Jonathan Crowe

Mediation is becoming more and more prominent as a mode of legal dispute resolution. The problem of legitimacy in mediation raises the question of why mediation is legitimate as a means of settling social disputes. This issue mirrors a long-running and deep-seated problem of legitimacy in law generally. We argue that the most promising strategy for justifying the normative force of law - namely, that law provides a mutually beneficial mechanism of social coordination - does not translate straightforwardly to the mediation context. A distinctive response to the problem of legitimacy in mediation is therefore needed. The consensual nature of mediation may render it legitimate in some contexts, but it is unlikely to do so in others. Our conclusion is threefold: the problem of legitimacy in mediation exists; it is distinct from the problem of legitimacy in law generally; and the problem is more intractable than is generally thought.

This paper discusses the implications of the ethical theory of Emmanuel Levinas for theoretical debates about legal obligation. I begin by examining the structure of moral reasoning in light of Levinas's account of ethics, looking particularly at the role of the third party (le tiers) in modifying Levinas's primary ethical structure of the face to face relation. I then argue that the primordial role of ethical experience in social discourse, as emphasised by Levinas, undermines theories, such as that of H. L. A. Hart, that propose a systematic distinction between legal and moral species of obligation.