The Concept of Justice in Mediation: A Psychobiography
27 Pages Posted: 12 Jun 2006 Last revised: 24 Mar 2009
Discussions of what justice means in mediation have a dialectical quality to them. At various points in the field's history, justice in mediation is thought to consist of fully maximized disputant self-determination. At other historical moments, a tentative consensus appears to recognize that justice in mediation requires normative content independent of the disputants' beliefs and values. What explains this dialectic?
One explanation might focus on exogenous forces that shaped initial visions of mediation justice, prompted intellectual re-assessments and forced new understandings that directly challenged the field's original ideological foundations. Another way to explain ongoing shifts in thinking about justice would focus less on external changes and more on the field's intellectual infrastructure. This story minimizes mediation's excellent adventure as it moves from an over-crowded community center to a municipal court building to a lavish law firm conference room. Instead, it looks at the relatively stable assumptions about private ordering and collective norms that animate leading mediation theorists' musings on mediation's goals and methods.
This article argues that the dialectic of justice in mediation reflects the divergent beliefs about human nature and legal regulation that anchor the thinking of some of the field's most influential scholars. In turn, these divergent beliefs reflect larger cleavages in the mediation community. This article pushes for a psychologically-minded approach, and urges we see our justice debates propelled, at least in part, by how optimistically or skeptically we assess the capability of individual parties and institutional actors in constructing fair outcomes from the raw material of human conflict.
Keywords: justice, mediation, social norms, self determination
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