malpractice, and maritime law. Indeed, such is the enthusiasm for mediation, that one is hard pressed to find a legal area in which mediation is not actively encouraged. Despite such broad encouragement, its success varies widely in different fields of law. While in some areas of law it has achieved dominance, in others its development has been far slower. Two areas where this disparity is particularly puzzling are divorce and will contests.
In 1976, Professor Hans A. Linde published his pathbreaking paper, Due Process of Lawmaking. That article focused attention on a subject of subtlety and importance: To what extent should the processes by which laws are enacted affect their validity under seemingly substantive constitutional provisions like the First Amendment and the Equal Protection Clause?
In response to the September 11, 2001 terrorist attacks, the chorus of those arguing that international law cannot serve as an effective tool in the fight against terrorism has grown. In fact, one might say that September 11 has swelled the ranks of international relations realists, who view international law primarily as a cover for strategic interests and thereby as lacking any independent bite. According to this view, for the United States to comply with the letter of international law would be to don a straight-jacket that would hamper efforts to protect national and international security. Instead, because of the serious nature of the threat, ordinary rules should be bent, if acknowledged at all. This type of thinking has even spilled over into domestic law. Anyone who harps too much on the need for law at best is naive and at worst aids and abets terrorists.
This resurgent realism with respect to international law has taken several forms. Some have argued that the United States need not pay overly precise attention to international law in its military response to the attacks. Others have suggested that the detention of captured terrorism suspects is not, or should not be, governed by international law. And still others have suggested that the United States need not comply with the principles established under international law in prosecuting individual terrorists.