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Must Mediated Settlements Be Fair?

NCJ Number
Negotiation Journal Volume: 4 Issue: 1 Dated: (January 1988) Pages: 15-17
R Coulson
Date Published
3 pages
The 'fairness' of any mediation outcome must be analyzed in the context of specific application rather than as an abstract, generic process.
In divorce mediation, for example, where one spouse exerts unfair pressure over the other, perhaps prejudicing the children's interests, the mediator should take steps to enhance the fairness of the negotiations and any settlement. On the other hand, mediators attempting to settle insurance claims, working with the claimant's lawyer and the insurance carrier, are seldom concerned with such issues. Although a mediator's concern with and implementation of 'fairness' will vary according to the nature of the issue, one of the better general guidelines for mediators was issued by the Hawaii State Supreme Court in April 1986. It states that a mediator should 'raise questions for the parties to consider as to the reality, fairness, equity, and feasibility of proposed options for settlement.' Also, the mediator should disclose any biases or relationship with 'the parties or participants or others affected by the dispute.' Hawaii's mediation standards further advise that 'where a mediator believes the best interests of an absent party are not being served and where the parties themselves refuse to consider inclusive participation, a mediator is encouraged to withdraw his or her services.'


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