WHAT IS FAIR IN MEDIATION?

Mediators strive to adhere to ethical standards of practice.

Professional organizations and units of government have established ethical standards for mediators. Most of these standards emphasize voluntary participation, confidentiality, self-determination, freedom from
coercion, as well as, neutrality and impartiality.

Some mediators have begun to raise questions over a seeming contradiction regardng the concept of fairness. Does it refer to procedural fairness, as in providing a quality process, or does it refer to substantive fairness in terms of the final outcome, or does it include both?

For example, when two siblings are in private mediation to divide their parents’ estate, they agree to an 80/20 split. Neither divulged any information explaining the unequal division. The mediator believes lawfully each is entitled to 50%. If the mediator has guided them through a procedurally fair process, do they have any further responsibility? Should the mediator recommend the parties seek advice from an attorney or provide legal information? Should she give her opinion as to the agreement?

Some ethical guidelines require procedural fairness or a balanced process, whereby the parties may participate and not be coerced, but do not require substantive fairness of the parties’ final agreement.

Some mediators would argue the emphasis should not be exclusively on process, but that the mediator is obligated to ensure the parties are fully informed in order to meet the ethical requirement of self-determination.

Some mediators stand by the standard of procedural fairness; othes are concerned that mediator neutrality and impartiality can allow agreements to develop, which are not substantively fair. From this perspective, a mediator’s ethical responsibility to ensure an informed decision may require violating complete neutrality and impartiality.