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Just Court ADR

The blog of Resolution Systems Institute

Posts Tagged ‘fairness’

Pushing Fairness, Failing Mediation

Jennifer Shack, July 30th, 2010

What is the proper role of a mediator? Is it appropriate for mediators to recommend sanctions against one party for not negotiating in good faith? Should mediators attempt to get similar outcomes for similar cases? These two questions, which arose from two articles on the Nevada Foreclosure Mediation Program published in the Reno Gazette Journal in July, highlight that age-old question of whether mediators can be fair and neutral at the same time (Unfortunately, the articles are no longer available online). In the first article, a mediator complains of not being assigned cases because he has recommended sanctions – and states that mediators should be able to do so. In the second, a legislator states, “If you have a situation where two homeowners share the same facts, and two different mediators get different results, that shouldn’t be happening…I think the court will have to step in with some rules to guide mediators so that they are all in step with the program.”

These two statements share a common thread – the desire for mediation to be fair in a way that it perhaps cannot be. They demonstrate the tension between basic tenets of mediation – neutrality and self-determination – and the perception of fairness. (more…)

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