There Are No Winners or Losers in Mediation: Only Fairness

By James Teh

This post is one in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to the justice system to ordinary readers. The very best post on each topic is published here.

A disputant agreeing to an unfavourable outcome in mediation can still be a ‘happy disputant’. The secret to making that happen is simple: be fair. Research has shown that when procedural justice is accorded to all parties by the mediator during the mediation process, participants tend to accept the decision, regardless of the outcome.

So, what is procedural justice?

Procedural justice, or ‘PJ’, in its simplest description, is ‘the [parties’] perception of the fairness of the procedure’. Hollander-Blumoff and Tyler posit that the perception of fairness in PJ derives from the participants’ opportunity to have a voice, third-party’s neutrality, being able to experience trust, and being treated with respect and dignity in the process. Once these four elements have been accorded, participants are more likely to view the procedure as fair, and consequently, be more willing to accept the outcome. However, the question is how to incorporate these elements in the mediation process, especially when mediators don’t need to be ‘neutral’ in the first place.

What is mediation?

According to the National Mediator Accreditation Standards (‘NMAS’), ‘[m]ediation is a process that promotes the self-determination of participants.’ Mediation may be ordered by the court (‘court-ordered mediation’) or initiated voluntarily between parties. A mediator can assist the parties by advising or determining the process of mediation but will have no advisory or determinative role. Participants can, therefore, have control over the outcome of their disputes, rather than having the court to decide for them.

Impact of the mediator and the type of mediation

It is important to understand that the disputants’ participation, perceived fairness and satisfaction in the process is related to the type of mediation model employed by the mediator. For instance, by applying  facilitative or transformative mediation, disputants are empowered as they have the opportunity to voice their needs in a respectful process. In contrast, settlement and evaluative mediation are outcome-driven and the disputants’ non-legal and personal needs are not the prime concern. This can result in disputants feeling pressured to settle and thus, perceive the process as unfair. No matter which model is used, the disputants’ experience, satisfaction and outcome of the mediation process can also be impacted by a mediator’s interventions in the process. For example, the disputants may not be satisfied with the mediation process if they feel that the mediator did not give enough opportunity for disputants to tell their stories, were biased, or were impatient.

Here in Australia, mediation is geared towards the facilitative model with a blend of ‘settlement’ element in it. This is evident from the NMAS’ Practice Standards, which obligates mediators to maintain impartiality and provide a process that allows each party to express their views, issues, needs and interests.

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‘Lady Justice’ by William Cho: Creative Commons Source

Incorporating procedural justice in the mediation process

PJ is highly relevant to mediation and mediators play a significant role in ensuring that PJ is accorded to the parties. The benefits of incorporating PJ into mediation will lead to:

Giving the disputants a voice

The first step to incorporating PJ in a mediation process is to give the disputants a voice. A voice that tells a story and a voice that will be heard by an authority figure with genuine interest. Research has shown that ‘the opportunity for voice heightens disputants’ judgements of procedural justice even when they know that their voice will not and cannot influence the final outcome’. It has been suggested that giving a voice to the disputants provides them with a sense of control in the mediation process.

This practice is already ‘embedded’ in the practice of facilitative mediation where a typical session will have ‘… all parties present so that the parties can hear each other’s point of view …’ Moreover, all mediators are encouraged to give disputants the opportunity to ‘… articulate their respective interests, issues and underlying needs’ under the NMAS’ Practice Standards.

However, Douglas and Hurley observed that as court-ordered mediation tends to focus on efficiency, ‘self-determination may be undermined due to the process being dominated by lawyers with reduced opportunity for parties to engage’. This is further supported by Welsh’s observation that disputants’ voices are ‘hindered by parameters asserted by the mediators’ as mediators in court-ordered mediation tend to ask disputants to ‘confine their remarks to a discussion of the legal merits of their cases.’

The consequences of not giving the disputants ‘the voice’ will eventually cause them to perceive that the process is unjust, and any concluded settlement may later be regarded as unfair. To incorporate PJ into mediation, it is vital that mediators give all disputants the opportunity to talk.

The mediator must always be neutral

The second step is the neutrality of third-party mediator.  Although ‘neutrality’ was removed from the NMAS’ ethical standards in 2015, the need for mediators to be impartial and avoid the conflicts of interest remain.

Mediators must be neutral, but this is not always possible. Mediators will naturally form their view upon hearing the disputants’ stories, and this cannot be avoided. Mediators’ neutrality is also inappropriate where ‘there is a power imbalance between disputants because a failure to intervene may exacerbate this power imbalance.’ For example, a working professional attending a mediation with a migrant whose first language is not English may be perceived as having a considerable advantage over the migrant, thus leading to power imbalance. To incorporate PJ into the mediation process, it is therefore imperative that mediator ‘shows even-handed treatment of each disputant’. An interpreter may be called in this case to ensure that both parties have an equal opportunity to voice their concerns.

Trust is essential

The third step is trust. It has been argued that in the absence of a ‘neutrality’ standard in mediators, ‘parties may actually prefer a more interventionist mediator who is willing to foster openness and build a relationship of trust over a detached one.’ However, one issue that might arise with trust is the lack of understanding on the disputants’ side. From the above example, the migrant’s participation in mediation may be limited. They may not understand the purpose and process of mediation and their approach may be adversarial due to culture difference. Consequently, they may not trust the process, and they would perceive any outcome as inequitable. It is therefore important to incorporate PJ in mediation. Mediators can try to gain the trust of all disputants by building a relationship with the disputants and acting impartially in the process.

Mediators must show respect and dignity

The final step is respect and dignity. Disputants’ PJ judgments are strongly influenced by the dignity in decision-making procedures. It has been suggested that disputants will interpret the mediator’s behaviour as a sign of judiciary’s attitude towards them and their disputes. Treating disputants with respect and dignity is therefore important in a mediation process. Conduct as simple as displaying care and concern for the disputants in the mediation process could go a long way in ensuring that the disputants perceive the process as fair.

Conclusion

PJ and mediation work hand in hand to deliver substantive justice to the disputants. Research has already shown that disputants who have been treated fairly in a mediation process tend to accept the outcome well. Overall, mediation, as an alternative to litigation, should be viewed as a fair process that empowers disputants to formulate their solution with the help of a mediator. The result? There are no winners or losers in mediation: only fairness (and happy disputants).

About James Teh
James Teh completed his Law degree at Monash University in 2017 and was also involved in the student publication TechUp Law as part of the Monash Law Ambassadors Program. He is currently undertaking his Practical Legal Training at the Leo Cussen Centre for Law and has a keen interest in commercial and family law.

Featured image by Luiz Hanfilaque on Unsplash

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