Defending the Weak and Fighting Unfairness: Can Mediators Respond to the Challenge?

Abstract

As mediation gains in popularity as a tool for resolving disputes, and particularly as a substitute for court decisions, some have questioned mediation's ability to assure fairness of process and outcome. Others have argued that the main strength of mediation lies in the power it gives the parties to invent their own approach to resolving their dispute, leaving little room for mediators to impose their own notions of fairness on the process. This article examines the extent to which mediators have an obligation to address issues of fairness in the processes they manage. Through a functional and context-based analysis of mediation, the author proposes a problem-solving approach to resolving fairness concerns.

Keywords: mediation ethics, power and ADR, fairness in mediation, mediator duties