Does mediation bring justice?: Two views

 

With recent reforms making it compulsory to consider ADR, mediation is coming more and more to the fore in dispute resolution. Many people are being encouraged to use it as a replacement to the traditional method of litigation, and training in mediation is one of the major innovations brought in by the new Bar Professional Training Course. Facilitative mediation – where the mediator helps the parties to reach their own agreement – is playing an ever increasing role in resolving cases. The question is, does mediation produce justice?

View 1: Mediation does produce justice

Conflict is part and parcel of life.  Jesus tells us to pay attention to "the more important matters of the law – justice, mercy and faithfulness" (Matthew 23 verse 23).  He points us to mediation: if he (the other disputing brother) will not listen, take one or two others along, so that every matter may be established by the testimony of two or three witnesses (Matthew 18 verse 16).  Our God would not give us a tool which did not produce justice. 

Mediation gives one a chance to aim at the best result in any dispute, which is a restoration of relationship between the parties.  The fruits of a restored, healthy relationship are many and many of those benefits are often not just for the parties to the dispute but for others such as children.  Mediation is the best forum for allowing love and respect to be heard.  Focus on law alone can easily result in legal judgment which leaves parties estranged because the process of litigation has been relationally contentious and destructive.

For justice to happen certain elements often need to be in place and mediation provides a number of them:-

1.            Time, however long, to understand the dispute and the parties and their concerns, however extra-legal they may be.  Serious issues and good decisions need time for reflection.  But Jesus also says: "settle matters quickly with your adversary who is taking you to court" (Matthew 5 verse 25).

2.            Space to get perspective and build others up rather than just treat a third party in a negative, critical manner. 

3.            Movement by people: often people can see a range of solutions but the way a process is conducted, preferably with tenderness and compassion but at least with a high degree of professionalism especially in commercial cases, is a key element in providing a change of mood before a good decision. 

4.            Recognition of the emotional side of conflict.  Good judges often acknowledge this in what they say to a court or in a judgment.  At times, people need to vent their frustration.  Once they have done that they are in a position to better consider the issues in front of them.

5.            Cultural issues can be considered and factored in to everyone's understanding with a culturally sensitive solution.  We all know how helpful it is to understand as soon as possible people's motivation for their behaviour.  Each party may weigh the same issues differently for a variety of reasons due to their background, experiences or principles. 

6.            Sometimes the effects of the publicity of a court case can cause such collateral damage that injustice results.  This is a classic problem to those finding themselves in the maelstrom of publicity on a high profile case.  Mediation is confidential so people need not be publicly embarrassed.

7.            One of the attributes of a restored relationship is forgiveness: mediation enables full and frank apologies to be given and received. 

8.            Money is a meagre reward sometimes.  Mediation enables both sides and the mediator to find solutions, sometimes non-financial, to problems and that can be sweet.

9.            Mediation is flexible: it can produce a just commercial deal in a day or take several sessions over a long period such as over a relationship breakdown when all sorts of problems, possibly over other people or children need to be carefully considered and the right decision agreed.  Good buy-in also increases the prospects of a solution working long-term. 

Who decides whether justice has been done?  God, ultimately, as scripture reminds us in James 5.  There is right and wrong but each party will legitimately have their view of the nature of a just result.  The core element to mediation is that it is up to the parties to decide the terms of any agreement.  Success and justice are in part subjective questions and evaluation is at the parties' discretion within some obvious parameters, as our limited knowledge of right and wrong shows us.  If either party does not feel an acceptable arrangement has been made, the dispute will continue.  It may be litigated or continued in litigation.  The parties have the option of putting the problem before the Judge later.  And Jesus in Matthew 5 warns us that that can have adverse consequences.

If an acceptable agreement is brokered it should follow suit that, in the minds of the parties to the dispute, standards of success and justice have been achieved. 

Indeed, people seem to like mediation.  The Small Claims Mediation Service, providing free mediation in disputes of under £5,000, received a 98% satisfied/very satisfied report in a poll completed by 7,000 service recipients.  Furthermore, 94% confirmed that they would mediate again. 

To any lawyer advising a client, time and cost are paramount concerns in dispute resolution.  Excess costs have become a bar to reaching the court decision.  This year the Ministry of Justice looking at divorce cases found that mediation took 100 days as opposed to 435 days for court cases.  The cost of mediation was identified as £535 per client compared to £2,823 for court proceedings. 

So, yes, mediation does produce justice – not just at law but relationally.  And yes, here is another biblical principle that should have been taken up years ago in our legal system.  May many more biblical principles follow it into our current practice.

David Foster

Head of Dispute Resolution and a mediator since 1996

Barlow Robbins LLP

View 2: Mediation does not produce justice

Let me begin by saying that mediation is a wonderful thing. It allows parties to restore relationships, to take control of the decision making process. It's often much cheaper and quicker than the litigation alternatives. It is popular, because by its very nature it provides a solution which both parties will accept. But it doesn't necessarily produce justice.

What is justice? Justinian, the Roman law-giver, defined it as "the constant and perpetual wish to give to every man his due." It's what we see judges trying to establish in the courts on a daily basis – what is it that this claimant deserves? What are his rights under this dispute? What needs to be done to set this right? Justice is not something which both parties are always comfortable with; in fact, it is often an uncomfortable thing. It isn't a nice, fluffy outcome where everyone's happy. We only need to look to the ultimate example of justice, where a sacrifice was required for our sins. It's not the solution which works for everyone – it's the right answer.

What the right answer is should be clear. The law is there to establish what each man is entitled to, and while the courts occasionally have to establish new principles, as a rule you can work out what they will consider to be due in advance. It may not always seem to be absolutely right in our eyes, but it is at least consistent. To establish this consistency is more just than to have a wide spectrum of results ranging from right to absolutely unjust, which is in effect what mediation produces.

The very privacy which helps make it such a useful process means that the outcome can be very unpredictable. It doesn't establish a precedent, so that the same situation can be decided in very different ways, depending on the strength of the parties.

This is one of the major flaws of mediation. In a perfect world, the parties coming to the table would be equals, and would have an equal grasp on the situation. However, this is not the case. There will often be a weaker party who doesn't realise how strong his claim is, or is browbeaten by the other's confidence. If, as is frequently the case in small claims, no lawyers are present for either party, the weaker of the two can be led to believe that their case is much worse than it actually is; they may be convinced to settle at an unrealistic level and even to be satisfied with that agreement, believing themselves to have got off lightly.

The other manifest advantages of mediation such as speed and cost efficiency are certainly elements of a just result. The maxim "justice delayed is justice denied" emphasises the importance of getting a result quickly, and Isaiah 10:2 speaks of the Lord's anger against Israel because "they deprive the poor of justice". A just system should be swift, and should be accessible to all. But neither speed nor price defines justice; a quick, cheap solution can be the wrong one.

The restoration of relationships is also a wonderful thing; it's a beautiful thing to see people move from positions of antagonism to a constructive solution and to see a recognition of valid emotion and values. However, this is not the function of justice. Justice is to ensure that each man is awarded his due. People should be entitled to set aside their desire for justice if these other things are more important to them in their circumstances, but they should not be told that this is justice.

Justice is about the outcome. Perhaps the most famous example of justice in the Bible is the judgment of Solomon in 1 Kings 3, where the two women brought a baby to the king, each arguing that the child was theirs. If Solomon had sent them to mediation at this point, the result (if any agreement could be reached at all) might be that they time-shared the baby, or both agreed to equal entitlement to motherhood, or that the real mother paid over all her wages for the next nine months to the other woman for the privilege of keeping her child with her. Here, mediation would enable the wrongdoer to reap benefits from their crime to which they should never have been entitled. The rightful mother might decide that it was better to accept this compromise than take an expensive route through court and risk a year's wages on legal fees, at the end of which she might get nothing.

This would have been a solution, and one which both parties might agree to, but it would not be justice. Justice was the judgment of Solomon, that the true mother's right should be recognised.

Mediation is now being widely promoted, particularly in family law, and this is good. It is good to have a process which focuses on restoring relationships and bringing workable solutions which people can claim as their own. However, those things which make it good do not also make it just. It does not protect the rights of the individual from abuse, nor does it offer equality between the strong and the weak. The outcome of mediation may be highly beneficial, but it is usually not justice. It is a compromise. Sometimes, though, it may be exactly the compromise that the parties need.

Mediation does not always produce justice; on the other hand, there may be cases where the disadvantages of a just solution – dispute, dissatisfaction and dissent – outweigh the benefits. What would be considered the 'right' outcome may not always be the best one.

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