Ono Academic College Faculty of Law
54 South Texas Law Review 281 (2012)
The article discusses the meaning of fairness in mediation. Mediation academics and the drafters of codes of conduct for mediators frequently employ fairness terminology but tend not to define it. As a result fairness discourse in mediation literature is incoherent, inconsistent, and confusing. Moreover, in the absence of a defined meaning of fairness it is difficult to evaluate the strength of fairness-based arguments which commentators make. No author has yet offered a coherent theory of fairness in mediation.
The article suggests a new and innovative approach for understanding mediation fairness. Drawing on literature from philosophy, morality, professional ethics, jurisprudence, and mediation the article identifies perspectives of fairness which clarify the meaning of fairness in mediation, provide tools for a better understanding of what codes of conduct and mediation literature on fairness mean when they make assertions of unfairness, and make it possible to evaluate the force of these assertions.