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Justice in Mediation

Justice in Mediation. Process and outcome control. Adjudication. Judge. Party B. Party A. 6. Mediation. Mediator. Party B. Party A. Subjective justice. Proposals. Conciliation (Kalowski). Objective justice. Conciliator. Legal doctrine. Precedent. Statute. Party B. Party A.

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Justice in Mediation

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  1. Justice in Mediation

  2. Process and outcome control Adjudication Judge Party B Party A 6

  3. Mediation Mediator Party B Party A Subjective justice

  4. Proposals Conciliation (Kalowski) Objective justice Conciliator Legal doctrine Precedent Statute Party B Party A

  5. Mediation (Irvine, with thanks to Waldman) Mediated justice? Mediator What’s normal? What’s fair? Party B Party A What’s practical?

  6. ‘The belief that mediators are responsible for ensuring fair outcomes is ..... highly contentious’ ‘Unlike an adjudicator, the mediator is constrained by neither procedural rules governing process, nor substantive rules determining outcome.’ Ellen Waldman

  7. The challenge Hazel Genn, (2010) “What is Civil Justice For? Reform, ADR, and Access to Justice.” Yale Journal of Law and the Humanities, Vol.24, Issue 1

  8. US version Paul Steven Miller, (2001) ‘Mediation and the Americans with Disabilities Act’ 62 Ohio State Law Journal 11-29

  9. What is Justice?

  10. Fourfold Model

  11. What about substantive justice?

  12. A serious study of mediation can serve, I suggest, to offset the tendency of modern thought to assume that all social order must be imposed by some kind of “authority” Lon Fuller ‘Mediation: Its Forms and Functions’ 44 S Cal L Rev 305 (1970-71) p.315315

  13. Mediation’s radical move: • It offers people a voice • in the outcome of their disputes • in the criteria by which that outcome is evaluated

  14. Compared to what? “Mediation, as a process in which the parties control the outcome, avoids reliance on the vagaries, expense, and unpredictability of a court and jury judgment.” Miller 2001, p.14

  15. “As the resolution is crafted and agreed upon by the parties themselves, there is a greater likelihood that it will resolve the problem and allow the disabled employee to succeed at the job.” Miller 2001, p.15

  16. ‘I argue that mediating ethically requires the constant generation of internal norms appropriate for a specific mediation and set of parties’ (Waldman)

  17. Waldman’s typology Ellen Waldman, 1997, 48 Hastings Law Journal, 704-769

  18. In increasingly fractious and normatively contested societies could mediation provide more, rather than less, justice?

  19. 'The key issue is by what standards should we (the courts, the public, and academic critics) judge the processes chosen and the ultimate results. When is a settlement just and to whom must it appear so?’ C Menkel-Meadow, ‘Whose Dispute Is It Anyway?’ 83 Georgetown Law Journal 2663, @2691

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