We finished module 2 of our flagship training course last week. One of our participants emailed me the next day:

“I was driving up the road yesterday and mulling over one aspect of the mediation exercise we did. I get that we are facilitating adults to make fully informed autonomous decisions and that they need to make that decision based on their priorities, circumstances and judgement – that is not the mediators job. Ensuring they can consider all options and think about consequences etc, as well as making them aware they have the opportunity to seek professional advice helps.

However, it was the aspect of “needs” that concerned me. When Paula said she would accept a figure which was more than her immediate need (her debt that needed repaid soon) there was a request for her to consider if that was actually her need or would another figure (probably lower) be acceptable. That would clearly help the mediator get towards an agreement. But would it be fair? Does a mediator need to worry about “fair”?

I like the idea of mediation because it opens up a process that is more accessible than courts. It takes out the size of the wallet as being one of the deciding factors of an outcome as is often the case in court battles. But if we don’t consider fairness it does feel that, if you are needing the money, you are more likely to settle for a very small bird in the hand. If Paula didn’t have debt she wouldn’t feel so pressured to reduce her “wants”.

I think I am arguing myself to the position that it is the fully informed autonomous decision that is important and that mediator fairness (or at least the mediator’s view of fairness) should probably not be the concern. But I am not sure how comfortable I feel about that. Is it just a fact of life that the more “needy you are” the more likely you are settle for less? Can someone be a mediator when their instinct is to fight for the underdog?”

I replied:

“A great question and one with which many have wrestled over the years, not least those concerned with “justice”. And those whose instinct is to fight for “underdogs”.

Perhaps, if one’s instinct is to fight for the “underdog”, then one should be an advocate, not a mediator. That is unless one can somehow set that bias (for that is what it is) aside.

“Fairness” is an elusive concept. What seems “fair” to one may not seem “fair”to another. How do you decide? By making a judgment based on what you know. But what do you know?

Paula may have a “sugar daddy” in his Merc outside. She will not tell you. The organisation may have no money or may go out of business before the Tribunal hearing on Paula’s claim. You may not be told.

In any decision, people take account of so many factors, conscious and unconscious. Apparent needs is one. If you test that out and, in particular, test out the BATNAS and WATNAS, what else can you do? Who are you to superimpose your judgement on that of Paula if she is fully capable of making a decision and as well informed as she can be? How would you feel if you said “that’s not fair” and a deal wasn’t done, and Paula was then assaulted by the drugs guy to whom she owes 10k and who won’t be waiting till the Tribunal in x months time? It’s not easy.

If handled well, mediation offers an opportunity for people to decide what they want to do in their own particular circumstances. And, yes, the more needy may actually get less in money terms on an objective view. But what is it worth to them? The widow’s mite comes to mind. Paula’s being “pressurised” is not because of mediation. It’s because of her circumstances. Countless people in the court system win and lose because the judge is incompetent or their lawyer didn’t prepare well. How fair is that?

So, how can a mediator ever have a “view of fairness” that is anything other than subjective or at least largely irrelevant to the matter in hand?”

This is a provocation. Now, over to you all. Thoughts? Responses?

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6 comments

  1. John’s blog has left me wondering about an incident several years ago when the debtor, in private session, sought and obtained advice from his lawyer as to how and how quickly he could dispose of his assets, to avoid paying anything to the creditor. I terminated the mediation, saying it was inappropriate to continue. This infuriated the creditor, who had not yet put his final offer. I could not explain my reason without breaching confidentiality.

    Was I inappropriately acting on my sense of fairness? Should I have let them reach an agreement I knew/suspected/believed would be dishonoured?

    1. Alan
      A quick response: I think you may have been correct. Rather than characterising this as “fairness”, I would suggest this was an ethical matter. You were party to discussion about a deception. To continue, without sharing this information (which you could not), would have placed you in an ethical dilemma. One test is: what would the creditor have thought if he subsequently found out you had known of the debtor’s plan? I suppose it depends on how seriously the debtor was considering this plan. Was it merely a discussion of an option? Might the creditor have been invited to ponder what the debtor might do with his assets, without breaching confidentiality? So much depends on the specific circumstances in each case.

    2. Surely the creditor’s comments throw into doubt whether the case is mediable at all (it appears they might not be acting in good faith) and it’s at that point the ethical decision about continuing should be addressed.

  2. I like your reply, John. Here is how I would have answered him:
    Dear Participant,
    Can someone be a mediator when their instinct is to fight for the underdog?”
    A mediator cannot “fight for the underdog” for reasons of impartiality (some might call it neutrality) and professional integrity (the commitment to all the parties as opposed to one, which is a characteristic of mediators’ role). However, a mediator has a responsibility that a weaker party in a mediation he is conducting is not injured by the process. He/She should be concerned with the fairness of the process and in fact she/he has a duty of fairness to conduct a fair process.
    Fairness is indeed an elusive concept but it is important to distinguish between the subjective sense of fairness that we are sometimes too ready to employ (for e.g., the mediator’s sense of what is fair) and fairness in its normative sense, that is: fairness as “playing by the rules”; a norm that requires the mediator to conduct a process in which he/she, the process, and the outcome are consistent with the rules/standards of mediation (for a detailed discussion see “Conceptions and Perceptions of Fairness in Mediation,” 54 S. Tex. L. Rev. 281-341 (2012) available here https://ono.academia.edu/OmerShapira or https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2650457 here ).
    Thus, while a mediator must not impose his personal sense of fairness on the parties (e.g., intervene in a party’s decision to accept an offer that seems inferior to the mediator), he/she has a responsibility to make sure that the norms of mediation are not violated. One relevant norm is indeed party self-determination. If a party is unable to exercise self-determination the process cannot be described as (normatively) fair.
    Self-determination requires that each party makes a voluntary and informed decisions. Outside pressures and pressures by the other side can undermine self-determination, but we cannot realistically expect mediators to equalize inequalities or put the underdog in a position equal to the other party. We can expect the mediator to create an environment in which the weaker party together with the mediator identify these pressures, assess them, consider the weight that should be given to them, understand the offers on the table and the alternatives, and then make an informed decision. This would be a fair process notwithstanding the power imbalances between the parties.
    Regarding the outcome, again, the question should not be whether the mediator believes it to be fair (his personal sense of fairness), because the mediator’s sense of fairness should not replace the parties’. But the mediator must not allow a mediation to end with an unfair outcome in a normative sense. An unfair outcome in a normative sense would be an outcome that is illegal, immoral (in a critical sense) or unconscionable (see more details in the work referred above). The mediator in such circumstances should be concerned with his responsibilities to the process (the profession) and society (sometimes referred to as the integrity of mediation), rather than the parties. Thus, if, for example, the agreement an underdog party is willing to accept is so divorced from acceptable social norms that there is a risk that public faith in mediators and mediation depreciate – the mediator would be justified in terminating the mediation notwithstanding the parties’ willingness to go on with the agreement. In doing so the mediator will be guarding the fairness of the mediation.
    Omer

  3. Thank you for the provocation. Our own view of fairness certainly accompanies us mediators into the room and it is important to confront how that impacts our behaviour.

  4. All

    I have had a private comment that my use of the term “sugar daddy” may be offensive. It seems important to acknowledge these concerns. I share my reply here:

    “I appreciate your comment. I did consider that aspect which is why I deliberately put it in italics. I am acutely aware of sexism and always seek to avoid it. It was meant to illustrate a point that we don’t know what is going on in people’s lives. I think I may have been influenced by a recent article on the topic. And it may also be to some extent influenced by the context of the course and the workshop this comes from. I am sorry that it offended you.”

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