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What role does fairness play in mediation?

Updated: Feb 15, 2022

In this post Gary Webber considers the role that fairness plays in mediation.

Two brothers had at one time been great friends. So much so that they bought a commercial property with the intention of running a business together.

Sadly, they fell out and into dispute. They agreed that the property should be sold but could not agree on the financial implications. Who had put in what? Who had done most? Who should get what?

As with most mediations, the brothers, their lawyers and accountants started the day by focusing on their respective “positions". They were right, they had a strong case. The other side’s was clearly weak. Each brother, supported by his team, emphasised what he had contributed, what he was entitled to, what was fair.

As the day wore on things began to shift. Slowly but surely everyone began to engage in deal making. Each brother started to think about what he needed, what was really important in his life, what was acceptable, what he could live with. The mediation started to move towards settlement.

However, it was not a straight-line process - it never is. Nearly every time some figures were proposed there was some reversion to a sense of fairness. Each brother did not just look at what the proposed deal meant for him but also what it meant for his sibling. “He is getting so much more than me”. “I have moved much further than him”. “It is not just. It is not fair.”

Even at the end of the day one of the brothers hovered over the typed-up agreement, pen in hand, for a full 15 minutes, calculating again and again, not what he was getting but what his brother would end up with, until his son finally said “Dad, you are looking at it from the wrong end of the telescope”.

However much we try to get clients to focus on needs and what is really important to them, to point out the risks of trial etc., there is no getting away from how strong a sense of fairness is to people. It is a basic human need. Even if a party will get a substantial benefit out of a settlement, not least the end of the dispute and the ability to move on, there will be a reluctance to agree to the deal if there is a perception that the other side will get more.

As the other side will probably be doing the same thing it is therefore a helpful exercise for parties to think about what the other side may perceive as fair and to shape their offers accordingly.

This youtube clip of an experiment with monkeys demonstrates it beautifully.

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