Swimming in the Deep End: Dealing with Justice in Mediation

Authors

Jonathan M. Hyman, Rutgers-Newark School of Law

Abstract

Justice is a troublesome issue for mediators. It is not their role to decide who was right and who was wrong. Mediators have no authority to determine if a resolution is fair or just. That role and that authority are reserved for judges, juries, and arbitrators. But if mediators should not decide what is fair and just, why should they even think about those matters? Even learning only what the parties deem fair or unfair about past actions, or what is just or unjust about pending settlement proposals, without trying to impose any "correct" outcome, would leave the mediator with useless knowledge. How could it help the parties reach an agreement? And it would leave the mediator frustrated. If mediators were to allow themselves to develop their own sense of what is fair and just, they would either have to squelch that opinion or try to get the parties to act in accordance with it. Burying their opinions would lead to frustration and a nagging sense of internal discord. But if they try to get the parties to adopt their view, the resulting agreement would become that of the mediator, rather than the parties.

Disciplines

Dispute Resolution and Arbitration | Jurisprudence | Law | Law and Society | Legal Ethics and Professional Responsibility

Recommended Citation

Jonathan M. Hyman, Swimming in the Deep End: Dealing with Justice in Mediation, 6 Cardozo J. Conflict Resol. 19 (2004).
Available at: https://larc.cardozo.yu.edu/cjcr/vol6/iss1/4