Mediation and Justice: What Standards Govern?

Abstract

Analysis posits that the most compelling account of the mediation process supports, as its governing values, voluntariness, inalienability of welfare interests, publicity of outcomes, right to treatment as an equal, informed decision-making, and toleration of conflicting fundamental values. As such, mediation constitutes an example Rawls' "pure procedural justice": there are no criteria independent of these governing values, such as a projected jury verdict or judge's decision, that can be applied to assess whether parties reached the "right" result. Rather, any result they reach through mediation is fair. In this significant sense, a "just" outcome is whatever the parties, via mediation, mutually adopt.

Keywords: alternative dispute resolution

JEL Classification: K41