Mediation and Social Justice

?Adapted from:

Robert A. Baruch Bush & Joseph P. Folger

MEDIATION AND SOCIAL JUSTICE: RISKS AND OPPORTUNITIES

27 Ohio St. J. on Disp. Resol. 1 (2012) [footnotes omitted]

[for the full article, see https://scholarlycommons.law.hofstra.edu/faculty_scholarship/643]

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I. THE CRITIQUE OF MEDIATION

The critique that mediation is inimical to the achievement of social justice has a very long history, dating back to the beginnings of the modern field in the 1970s. The main flaw in mediation for its critics was a feature seen as a virtue by mediation’s proponents—its informality. Mediation offered the opportunity for parties to engage in informal discussions, guided by skilled facilitators, and to address their problems by reference to their own needs and interests, rather than by reference to formal legal rules. This informality was indeed the feature that made possible mediation’s main benefit—the production of mutually beneficial resolutions of problems on the parties’ own terms. These benefits depended on mediation’s informal character: Its lack of both procedural and substantive rules….

However, the critics saw informality as a vice rather than a virtue…. [T]he lack of formal rules in mediation meant that mediators themselves could easily steer and pressure parties into agreements that were actually unfair to them—whether or not the mediators had intended that unfairness. The mandate to achieve agreements inevitably led mediators to use strategies, which they were explicitly trained to employ, that could easily ignore fairness concerns in the pursuit of a settlement per se.

Then, beginning in the 1980s, critics began to argue that the discretion and power placed in the mediator’s hands, given the informality of the process, was likely to work systematically against parties from minority and other have-not groups. In fact, mediators could strongly influence and even control the decisions made in mediation, by their interventions in the informal process, and studies provided strong evidence for the prevalence and impact of this kind of mediator influence and control. Given this influence, it was argued, mediators’ class biases probably affect mediation outcomes, and the effect is probably to the disadvantage of parties from minority groups, especially racial minorities. Other critics have made similar claims about injustice done to women in mediation, due to the operation of “unwritten rules” that consistently disfavor women and lead to unfair outcomes…..

II. THE “ACCOUNTABILITY” DEFENSE OF MEDIATION

In the earliest years of the field, practitioners made no claim that mediated agreements were substantively fair by some objective standard. The mediator’s duty of impartiality applied to the conduct of the process itself, but the only guarantee regarding outcome was that any agreement would be “mutually acceptable” to the parties. Whether the agreement was substantively fair enough to accept was up to the parties themselves; the mediator had no role in guaranteeing that fairness.?

Soon, however, a clear difference of approach emerged between those who felt the mediator bore no responsibility for fairness of outcome and those who felt, to the contrary, that the mediator was indeed “accountable” for a fair and just outcome, not just a mutually acceptable agreement. That difference of opinion first crystallized in an exchange between two major figures in the field’s development, both still very influential today -- Lawrence Susskind and Joseph Stulberg. Susskind argued that mediators could not ignore the potential for parties to make unwise decisions and therefore agree to unfair deals, and he suggested that the mediator was accountable to intervene in ways that reduced that risk of unfairness. . . . Stulberg countered that substantive intervention to ensure a fair agreement would contradict the mediator’s duty of impartiality, and even worse, compromise his or her ability to serve the central function of facilitating a mutually acceptable agreement between the parties.

Over time, the dominant view in the field has moved in the direction of Susskind’s “accountability” view of best practices in mediation -- that substantive fairness of outcome is indeed one of the mediator’s key responsibilities. . . [A]s the approach is generally understood and practiced by most mediators today, facilitative mediation incorporates the view that the mediator is accountable for outcome fairness . . . For a facilitative mediator, the aim is not simply an agreement, but an agreement that accounts for the needs and interests of all concerned. Such an agreement must obviously be one that avoids unfairness in the substance of the deal, and it is therefore part of the mediator’s job to monitor for and ensure such fairness, through a variety of methods.

While not all authorities agree on which methods to use, some of those suggested include: encouraging or steering the parties, through questions or otherwise, to consider the fairness/justice dimensions of issues being discussed or solutions being proposed; advising parties who lack relevant information, regarding legal rights or otherwise, to obtain that information before reaching any agreement (and even providing them with information); openly discussing the importance of?achieving just outcomes, in statements on the aims of the process; and directly suggesting or supporting specific proposals aimed at creating a fair outcome . . .?Beyond the other methods of accountability for substantive fairness, one specific method is emphasized, commonly referred to as “power-balancing.” It is at the heart of best practices, according to most authorities, who argue that it is a solid guarantee that mediation will not result in micro-level injustice in individual cases . . .

Despite all this, the best practices commitment to be accountable for substantive fairness faces several daunting obstacles in practice. First, the real world demand of client expectations often leads mediators to privilege settlement per se, with much less attention to the quality of that settlement. This is especially so when “client” means … an institutional client like a court, agency, organization or the like, whose primary interest is likely to be the speedy disposition of the case. If so, mediators serving such clients will feel constrained to concentrate on achieving a timely settlement, even if it means attending less to the substantive fairness of the settlement achieved. There is substantial evidence that this is in fact what occurs with mediators operating in such contexts.??Couple these findings with the likelihood that cases mediated for such institutional clients often involve parties of unequal power—divorcing husbands and wives, landlords and tenants, businesses and consumers, school officials and parents—and the likelihood emerges that pressured settlements in cases involving unequal parties result in substantively unfair outcomes. …Best practices of accountability for outcome fairness often take a back seat in practice to settlement-production demands.

Practice limitations also draw into question the claim of mediation’s defenders that mediators can promote social justice by power balancing.?As Stulberg argues persuasively, power-balancing introduces a practical incoherency that is likely to undermine the mediator’s ability to facilitate any kind of agreement, fair or otherwise. In effect, the power-balancing mediator becomes an advocate for one party; however, engaging in advocacy for one party risks losing the trust of the other party. Once that trust is lost, the mediator cannot work effectively to do other crucial tasks, including questioning or probing, challenging positions, reality testing, offering options—because one of the parties no longer is confident of the mediator’s impartiality or neutral motives.?

Paradoxically, power-balancing can result in injustice even when it seems to “work” to counteract unequal power in the mediation session itself. Assume that a workplace mediator uses power-balancing to achieve a fair agreement that an employee could not have attained without her help. But after the mediation ends, the parties return to the workplace, and outside the mediation room the inequality of power probably remains. That reality may render illusory the justice achieved in mediation, or even result in retaliation after the mediation. So power-balancing always involves risks that unfairness outside the room will persist – or even increase.

In sum, the critics are probably right about the risks posed to social justice by the use of mediation in cases where there is an imbalance of power between the parties. And the responses of mediation’s defenders are not persuasive, given the limits on those practices and approaches when faced with the practical constraints of real-world mediation….

III. SOCIAL JUSTICE AND MEDIATION: COMPATIBLE OR NOT?

For some who care about both mediation and social justice, the analysis above suggests that there is a fundamental incompatibility between the two. Mediation, because of its fundamental features and the real-world constraints on its practice, poses constant dangers of injustice. So those who care deeply about social justice must reluctantly admit that the use of mediation is a poor way to pursue it. In effect, this leads to the view that mediation should be avoided entirely in all cases that involve parties of unequal power, even if this means abandoning the use of mediation in many contexts where it is widely used today—family, workplace, consumer, discrimination, and other types of disputes. That is precisely the conclusion reached by some of mediation’s social justice critics.

Others, while they acknowledge that mediation is not capable of directly advancing aggregate social justice, still support the continued use of mediation, even in cases involving unequal parties—provided that certain kinds of mediation practices are followed. The basis for this view is the claim that, if these kinds of practices are used, they will minimize the risks of injustice….?One such approach uses what we call “transformative” practices, but which can be understood more broadly as “party-centered” or “party-driven” practices. We argue that mediation using party-centered practices can be supported in good conscience even by those concerned with social justice.?

The most fundamental principle of practice in a party-centered approach is that the mediator’s job is “to support, and never supplant, party deliberation and decision-making,” on every matter that presents a choice or decision in the mediation process, regarding process or outcome.?In short, practitioners do not take decisions away from parties, do not use interventions that intentionally shape or steer the discussion, and do not substitute their judgment for the parties’ on any matter, whether of process or substance. That is, the process is not mediator-driven, but party-driven. What mediators do, in this kind of practice, is to support the parties’ own process of presenting their views, thinking about what is being said (by themselves and each other), and making their own decisions on how to understand the situation, their options, and each other—and ultimately on what if anything they want to do about all of these things. In short, the essential role of the mediator is to support the parties’ conversation, and their deliberation and decision making, rather than to control, guide, or direct it in any way.

We have argued elsewhere that these practices help to strengthen and increase both party agency and interparty understanding, and that overall societal civility is thereby enhanced, all of which are important goals for parties and for the public.?Beyond these goals, however, and specifically in relation to the continuing concern for avoiding injustice to weaker parties in mediation, the use of party-driven practices like those described above has surprisingly positive impacts. First, no one is ever pressured by the mediator to accept an agreement in general, or any specific term of agreement; so if a “weaker” party feels for any reason that some aspect of a resolution would be unfair, they are perfectly free to reject it. Indeed, the mediator’s job includes “catching” any expression of hesitancy that may arise, helping parties to express the concerns behind their hesitancy (if they wish to do so), and supporting their decision to proceed or stop. In this way, parties themselves hold the ultimate defense against injustice—the ability to leave when they choose to do so—and that “right of exit” is fully supported by the mediator.

At the same time, the mediator does not “second-guess” the parties’ decisions to accept offers or terms of agreement, or their decisions about how to express themselves to each other, or what to demand or not demand from each other, whether as to substance or process. If an outcome appears “unjust” to the mediator, but that outcome is being accepted by a “weaker” party, the mediator does not force reexamination of the matter in order to “protect” the party from injustice. Similarly, if the discussion between the parties seems “unbalanced” due to what the mediator could see as a power difference between them, the mediator does not intervene to “balance the power” and put the parties on a “level playing field.” What the mediator does instead is to fully support each party, both in presenting their views as fully and powerfully as they choose to, and in using whatever manner of expression they choose—rational, emotional, or both.?And if parties should choose to refrain from expressing themselves, forcefully or at all, the mediator also supports them wherever they make that choice.

The result of this consistently supportive posture is that “weaker” parties are allowed, and helped, to make the expressive choices that they themselves decide are as effective as possible while still remaining safe. They are helped to make demands for fairness in ways that are culturally resonant for them, but that mediators insensitive to their culture might misunderstand or miss entirely. They are helped to be effective advocates for themselves, on their own terms, and as extensively as they choose. At the same time, they are not urged or induced into making assertions or demands that, while safe in the mediation room, may expose them to risks thereafter—and their own choices as to where safety lies, and thus where to stop pushing the stronger party, are fully respected.

In sum, if mediators consistently use specific practices that fully respect and support party decision making, on both substance and process, the risk of injustice is slight because the sources of those risks are removed. “Weaker” parties are not trapped in a risky process from which they can’t leave, in which they can’t express themselves fully or effectively, and where they are lulled into a false sense of safety by “protectors” who can’t actually protect them once they go home. Rather, they are supported in a process in which they can exercise their own voice to demand justice, their prudence to avoid dangerous provocation, and their freedom to leave if they feel that the process is leading to injustice—and they are accepted as the best judges of what justice is.

Thus party-driven, transformative practices in mediation, all based on and shaped by the fundamental principle of genuinely supporting party choice, are likely to avoid unfair outcomes in individual cases, even when the parties are of unequal power. So mediation need not be totally incompatible with social justice. Mediation can be used in a way that does not pose serious risks to justice, and party-driven practices in mediation support that possibility – in addition to supporting agency, understanding and civility.

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When mediation follows practices like those discussed in the previous paragraphs, an added possibility emerges: The possibility that it can support social justice not only at the micro but the macro level. To be very clear: Nothing in this article is meant to suggest that mediation is, by itself, a sufficient means of achieving systemic social justice gains. Rather, the formal legal process and the political process are likely the arenas most suited to gaining these kinds of aggregate changes. However, legal and political processes themselves may not be sufficient to achieve sustainable social change. Even when “have-not” groups win gains through those processes, the “haves” may be and often are in a position afterwards to vitiate those apparent gains. Perhaps a key reason for this “taking back” of justice gains is the fact that, in the legal and political processes, contending groups rarely change their views of themselves and each other. If anything, those views probably harden. So even when power changes hands through legal and political processes, efforts to take it back can be expected, and they often succeed.

Against this background, mediation may indeed have a useful supportive role to play in the pursuit of aggregate social justice, by providing a venue where actual changes in attitudes and perceptions can occur, over time and on a micro-level, changes that ultimately lay a foundation for more sustainable macro-level change.?That is, party-driven conversations supported (but not directed or controlled) by mediators can and do address questions of justice per se, in a unique fashion. In mediation of this kind, parties can and do raise, discuss, and offer challenges to each other, in their own chosen modes of discourse, about perceived inequity in the distribution of resources, rights, and obligations. They engage these issues assisted by a third party skilled in supporting, but not controlling, communication. People are supported in thinking through the risks they want to take in raising issues of inequity or pushing for justice. They can speak and hear about the dehumanizing effects and consequences of established social structures, and ask each other to respond to these concerns. And they can consider the resources and personal will they have, or do not have, to change such structures. The results of this kind of supported dialogue, inclusive of questions of justice, can be powerful both within and beyond the mediation room.

Support for party-driven dialogue about justice can result in “weaker” parties claiming justice on their own, and in “stronger” parties doing justice on their own. Indeed, mediators who use party-driven practices offer compelling accounts, from actual cases, of how parties themselves do “justice from below” in this way. The resulting justice and realignment of power, one can argue, is qualitatively different than if it had been achieved by the direction of an outsider. It is different because it is freely chosen, on all sides, and thus implicates powerful moral dimensions of human agency and connection, on all sides: Being protected from injustice by an outsider is very different than making the moral choice to demand justice for oneself. Being forced to do justice by an outsider is very different than making the moral choice to do justice of one’s own accord. When parties themselves claim justice and do justice in mediation, by their own choice and without outside direction, the process will almost certainly involve genuine and positive changes in their views of themselves and each other.?

Moreover, parties of unequal power who have found the strength to make strong justice claims in mediation, and the empathy to be responsive to them, are more likely to act with the same kind of strength and empathy in the future, not only in their private lives but in the public square. This would mean that changed, more positive, views of self and other achieved in mediation would percolate into other situations, including the legal and political arenas where social justice is in contention. The result could be that when justice gains are won in those larger venues, the “have-not” winners are more capable of holding onto those gains, and the “haves” are less inclined to look for ways of reversing them—because the joint impact of changes in rights and power in the larger venues, and changes in attitudes in mediated conversations, would combine to support social justice gains that are sustainable rather than temporary and reversible. ?In this way, mediation can indeed be compatible with, and can support, both justice “in the room” and justice “beyond the room”.

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