CPR Mediation Committee Looks at Justice in ADR

The CPR Mediation Committee hosted guest Charlie Irvine on the topic of justice in mediation at a Sept. 18 meeting.   

Irvine is a newly minted Ph.D. and senior teaching fellow at University of Strathclyde Glasgow’s School of Law.  During the hour-long online presentation and discussion, Irvine presented his doctoral research topic ("Does Mediation Deliver Justice? The Perspective of Unrepresented Parties"), which focused on how mediation participants view their process outcomes.   

Irvine explained that his curiosity on the subject was sparked by criticisms leveled by illustrious British academic Dame Hazel Genn--that mediators care only for settlement and are indifferent to notions of fairness and justice.

That assertion did not correlate with his own motivations and experiences in the field, and led him to research the question of how dispute participants viewed their mediation outcomes and whether they experienced their settlements as just.

Using the Strathclyde Mediation Clinic, he directs and supervises as a partial laboratory, Irvine was able to collect valuable data asking participants about their experiences and whether they felt that they got justice. 

Among those that reached a settlement in their dispute, he observed a majority didn’t feel that they received justice. He posits that some of this is based on expectations of what they may have gotten had a judge ruled on their case. 

Another dynamic is the fact that, with the participants as the decision makers in the dispute, an opposing participant can always veto the version of settlement that would be considered full justice.

One committee member offered her own experiences as a mediator, relating it to the research, and noting that she sets the disputants’ expectations at the beginning of a session.  She said she emphasizes that mediation is “not a litigative process,” and attempts to make disputants aware that only they make the decisions and “figure out what justice looks like” for them. She said she finishes by telling the disputants that they “have to find a way to compromise, and that justice requires compromise.” 

Another committee member provided insight from mediation experiences, noting that while self-determination is an important theme that mediators see as a benefit of the process, a lot of participants say “No, they didn’t feel like they had control, because they had to share control” with their co-disputant--echoing Irvine’s research findings.

New York mediator and CPR Mediation Committee Co-Chair Steven Bierman added that the mediator’s objectives and disputants’ expectations may be misaligned. As had been mentioned earlier in the conversation, much U.S. mediation training adopts a facilitative approach that discourages the provision of  legal information or overly aggressive “reality testing.” Consequently, mediators with this training may not feel comfortable or equipped to provide disputants with the sort of information that would allow them to assess for themselves how the terms they are settling on compare to outcomes they might achieve if a judge or jury were to apply the relevant legal norms  

Following up on this point, CPR Mediation Committee staff liaison Ellen Waldman suggested that even when mediators sense that disputants may be misinformed about their legal entitlements, mediator understandings of their ethical mandate to maintain strict impartiality and avoid falling into a representational role may lead them to avoid setting the record straight or educating parties about the relevant legal norms.

The meeting was an insightful conversation anchored in original research highlighting the need for a fresh look at mediation deliverables from the disputants’ point of view. U.S. mediation training seems to produce more facilitative mediators whose focus on the procedural aspects may be missing the opportunity to deliver more satisfying outcomes that could deliver a more just outcome from the disputants’ perspective.

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The author, a CPR 2024 Fall intern, is candidate for a Master of Science degree in conflict management at Atlanta’s Kennesaw State University, School of Humanities.

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