“FAIRNESS”: SOMETHING TO THINK ABOUT
“But, it’s not fair” the party exclaims in response to a settlement proposal proffered by the mediator. To the other party making the offer, it is, indeed, “fair.” It is simply a question of how one defines “fairness.”
In a recent mediation training course, Nina Meierding, Director of Mediation Center For Valley Law in Ventura, CA explained that there are at least three different ways to define “fairness.” The first one, and the one with which Americans are most familiar is defined by the law – what do the statutes and cases say is “fair?” What should be the result according to law?
But other definitions exist. A second one uses “equity”– what would be the equitable way to resolve the matter? This decision is based on what each person contributed in terms of time, or money, or skills or creativity or amount of sacrifice. Consequently, while the law might dictate that two partners share 50% - 50%, equity may dictate that the distribution between them be 75% - 25% because the first partner put much more time and energy into the project than did the second partner.
Finally, “fairness” can be based solely on cultural values; that is, based on the status and/or gender of the person within the culture or based on “need” rather than on the contribution made by the individual. As a result, while ‘Little” John may have contributed the most to the success of the project, “Big” John will be given the lion’s share of the proceeds because he is the elder of the village or the community and deserves it out of respect.
So. . . in determining whether an offer of compromise is “fair,” put it into context: are you defining “fairness” based upon the “law,” or upon “equity” or upon “cultural” values or “need.” Armed with an understanding of which framework each party is using as her point of reference, you will be able to analyze the “fairness” of the offer and move towards a resolution.
. . . Just something to think about
