Justice in Mediation Justice Law Fairness 6 Adjudication Process and outcome control 6 Judge Party A Party B 7 Mediator Party A Party B Mediation Subjective justice 8 Conciliator Party A Party B Precedent Legal doctrine Statute Objective justice Proposals Conciliation (Kalowski) 9 Mediator Party A Party B Whats fair? Whats normal? Whats practical? Mediated justice? Mediation (Irvine, with thanks to Waldman) The belief that mediators are responsible for ensuring fair outcomes is..... highly contentious Unlike an adjudicator, the mediator is constrained by neither procedural rules governing process, nor substantive rules determining outcome. Ellen Waldman The challenge [Mediation] does not contribute to substantive justice because [it] requires the parties to relinquish ideas of legal rights during mediation and focus, instead, on problem-solving. The outcome of mediation, therefore, is not about just settlement it is just about settlement. Hazel Genn, (2010) What is Civil Justice For? Reform, ADR, and Access to Justice. Yale Journal of Law and the Humanities, Vol.24, Issue 1 US version A Just Alternative or Just an Alternative? Paul Steven Miller, (2001) Mediation and the Americans with Disabilities Act 62 Ohio State Law Journal What is Justice? Substantive justice What you get Procedural justice How youre treated More consensus on procedural than distributive outcomes Fair treatment had a positive impact on peoples assessment, not only of the particular process they were involved in, but of the entire justice system opportunity to present views, concerns and evidence to third party. Voice perception that third party considered their views, concerns and evidence. Being heard Even-handed Dignified Treatment Fourfold Model Distributive justice The outcome Procedural justice Decision- making processes Interpersonal justice Sincerity and respect Informational justice Adequate, honest explanations What about substantive justice? A serious study of mediation can serve, I suggest, to offset the tendency of modern thought to assume that all social order must be imposed by some kind of authority Lon Fuller Mediation: Its Forms and Functions 44 S Cal L Rev 305 ( ) p Mediations radical move: It offers people a voice in the outcome of their disputes in the criteria by which that outcome is evaluated Compared to what? Mediation, as a process in which the parties control the outcome, avoids reliance on the vagaries, expense, and unpredictability of a court and jury judgment. Miller 2001, p.14 As the resolution is crafted and agreed upon by the parties themselves, there is a greater likelihood that it will resolve the problem and allow the disabled employee to succeed at the job. Miller 2001, p.15 I argue that mediating ethically requires the constant generation of internal norms appropriate for a specific mediation and set of parties (Waldman) the only relevant norms are those the parties identify and agree on Norm generating the mediator is active in ensuring that negotiations are informed by relevant legal and social norms Norm educating the mediator not only educated the parties about the relevant ethical and legal norms, but also insisted on their incorporation into the agreement Norm advocating Waldmans typology Ellen Waldman, 1997, 48 Hastings Law Journal, In increasingly fractious and normatively contested societies could mediation provide more, rather than less, justice? 'The key issue is by what standards should we (the courts, the public, and academic critics) judge the processes chosen and the ultimate results. When is a settlement just and to whom must it appear so? C Menkel-Meadow, Whose Dispute Is It Anyway? 83 Georgetown Law Journal