Written by Dorcas Quek Anderson, Singapore Management University.

Mediation – a legitimacy deficit?

Mediation has been plagued with a problem of legitimacy.[1] Genn stated that mediation “does not contribute to substantive justice because mediation requires the parties to relinquish ideas of legal rights during mediation and focus, instead, on problem-solving”.[2] Mediation appears to be all about procedural justice, a concept that is associated with perceptions of fair treatment. And procedural justice does not seem to have any discernible link with substantive justice, in terms of giving effect to well-accepted norms.

This blog entry is drawn from a paper that was presented at the Australasian Dispute Resolution Research Network 6th Annual Roundtable and the LSAANZ Conference. I argue that there is an invaluable connection between procedural and substantive justice that should be further articulated and strengthened. However, there are also considerable inadequacies in the current mediation principles, causing weak links between procedural and substantive justice. I focus here on only one aspect of the paper – that the mediation principle of “norm education” should be further developed to enhance party autonomy and more adequately advance substantive justice.

 The undisputed link between procedural and substantive justice

The link between procedural justice and substantive justice has been indisputably established by socio-psychological research examining the participants’ subjective assessment about the fairness of the dispute resolution process. Welsh, drawing from the work of Lind, Tyler and others, highlighted how positive perceptions of procedural justice would likely lead to favorable perceptions of substantive fairness and more durable agreements.[3]  Four aspects of procedural justice have been found to consistently contribute to high perceptions of justice – voice;[4] a sense of being heard and understood,[5] being treated with dignity or courtesy;[6] and being given even-handed treatment.[7] Many of these aspects strikingly mirror current mediation principles, such as mediator impartiality. The foundational mediation principle of party autonomy advances many of the above aspects of procedural justice. Self-determination involves direct participation by the parties in communicating and negotiating; party control over the substantive norms that guide their decision-making; and party involvement in the creation of settlement options.[8] Evidently, these aspects of self-determination help to give disputants the opportunity to voice their views, feel heard by the mediator and the other party and be accorded respect and a sense of dignity.

However, moving beyond parties’ perceptions of fairness, there remains the question of whether the relevant norms are actually considered within the mediation process. [9]

Substantive justice in mediation – the complex interaction of norms

My full paper examines how substantive justice is achieved through the complex interaction of a variety of norms within mediation. Some of these norms take the form of broad principles such as equity, equality and need. Other norms comprise individual preferences and values, or shared standards of a community to which the disputant belongs. Legal standards are the most common norms alluded to, given the dominance of the courts in publicly establishing norms for the society.[10] There are evidently very diverse sources of norms at play within each mediation, and not all the competing norms are given final recognition in the mediation outcome. According to the philosophy of party empowerment in mediation, it appears as if norms are determined only by the parties. In reality, many of their subjective norms are influenced by external standards.[11]

Party autonomy is exercised within limits of external norms

It is argued that there is now growing consensus that party autonomy over the mediation outcome must be exercised within the limits of certain external norms. Waldman and Akin Ojelabi observed that many mediation codes caution against excessive mediator influence, but simultaneously call for the mediator to terminate the process if an unconscionable or illegal agreement appears likely. They argue that these provisions implicitly recognise that mediation agreements must meet a minimal threshold of justice.[12]

The global sentiment encapsulated in mediation ethical codes indeed points overwhelmingly to the presence of overarching norms that limit party acceptability. The Singapore Standards oblige the mediator to withdraw from the mediation if the mediation has assumed “an unconscionable or illegal character” or is likely to result in a settlement “against public policy or of an illegal nature”.[13] This is clear endorsement of mediation taking place within the limit of public norms. The Australian Standards allude to such limits by imposing the duty to terminate when a participant is misusing the mediation, not engaging in the mediation in good faith or the participant’s safety is at risk.[14] Singapore’s Mediation Act allows a mediated settlement agreement to be recorded as a court order, except when the agreement contravenes public policy; is not capable of being enforced as an order of court; or is not in the best interest of a child.[15] Additionally, UNCITRAL’s current draft provisions for enforcement of mediated settlements do not allow enforceability where the agreement is “null and void, inoperative or incapable of being performed under the law to which parties have subjected it to”, and when enforcement would be “contrary to public policy”.[16]

A proposed mediation principle of “norm education”

In relation to critical, well-established norms that are contained in codes or are essential in certain types of mediation, the parties’ autonomy is clearly circumscribed by external norms. However, these norms may not be given effect to if mediation is characterised by adherence merely to the parties’ values. What if there are well-established norms that the parties have yet to consider? Or what if the parties’ discussions are veering close to a result that cannot be enforced, or an agreement that may infringe legal principles? In such circumstances, there is surely good reason for the mediator to educate the parties on norms.

However, there is yet to be a well-established mediation principle of “norm education”. The current mediation standards in Australia and Singapore allow the mediator to terminate the mediation if there is bad faith or misuse of the mediation,[17] or when it is likely to result in a settlement that is against public policy or is illegal.[18] The closest principle to norm education is “informed consent” in the Australian Standards, which suggests that the mediator should, as far as possible, attempt to ensure that disputants have access to sources of advice and information.[19] The principle of informed consent is, however, severely limited when it is not feasible for the disputants to obtain independent legal advice.

It is argued that there is room to allow the mediator to educate the parties on such norms where they are unaware of them, instead of only having the drastic option of withdrawing from the mediation. After all, such practices are in reality taking place in mediation practice. Waldman wrote about the norm-educating model used commonly in divorce mediations, wrongful termination and other court-referred cases mediated “in the thick shadow of the law”. She contends that the consideration of social norms in this model helps “enhance autonomy by enabling parties to make the most informed decisions possible”.[20]. It is therefore suggested that the mediation community consider the principle of norm education in relation to critical norms encapsulated in codes and legislation. Such a principle would be invaluable in advancing substantive justice.

[1] Jonathan Crowe and Rachael Field, The Problem of Legitimacy in Mediation, Contemporary Issues in Law 48 (2007/2008) (discussing the question of why mediation is legitimate).

[2] Hazel Genn, Judging Civil Justice 82 (2010); Hazel Genn, What is Civil Justice For? Reform, ADR, and Access to Justice, 24 Yale J. Law and the Humanities 15 (2013).

[3] Tom R. Tyler, Why People Obey the Law 161 (1990).

[4] J.W. Thibaut & L. Walker Procedural justice: A psychological analysis. (1976); Allan Lind, Procedural Justice, Disputing and Reactions to Legal Authorities, in Everyday and Trouble Cases (Austin Sarat et al. eds., 1998) at 177, 225.

[5]Allan Lind, Procedural Justice, Disputing and Reactions to Legal Authorities, in Everyday and Trouble Cases (Austin Sarat et al. eds., 1998) at 177, 225.

[6] Tom R. Tyler, The Psychology of Procedural Justice: A Test of the Group-Value Model, 57 J. Personality & Soc. Psychol. 830, 831 (1989).

[7] Gerald S. Leventhal, What Should be Done with Equity Theory? New Approaches to the Study of Fairness in Social Relationships, 27-55 in Social Exchange: Advances in Theory and Research, (Kenneth J. Gergen, Martin S. Greenberg, and Richard H. Willis eds., 1980). See Welsh’s summary of this body of research in Nancy A. Welsh, Magistrate Judges, Settlement, and Procedural Justice, 16 Nev. L.J. 983 (2015-2016), at 1024-1026.

[8] Nancy A. Welsh, The Thinning Vision of Self-Determination in Court-connected Mediation: The Inevitable Price of Institutionalization? 6 Harvard Negotiation Law. Rev. 1, 3 (2001).

[9] After all, Lind and Tyler brought up the danger of manipulation of procedural justice, leading to “false consciousness” of justice. See E.A. Tyler Lind, The Social Psychology of Procedural Justice (1988) at 201.

[10] National Alternative Dispute Resolution Advisory Council (NADRAC), Issues of Fairness and Justice in Alternative Dispute Resolution (Commonwealth Government, 1997), 22.

[11] Robert Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J 950, 966, 968 and 973 (1979) (arguing how the outcome that the law imposes provides a reference point against which parties seek to gain a better outcome within mediation).

[12] Ellen Waldman & Lola Akin Ojelabi, Mediators and Substantive Justice: A View from Rawls’ Original Position, 30 Ohio St. J. on Disp. Resol. 391 (2014-2016) at 413, 418.

[13] Singapore International Mediation Institute, Code of Conduct, § 5.9.

[14] National Mediation Accreditation System Approval Standards, § 5.1.

[15] Singapore Mediation Act 2017 (no. 1 of 2017) § 12

[16]United Nations Commission on International Trade Law (UNCITRAL) Working Group II, Settlement of Commercial Disputes – International Commercial Conciliation: Preparation of an Instrument on Enforcement of International Commercial Settlement Agreements resulting from Conciliation (14 July 2017),

[17] National Mediation Accreditation System Approval Standards, supra note 28 § 5.1.

[18] Singapore International Mediation Institute, Code of Conduct, supra note 36 § 5.9.

[19] National Mediation Accreditation System Approval Standards, supra note 28 § 7.3, 7.6.

[20] Ellen Waldman, Identifying the Role of Social Norms in Mediation: A Multi Model Approach, 48 Hastings L. J. 703, 727-733 (1996-1997). See also Anne Barlow, Rosemary Hunter, Janet Smithson & Jan Ewing, Mapping Paths to family Justice: Resolving Family Disputes in Neoliberal Times (2017) at 187 (finding in a study in England and Wales, found that family mediators not only referred the parties to external legal advice, but offered information to the parties. Many of them distinguished between advice and information, reasoning that it was within ethical limits to flag out to the parties the legal parameters limiting their negotiations