Who bears the responsibility for fairness in mediation?
It is generally accepted that every dispute resolution process should have fairness as one of its goals and that there are several theories of fairness: procedural, substantive, restorative, informational, retributive, distributive etc. While mediation might not be designed to achieve all of these ideas of fairness, there is agreement that mediators are responsible for procedural fairness. This requires ensuring that parties are given the opportunity to speak and to be heard, and in addition, the opportunity to negotiate on the basis of informed consent (cl 9 NMAS Practice standards, 2012). As such, it is arguable that mediators are informational ‘fairness fairies’ in that they are required to support the parties to reach agreements on the basis of informed consent (cl 9.1 NMAS Practice Standards, 2012).
However, mediators are generally not viewed as bearing responsibility for substantive fairness: they are not substantive ‘fairness fairies’. They, on the other hand, are to support a party to assess the ‘feasibility and practicality’ of proposed agreements ‘in accordance with the participant’s own subjective criteria of fairness’ (cl 9.7 NMAS Practice Standards, 2012).The responsibility for achieving fairness thus lies with the parties. They are to satisfy themselves that they have achieved, what to them, is fair in the circumstances of their dispute. In doing this, they are supported by the mediator who is not to pressure them into any form of agreement. Parties are thus, the substantive ‘fairness fairies’: they must have ‘the eye’ for fairness of the outcome.
But it is not in all cases that parties know exactly what fairness might represent or require in their disputes. This is particularly so when they are not well or fully informed, are not in a position to obtain relevant information due to lack of resources, or have diminished capacity as result of disability etc. In these situations, what options are open to the mediator to support parties to assess the feasibility and practically of a proposed agreement? Who takes the role of the substantive ‘fairness fairy’?
Possibly the role of the ‘fairness fairy’ shifts to the support person(s) present at the mediation, or where a party is legally represented, to the legal representative who is expected to act in the best interest of her client. But are lawyers always fulfilling this role in mediations? Should the responsibility for fairness become solely that of legal representatives? Should mediators always assume that lawyers will act as ‘fairness fairies’ in mediations?
For a view on the role of lawyers in mediations, see post dated 27 March 2015: “On Mediation, Legal Representatives and Advocates by Bobette Wolski” (Post by Dr Olivia Rundle)