At the ABA Dispute Resolution Conference, I had a chance to hear a panel of experts from around the world talk about different ways of viewing the mediator’s role in helping achieve a just result for parties using the process. In China, which has a couple of thousands of years of experience using variants of mediation, the mediator’s role in this regard is viewed very differently from the west, where the practice is of relatively recent vintage. There, mediators have the power, even the duty, to make sure that the result accords with legal norms, and can even prescribe a different outcome from one the parties express. In countries such as the UK, Australia, and the US, on the other hand, mediators are usually admonished to avoid interfering with the parties’ choices, although there are situations where mediators should consider withdrawing if they feel an unjust outcome is being perpetrated on one of the parties.
What is justice, anyway, and do we know it when we see it? Generally my feeling when I act as a mediator is that the parties are probably in a better position to assess the fairness of their agreement than I am, and therefore I should not be imposing my own views on their process. Mediators do not have possession of all the facts, and should not presume they have any better insight into the “correct” legal result of any given dispute than do the parties themselves or their own attorneys whose job is to compare the results their clients can achieve by settlement to the results they can achieve through litigation. Nor should we assume that the legally mandated result, to the extent we can even discern what that is, is necessarily more fair to the parties than the result they arrive at themselves. One thing we can suggest to parties is that the available alternatives to a negotiated agreement are not necessarily going to produce a more “just” result. All we can do is forecast a range of possible alternative outcomes, and attempt to assign probabilities to them, in the event the parties are unable to reach agreement. We can also suggest that negotiated resolutions serve other valid interests in addition to justice. Peace, for example. Efficiency, for another example.
It’s useful to recognize, as these panelists suggested, that the mediator has a powerful role in influencing the outcome, whether we try to do that consciously or not. We should also be concerned that mediated outcomes may sometimes reflect power imbalances between the parties, or be impacted by a party’s ignorance of their legal rights. Whether we can or should do anything about those problems is still open to debate.
By Joe Markowitz