Plaintiffs file lawsuits seeking “justice”. Defendants respond, stating they are seeking “justice” as well. Both come to mediation, seeking “justice”. When I am told this, that each side wants “justice”, I am not sure how to respond because I do not know exactly what that word means.
An article by Jonathan M. Hyman and Lela P. Love, 9 Clin. L. Rev. 157, 158-174 (2002) entitled “If Portia Were A Mediator: An inquiry Into Justice in Mediation” sheds light on my quandary and may, in fact, help solve it. (If Portia Were a Mediator 9 Clinical L Rev 157 ) The first point that the authors make is quite salient: “…justice in mediation is different from justice in adjudication.” (Id. at 160-161).
In a court of law, i.e. at a trial, the justice comes “from above” (Id.) — from the judge or jury. Each applies statutes or rules or other legislatively or judicially created standards to the “facts” of the case and makes a decision that produces a result. Thus, “justice” in this setting comes from two sources: the rules, laws or standards that are applied and the process used to apply them. (Id.) In seeking this “justice”, the parties are restricted in which issues may be presented for trial, and how they may be presented. The rules of evidence, including relevancy are paramount. (Id.)
By contrast, in a mediation, “justice” comes from “below”—from the parties themselves. As the authors explain:
The rules, standards, principles and beliefs that guide the resolution of the dispute in mediation are those held by the parties. The guiding norms in mediation may be legal, moral, religious, or practical. In mediation, parties are free to use whatever standards they wish, not limited to standards that have been adopted by the legislature or articulated by the courts. (Id. at 160.)
To obtain this “justice” at mediation, the parties may discuss any issue they wish, in any order they wish, and in their discussions, include both relevant and seemingly irrelevant information. Neither the rules of evidence apply nor are the parties concerned with whether their discussions fit neatly into a claim for relief, a cause of action or an affirmative defense as pleaded in their lawsuit (Id. at 161.) They do not have to worry about authenticating a document or finding an exception to the hearsay rules of evidence. Rather the rules for information gathering and issue resolving are the applicable ones. (Id.)
Thus, the definition of “justice” in a mediation is the one given by the parties themselves in whatever way they “…experience, articulate and embody [it] in their resolution of the dispute. “ (Id. at 164.) But, as the authors are quick to point out, “justice” is NOT the sole reason why parties settle lawsuits; rather, it is one of several reasons. Those other reasons may include the continuing cost of litigation, “it is time to move on with her life, or she no longer cares about the outcome, or she wants the dispute to end.” (Id. at 164.) While justice may not be the overarching reason for settling, it will still play a role because our inner selves will not allow us to agree to an “unjust” settlement. (Id. at 164-165.)
So, at mediation unlike at trial, the parties seek “justice” according to their own definition of it. But, exactly how do they define it? They may do so in one of several ways.
For example, they may seek “reparative justice” “… to seek repair of what they see as a wrongful deprivation or harm imposed on them by the other.” (Id. at 166.). Such alleged wrongful acts may not be limited to violations of statute. They may include such things as being disrespectful, or simply having a strong disagreement. (Id.)
Or, they may seek retribution and revenge. Here, the parties seek “…revenge for the wrong claimed to have been done.” (Id. at 167.) In short, it is the “eye for an eye” concept. Mediation can be used to put this narrow goal into a larger context in which apologies and reparations may provide the solution. (Id. at 167-168.)
Or, they may seek “distributive justice” in which the resources (typically money) are divided. In such situations, discussions often revolve around “equality, equity and need.” (Id. at 168-169.) And, a typical way of resolving the dispute is to use equality by “splitting the difference.” (Id. at 168-169.)
Last but certainly not least, and if anything, the most important in mediation, the parties seek “procedural justice.” Of great importance to parties at a mediation is the ability to tell their story, to feel that the mediator hears and considers their story and to be treated with dignity and respect, all in a neutral manner. (Id. at 172.) These are the keys to “procedural justice.” And if parties feel that they have received procedural justice, they will most likely feel good about the fairness of the process, the fairness of the substantive justice they received in the settlement at mediation and most importantly, be quite willing to comply with the terms of the settlement. (Id.)
So, the next time someone in my mediation states that she is seeking “justice”, I will simply respond by asking how does she define it? What does she mean by this term? With her definition in hand, I will attempt to assist her in obtaining that ‘justice”.
…. Just something to think about.
By Phyllis G. Pollack