Fairness & Neutrality in Mediation


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What “fair” means depends the circumstances, relationships,
and culture of those involved.

Allen Brent smirked across the negotiating table at Sheila.

“You know, Ms. Baker, you haven’t got a snowball’s chance of winning. I’m authorized to offer you three months’ salary and a waiver of costs in return for complete dismissal, No more.”

“Three months! That’s unfair. Renee got a year! And she didn’t have my medical bills!”

“’I’m the company’s lawyer; It’s not my job to be fair to you, Ms. Baker.  And Ms. Carson’s case is irrelevant. Frankly, she makes a better witness. You’re overweight and you come off whiney. The jury won’t like you. And we know you need the money.  Take it, Ms. Baker.”

Sheila exhaled. You’re right, Mr. Brent. I do need the money. Badly.  But not so badly I’ll let myself be abused this way. You can keep your money.” She smiled. “Thanks for the tip about the jury.  I’ll work on that stuff with my lawyer. Have a nice day.” She left with Brent staring after her.


Fairness and the Disputants

The ultimatum game

Fairness
plays a huge part in any settlement effort, whether from the
perspective of the disputants or from the perspective of a mediating
neutral. Despite frequent counter-examples, people have a very strong
belief that their lives ought to be “fair,” in both outcome and process.
To avoid unfairness, they are even willing to reject real benefits to
themselves and take nothing, if the benefits aren’t ‘good enough.’ This
is true even if the benefit is otherwise free.

In
the “ultimatum game [1]” subject A is given $100 and told to share with
B.  B may accept or reject his share. If B accepts, both keep their
share. If she vetoes it neither gets anything. Most offers approach 50%.
Pure economic rationality suggests that A should offer less and B
should accept all offers above zero.  She did nothing for the money and
will be better off for having whatever she gets.

Why
is there so much rejection? Handgraaf et al. [3] suggest that choosing
rejection is a no-action option, a decision easy to make because it
requires little attention.  When experimenters drew attention to the
potential loss of $30 – in their terms, made it ‘salient’ – the
percentage of rejections was cut in half. That is, many of the subjects
“woke up” and behaved in an economically rational manner. [4]

Salience
is not the only possible explanation. Ariely points out that we decide
things using relativity. That is, we decide how happy we are by
comparing ourselves to others [5]. Enforcing a $0 recovery for both
restores the equilibrium lost if we accept an unfair distribution.
Further, f we get less than our experimental partners, we may well
become unhappy and angry. Anger makes us overconfident, competitive,
risk-loving and focused on revenge – not focused on benefit to
ourselves. [6]

The anger
explanation is perfectly consistent with the finding that the proportion
of rejections dropped when subjects’ attention was drawn to the
irrational behavior. When we are asked to think about our situations,
the rational part of our brains engages, and the influence of our
emotions diminishes. [7] Still another possible explanation is that test
subjects become embarrassed by their irrationality when experimenters
ask about their behavior, and try to behave rationally for the remainder
of the session. [8]

 


Standards of Fairness

There are four basic principles of fairness: 

  1. The equality principle is that everyone participating in an event should share any benefits equally.
  2. According to the need principle, “those who need more should get more…” 
  3. The generosity principle decrees that one person’s outcome should not exceed others’ outcomes.
  4. Finally,
    the equity principle ties the entitlement to benefits to parties’
    relative contribution. Those who have contributed more should receive
    more.

What
“fair” means depends the circumstances, relationships, and culture of
those involved. When dealing with a stranger, the goal is to maximize
recovery, and the standard of fairness selected will be whichever
achieves that goal.  The choice of standard will be different for a
long-term business partner, relative, or romantic partner [9]. 
Handgraaf et al. found that if allocators could take secret advantage of
the distributees, they would. This suggests that the allocator’s offer
of equal or near equal amounts is not altruistic. It is economically
rational, meant to optimize the distributee’s chance of acceptance, and
the allocator’s resulting income. [10]


Fairness and the Mediator

Like the disputants, the
mediator must be deeply concerned with fairness.
 

Indeed, a reputation
for fairness and neutrality is the mediator’s greatest asset. 
“Fairness,” in this context addresses, a fair process, since the
fairness of the outcome is a matter for the parties’ determination,
There are those, such as Professors Owen Fiss [11] and Judith Maute,[12]
who argue that certain cases (for example, those involving toxic waste,
or constitutional issues, or domestically abused parties, that so
affect the public interest that they should not be mediated, or at least
that mediator should be responsible for a fair outcome.

Making
mediators accountable is for outcomes is antithetical to their role as
facilitators.  Who could possibly confide in a “neutral” who might
declare an outcome “unfair” and press for some other outcome? Further,
barring cases from confidential ADR does not guarantee that the dispute
will get to court. Court is expensive. time consuming, and scary.
Perhaps it will go nowhere. Better to provide some forum for a quick,
acceptable resolution than the unattainable, five year trek through the
courts.  Yes, at times a party will not be eloquent, or may be timid.
But evening out the playing field is unfair too… how can you be sure
that your help has not now disadvantaged the previously-stronger party?
And this is clearly not what the parties signed on expecting. If a
neutral is unwilling or unable to move a case along, he or she is free
to return any fees and withdraw.

Another
part of fairness is ensuring that all parties are given a chance to
speak, ask questions, understand the answers, display related emotions,
and suggest resolutions that work.  If necessary, they should be given
an opportunity to consult necessary outside experts.  Finally, Professor
Sarah Burns asserts that mediators must be self-aware.  “Affirm that
your goal is to be fair and non-discriminatory; always look for and
listen to feedback to improve your efforts to achieve that goal”. Also,
mediators need to be cautious about categorization (which can lead to
discrimination), to speak positively, and to enjoin clients to behave in
the same way.[14]Finally,
there is the Western concept of neutrality – disinterest, lack of
knowledge of the parties and even-handed treatment. This is behind the
new disclosure rules  In contrast, in China the Western concept of
impartiality is alien; the ideal mediator is a respected authority
figure with ties to both parties.[15],  Whatever the cultural
distinctions, the parties to a mediation must believe their neutral is,
well, neutral. Otherwise, no progress will be made.


ENDNOTES

  • [1]
    G€uth, W., Schmittberger, R., & Schwarze, B. “An experimental
    analysis of ultimatum games,” Journal of Economic Behavior and
    Organization, 3, 367–388. (1982)
  • [2]
    Handgraaf, M. et al. “The salience of a recipient’s alternatives:
    Inter-and intrapersonal comparison in ultimatum games,” in M.J.J.
    Handgraaf et al. Organizational Behavior and Human Decision Processes
    (2003)
  • [3] Id.
  • [4] Id.
  • [5] Ariely, D. Predictably Irrational: the Hidden Forces that Shape Our Lives (Harper-Collins, 2008).at Ch. 1; passim
  • [6]
    Lerner, J. & Keltner, D. “Beyond Valence: Toward a Model of
    Emotion-Specific Influences on Judgment and Choice.” Cognition and
    Emotion (2000) Vol. 14 No. 4, pp. 473-493; Adler, R.. Rosen, B. and
    Elliot M. Silverstein, “Emotions in Negotiation: How to Manage Fear and
    Anger,” Negotiation Journal, 14:2 (April 1998), pp. 161-179.
  • [7]
    Fromm, D. “Emotion and Negotiation, Part II”
    http://www.negotiatormagazine.com/article408_2.html (last visited June
    23, 2013)
  • [8] There is some
    precedent for the idea that embarrassment can lead subjects to change
    their responses in social science research. This is what is behind the
    so-called “[Tom] Bradley effect” in polling – false responses based on
    shame caused by not voting for a minority. See Stout, Christopher; &
    Kline, Reuben. (2008). Ashamed Not to Vote for an African-American;
    Ashamed to Vote for a Woman: An Analysis of the Bradley Effect from
    1982-2006. UC Irvine: Center for the Study of Democracy. Retrieved from:
    http://escholarship.org/uc/item/3q6437f6  (last visited June 23, 2013)
  • [9] Welsh, N. A. “Fairness: Perceptions of Fairness in Negotiation” 87 Marquette Law Review 753 (2004) at 754
  • [10] See fn. 2, supra. at p 5.
  • [11] Fiss, O. “Against Settlement” 93 Yale L.J. 1073 (1984)
  • [12]
    Maute, J. “Mediator Accountability: Responding to Fairness Concerns.”
    Journal of Dispute Resolution 1990.2 (1990): at 347-369.
  • [13[ Burns, S. E. “Thinking About Fairness & Achieving Balance in Mediation” (2008) 35.44, at Fordham Univ. L. J 44
  • [14[ Id.
  • [15]Law, Siew-Fang “The construct of neutrality and impartiality in Chinese mediation.” 22 Alt. Disp Resol, J.118, at 1

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Scott Van Soye
Managing Editor - Scott Van Soye is the managing editor of ADR Times. He is also a full-time mediator and arbitrator working with the Agency for Dispute Resolution with offices in Irvine, Beverly Hills and nationwide. He is a member of the California Bar, and practiced real estate, civil rights, and employment law for over twenty years. He holds an LL.M. in Dispute Resolution from Pepperdine University, where he is an adjunct professor of law. He welcomes your inquiries, and can be reached at scott.vansoye@agencydr.com or (800) 616-1202, Ext. 721. agencydr.com