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One comment

  1. I am trying to post the following comment to the post Mediator “Fairness”? By John Sturrock on May 01, 2018 but unable to do that.
    I enclose my comment, can you help me to post it?
    Thanks,
    Omer Shapira

    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

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