Mediation and Justice

Dame Hazel Genn

Dame Hazel Genn

Geoff Sharp has once again pointed me towards an interesting paper in Scottish cyberspace, this time on “Mediation and Social Norms” by Charlie Irvine.  (Previously, he pointed me towards a discussion paper for union members, Should I try mediation? that was written by David Bleiman, a union official.  That led to an interesting exchange on the stages in the mediation process and the attendance of mediation by  union representatives.)

Irvine’s paper is in response to certain claims made by Dame Hazel Genn, the Dean of Laws at University College London, in the course of the Hamlyn Lecture that she delivered in December 2008 in Edinburgh.  The title of Dame Hazel’s lecture was “ADR and Civil Justice: What’s justice got to do with it?” — it suggested that mediation is not about just settlement, but rather it is just about settlement.

The proposition that Irvine objected to most was, “Mediators have no interest in justice and fairness.” In seeking to counter this assertion, Irvine puts forth two arguments in his paper.  The first is the discontinuity between mediation rhetoric and mediation as it is practised, at least in the United Kingdom.  Irvine’s “point is a simple one: mediation rhetoric still, by and large, features the norm-generating model while, in practice, much UK mediation has become norm-educating or even norm-advocating.”  The second argument is that mediation is too complex an activity to reduce to ethical codes; in the moment-to-moment interactions in mediation, mediators must rely on their core values to address ethical dilemmas.

In considering Irvine’s two arguments, it is helpful to re-read a 20-year old paper by Baruch Bush, one of the two originators of the transformative approach to mediation:

Bush, Robert A. Baruch (1989). Efficiency and protection, or empowerment and recognition?: The mediator’s role and ethical standards in mediation. Florida Law Review. 41, 253-286.

In this paper, Bush outlines three conceptions of the mediator’s role: efficiency; protection-of-rights; and empowerment-and-recognition.

The efficiency conception holds that the mediator’s primary role, and the main value of the mediation process, is to remove litigation from the courts by facilitating agreements in as many cases as possible.  This reduces court congestion, frees scarce judicial time, and economizes on public and private expense.
[. . .]
. . .the protection-of-rights conception holds that the mediator’s primary role, and the main value of of the mediation process, is to safeguard the rights of the disputing parties and potentially affected third parties by imposing various checks for procedural and substantive fairness on an otherwise unconstrained bargaining process
(Bush, 1989, p. 260).

When Dame Hazel asks what justice has to do with ADR and suggests that mediation is just about settlement, she is essentially reflecting the efficiency conception of  mediation and the mediator’s role.  When Irvine responds that mediation practice in the UK has become norm-educating and norm-advocating and that mediation rhetoric has to be updated to more accurately reflect practice, he is essentially advocating a protection-of-rights conception.  Now Bush argues, and I agree, that both these conceptions are flawed in a number of important respects.  The values of efficiency and of protection of rights are interests that professions other than the mediator can advance more effectively.

If efficiency is the concern, an arbitrator can be more effective than a mediator in removing cases from court and disposing of them expeditiously and finally. . .On the other hand, if protection of rights is the primary concern, a judge can do so far more effectively than a mediator.  As many have observed, the infomality and privacy of mediation, and its de-emphasis on substantive rules of decision, inevitably place rights and fairness at risk.  By contrast, adjudication’s emphasis on procedural formality, substantive rules, and neutral supervision of zealous advocates assures greater protection of rights and fairness than mediation could possibly afford (Bush, 1989, pp. 262-3).

The question then is what value if any is there in the mediator promoting either of these two interests that are more effectively the province of other professions.  What is more, there is an internal clash between these two interests — they cannot be advanced at the same time.

If we adopt the efficiency conception … the effect is to create a role devoid of any clear ethical constraints on mediator behaviour.  Mediators become little more than case-movers; the only performance standards are their agreement rates and time-cost figures.
[. . .]

On the other hand … mediators who try to protect substantive rights and guarantee that agreements are fair must adopt substantive positions that inevitably compromise their impratiality, either in actuality or in the parties’ eyes (Bush, 1989, pp. 264-5).

With respect to Irvine’s second argument that mediators must rely on their core values to treat ethical dilemmas, I believe this begs the question.  The core values cannot be asserted as a means of dealing with problems when the core values themselves have not been adequately argued and accepted.  Personal ethics, and these vary from individual to individual, are not always coextensive with professional ethics.  Physicians and lawyers, among other professions,  have duties to their patients and clients that are beyond personal responsibilities.  Similarly, mediator ethics needs to be argued within the context of the role served by the mediator.  If Bush is right, and again I think he is, then the ethical standards of the mediator can be found neither in the framework of the efficiency conception nor in that of the protection-of-rights conception.