Conflict Resolution|Mediation|Negotiation

Mediation and Substantive Justice — ABA DR V

Our final report from the 2014 Spring Meeting of the ABA Dispute Resolution Section addresses Ellen Waldman of Thomas Jefferson School of Law and Lola Akin Ojelabi of La Trobe University in Australia’s discussion of “Mediation Ethics and Substantive Justice: A View from Rawls’ Original Position.”

The question is whether mediation has anything to do with substantive justice.  Conventionally, mediators are trained to seek party agreement.  Some (but hardly all) mediators encourage the transformation of disputants into people who are somehow better or more capable of living with frustration.  The ideal among such a school of thought is that the mediator might serve as the impartial and neutral facilitator of others’ growth: self-determination, impartiality.  But even then, not of justice.

Indeed, nowhere in the ethical codes may one find the term “justice.”  In court, social ideas of fairness (as encapsulated in the law) govern outcomes; by contrast, outcomes in mediation are governed by perceived private benefit.  In that context, when we mediators observe a well-resourced and sophisticated defendant negotiating with a naïve and inexperienced claimant with an inadequate understanding of legal rights, do we do nothing?  Is it ever appropriate for a mediator to take steps in order to avoid an unjust outcome?  Or is our responsibility merely a procedural one – to ensure that everyone’s concerns are aired and their options are laid out?


Various ethical codes seldom mention substantive justice, but rather procedural justice – a fair process and a neutral facilitation.  In some cases (NMAS, IMI, EU Codes), mediators are permitted to assess fairness, legality or unconscionability of proposed agreement, and in some circumstances can withdraw.  But this is a kind of watchdog for enforceability — an obligation to ensure that agreements are not unlawful, and will be enforced.  In a way this means that the mediator is charged with the durability of the agreement.  But do the parties care about durability?  And is durability a euphemism for justice?  The speakers posed the question:  As economic and income inequality rises, power imbalances are more frequent and have greater consequences, thus imposing upon a facilitator some office of monitoring substantive, not just procedural, justice.

Enter John Rawls and the theory that justice is fairness.  If we need to constitute rules to guide an actor in society, we assume that all social stakeholders are equal at origin, and inequality (if any) develops later.  His two principles:  (1) each person has an equal right to basic liberties in a scheme equally available to others; and (2) inequalities are to be arranged so as to be to the greatest benefit of the least advantaged.  It is procedural justice through which fair and just outcomes are arrived.

The speakers outlined three “systems” that exemplify Rawls’ theory.  A “pure” system is gambling on a football game: every winner gets the same proportion of the amount betted as every other winner.  The “perfect” system is exemplified by a cake cut in equal portions according to the rule “you cut, I choose,” providing an incentive for – but not necessarily assuring — a high degree of fairness in the way the cake is actually cut.  An “imperfect” system is one that determined the outcome on the basis of interpreted facts – for example, a jury verdict at the end of criminal trial, a process by which there is no assurance of correct or fair outcomes.

The questions then are posed:  In which of these three categories does mediation fall? Isn’t the process of mediation susceptible to imperfections by virtue of error, subjectivity, and (most blatantly) power imbalance?  If fairness is what the parties ultimately decide it is, then the tether that is meant to relate the process of dispute resolution to notions of justice becomes frayed.  Irrespective of the procedure used, there are unfair outcomes, and there is nothing in the mediation procedure that inhibits the likelihood of those results.  Self-determination ceases to be a social virtue in an environment of power imbalance.

Say the presenters: “We are not asking mediators to become judges or impose their personal views on parties.  Neither are we asking mediators to steer parties to particular outcomes.”  But I think they are.  Justice as perceived by the small fish is different from justice as perceived by the large fish, and the presenters’ confidence that any of us can identify what is just and what is not is enviable.  And, in a diverse and pluralistic society, perhaps just a little bit dangerous?

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