Mediators and Substantive Justice: A View from Rawls' Original Position

Abstract

This article explores substantive justice and mediation from the philosopher John Rawls' concept of the original position. Whether mediators do or should care about substantive justice is a question that continues to bedevil the field, theorists, and practitioners alike. In some parts of the world, opinion leaders and influential trade organizations have weighed in, promulgating ethics codes that, in large part, divest mediators of concern with the substantive justice of the agreements they facilitate. While consideration of a mediator's proper relationship to justice usually revolves around Kantian concerns for disputant autonomy, little attention has been paid to the role of more modern deontologists like John Rawls. This paper argues that as mediation becomes a fixture in a world of ever-increasing inequality, Rawls' central message gains resonance. Rawls' theory of justice held that society should strive toward equality of opportunity and that, where inequality exists, societal rules should be formulated to advantage the least resourced among us. In our view, mediation's ethical codes should be structured to protect the least advantaged of mediation's participants. In an effort to bring Rawls into the dialogue on mediation ethics, this essay places the mediation participant in the original position and asks how he or she might approach issues of substantive justice in a mediation process. It surveys, briefly, a number of ethics codes drawn from different regions in the world and notes that different jurisdictions have struck different balances regarding the mediator's relationship to justice. We ask, what would a code drafted by mediation enthusiasts operating under the "veil of ignorance" look like? And, given mediation's use in dispute contexts characterized by unequal distributions of power, why doesn't Rawls' theory of justice hold more sway?