Plaintiffs file lawsuits seeking “justice”. Defendants respond, stating they are seeking “justice” as well. Both come to mediation, seeking “justice”. When I am told this, that each side wants “justice”, I am not sure how to respond because I do not know exactly what that word means.
An article by Jonathan M. Hyman and Lela P. Love, 9 Clin. L. Rev. 157, 158-174 (2002) entitled “If Portia Were A Mediator: An inquiry Into Justice in Mediation” sheds light on my quandary and may, in fact, help solve it. (If Portia Were a Mediator 9 Clinical L Rev 157 ) The first point that the authors make is quite salient: “…justice in mediation is different from justice in adjudication.” (Id. at 160-161).
In a court of law, i.e. at a trial, the justice comes “from above” (Id.) — from the judge or jury. Each applies statutes or rules or other legislatively or judicially created standards to the “facts” of the case and makes a decision that produces a result. Thus, “justice” in this setting comes from two sources: the rules, laws or standards that are applied and the process used to apply them. (Id.) In seeking this “justice”, the parties are restricted in which issues may be presented for trial, and how they may be presented. The rules of evidence, including relevancy are paramount. (Id.)
By contrast, in a mediation, “justice” comes from “below”—from the parties themselves. As the authors explain:
The rules, standards, principles and beliefs that guide the resolution of the dispute in mediation are those held by the parties. The guiding norms in mediation may be legal, moral, religious, or practical. In mediation, parties are free to use whatever standards they wish, not limited to standards that have been adopted by the legislature or articulated by the courts. (Id. at 160.)
To obtain this “justice” at mediation, the parties may discuss any issue they wish, in any order they wish, and in their discussions, include both relevant and seemingly irrelevant information. Neither the rules of evidence apply nor are the parties concerned with whether their discussions fit neatly into a claim for relief, a cause of action or an affirmative defense as pleaded in their lawsuit (Id. at 161.) They do not have to worry about authenticating a document or finding an exception to the hearsay rules of evidence. Rather the rules for information gathering and issue resolving are the applicable ones. (Id.)
Thus, the definition of “justice” in a mediation is the one given by the parties themselves in whatever way they “…experience, articulate and embody
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