One of the original aims of the modern mediation movement was to give parties “voice” in proceedings that related to litigation. In court parties have very little opportunity to directly speak, although they may give evidence. In mediation, in the facilitative model and many other models such as the transformative model, there is the opportunity for parties to tell the story of their dispute. How easily though in court connected mediation can this opportunity be curtailed through the presence of lawyers who may not wish a client to speak. Lawyers can be all too aware of the possibility that their client may divulge information that may “harm” their argument and could impact on any later litigation. But this opportunity for voice, a key notion in the idea of procedural justice, is one of the key reasons that mediation can be a very different process than court. The opportunity to tell a story can impact on settlement and give rein to emotional dialogue that may lead to more satisfaction with the process of mediation. There are other aspects of procedural justice that are also important to mediation i.e. respectful treatment; evenhanded or “neutral” treatment (acknowledging that neutrality is a contested term); trust and fairness. All of these aspects of procedural justice have an impact on the process of mediation. The theory can be used as a framework for improved party satisfaction; mediator practice and as a rationale for the wider use of mediation in our court system. Procedural Justice needs to be researched in Australia and internationally to highlight its benefits to mediation.
It is an extremely disappointing that lawyers have chosen to hijack the client role in mediations occurring ‘in the shadow of the law’. Whilst we know the power of telling the story, litigation lawyers have been consistently controlling – focussing on protecting their clients from…. themselves? the opportunity to reach an outcome that actually meets their interests? Lawyers’ risk aversion overpowers everything and mediations consistently end with a great deal of value left on the table.
We have not realised the promise of mediation and we lawyers have been the greatest impediment.