Love, Lela P.

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Preface to the Justice in Mediation Symposium

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Yeshiva University, Cardozo School of Law LARC @ Cardozo Law Articles Faculty 2004 Preface to the Justice in Mediation Symposium Lela P. Love Benjamin N. Cardozo School of Law, love@yu.edu Follow this and additional works at: https://larc.cardozo.yu.edu/faculty-articles  Part of the Law Commons Recommended Citation Lela P. Love, Preface to the Justice in Mediation Symposium, 5 Cardozo Journal of Conflict Resolution 59 (2004). Available at: https://larc.cardozo.yu.edu/faculty-articles/104 This Article is brought to you for free and open access by the Faculty at LARC @ Cardozo Law. It has been accepted for inclusion in Articles by an authorized administrator of LARC @ Cardozo Law. For more information, please contact christine.george@yu.edu, ingrid.mattson@yu.edu. \\server05\productn\C\CAC\5-2\CAC201.txt unknown Seq: 1 12-MAY-04 15:17PREFACE TO THEJUSTICE IN MEDIATIONSYMPOSIUMLela P. Love *On March 12, 2004, the Benjamin N. Cardozo School of Lawheld a symposium on Justice in Mediation.  The papers below re-present the first group of articles emanating from that event.  Morearticles will follow in the next issue of the Cardozo Journal of Con-flict Resolution.Interestingly, in retrospect, one of the motivations for thisevent was a desire to celebrate the contributions of mediation toour system of justice.  In 1984, Professor Owen Fiss described set-tlement and alternative dispute resolution (“ADR”) generally as“a capitulation to the conditions of mass society” which “should beneither encouraged nor praised.”1  This Symposium, twenty yearslater, was envisioned partially to answer Fiss, and to articulate thejustice rationale of mediation.All assumptions are dangerous.  The best-laid plans evolve inunexpected ways and reach unforeseen destinations.  As you willfind, most of the papers do not celebrate justice in mediation, butrather criticize some aspect of mediation and its capacity to deliverjustice.  Mediation on the ground (in the courts) has proven differ-ent from mediation in theory or as practiced in settings where closewatch is kept on goals other than settlement.  The dissonance be-tween what mediation promised and what is being delivered, par-ticularly in the courts, is described in these articles.Another motivation for the Symposium was to highlight theimportance of justice in all dispute resolution processes.  This goalwas met, in that all speakers and papers addressed the importanceof delivering justice.Justice is important because if we fail to achieve it, concretecosts follow.  In a 1984 article on the goals of civil justice, ProfessorBaruch Bush laid out a number of goals of civil justice, amongthem: equitable distribution of society’s resources (including powerand money); protection of individual rights; maintenance of publicorder; the development of human relations; and the perceived le-* Lela P. Love is Professor of Law and Director of the Kukin Program for Conflict Resolu-tion at Benjamin N. Cardozo School of Law.1 Owen M. Fiss, Against Settlement, 93 YALE L. J. 1073, 1075 (1984).59\\server05\productn\C\CAC\5-2\CAC201.txt unknown Seq: 2 12-MAY-04 15:1760 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 5:59gitimacy and cost effective administration of public institutions.2When these goals (individually or in the aggregate) are not met,costs arise.3  For example:~If we fail to resolve conflicts and end hostilities between peo-ple and between groups and to distribute society’s resources inan equitable manner, we incur costs of public disorder and dis-parity.4  We see that most vividly in Iraq, in Israel, and, ofcourse, brought home most visibly here in New York City onSeptember 11, 2001.~If we fail to promote mutual tolerance, respect and apprecia-tion—that is, social solidarity—as we process disputes, we incurenmity costs, including anxiety, depression, distrust, decreasedproductivity, unpleasant interactions, and ultimately public dis-order costs of police, property and personal damage.5~If our institutions and processes fail in being perceived as legit-imate and fair, we incur disaffection costs, such as disengage-ment, obstruction, and ultimately revolution (though ideallyevolution).6Hamlet, who saw his father’s murderer take his father’s wifeand throne, captured the cost of injustice by saying he had “baddreams” from which he could not escape.7  The world has “baddreams” where injustice runs rampant.Despite the importance of justice and systems to deliver it, jus-tice is hard to define.  In searching for definitions and reflectionsabout justice, there seemed to be universal consensus that justicewas important, but near universal lack of any precise formulationof the concept.  For example:~James Madison in 1788 said: “Justice is the end of government.It is the end of civil society.”82 See Robert A. Baruch Bush, Dispute Resolution Alternatives and the Goals of CivilJustice: Jurisdictional Principles for Process Choice, 1984 WIS. L. REV. 893, 908 (1984).3 See id.4 See id. at 936-37.5 See id.6 See id. at 937-38.7 See William Shakespeare, The Tragedy of Hamlet Prince of Denmark (1601), re-printed in WILLIAM SHAKESPEARE:  THE COMPLETE WORKS (S. Wells & G. Taylor eds.1986).8 FEDERALIST NO. 51 (James Madison, sometimes attributed to Alexander Hamilton)(1788), in Jacob E. Cooke, ed., The Federalist (Wesleyan 1961).\\server05\productn\C\CAC\5-2\CAC201.txt unknown Seq: 3 12-MAY-04 15:172004] PREFACE TO JUSTICE IN MEDIATION 61~Thomas Jefferson said several decades later: “I believe . . . that[justice] is innate, that the moral sense is as much a part of ourconstitution as that of feeling, seeing, or hearing.”9~Daniel Webster echoed Madison: “Justice . . . is the great inter-est of man on earth.  It is the ligament which holds civilized be-ings and civilized nations together.”10~The great judge, Learned Hand, came close to a definitionwhen he said: “Justice, I think, is the tolerable accommodationof the conflicting interests of society. . .”11~We all owe great thanks to Professor Nancy Welsh for makingmore concrete the meaning of procedural justice.12While justice is hard to define, mediation itself is also difficultto define.  You will find definitions that sound simple.  Forexample:~Josh Stulberg, in his book Taking Charge/Managing Conflict,says: “Mediation is a process whereby a neutral intervener helpspeople involved in a dispute develop solutions that are accept-able to them.  Unlike a judge or an arbitrator, the mediator hasno authority to impose a binding decision on the disputants.”13~Carrie Menkel-Meadow in her book on Mediation says: “In itssimplest and purest form, mediation is a process of facilitatednegotiation among two or more parties, assisted by a third-partyneutral, to resolve disputes, manage conflict, plan future trans-actions or reconcile interpersonal relations and improvecommunication.”14But these definitions, and others like them, do not answer thequestions our Symposium panelists posed and struggled to answer:what does the mediator do if one party is more powerful than the9 Letter from Thomas Jefferson to John Adams (Oct. 14, 1816), in 2 THE ADAMS-JEFFERSON LETTERS 492 (Lester J. Cappon ed., 1959), cited in GARRY WILLS, INVENTINGAMERICA: JEFFERSON’S DECLARATION OF INDEPENDENCE 204 (1978).10 DANIEL WEBSTER, ON MR. JUSTICE STORY, 300 (1845), in FAMILIAR QUOTATIONS300 (John Bartlett ed., 10th ed. 1919).11 Phillip Hamburger, The Great Judge, LIFE, Nov. 4, 1946, at 122-23 (quoting JudgeLearned Hand).12 See Nancy A. Welsh, Making Deals in Court-Connected Mediation: What’s JusticeGot To Do With It?, 79 WASH. U. L. Q. 787 (2001); Nancy A. Welsh, Disputants’ DecisionControl in Court-Connected Mediation: A Hollow Promise Without Procedural Justice, 2002J. DISP. RESOL. 179 (2002).13 JOSEPH B. STULBERG, TAKING CHARGE / MANAGING CONFLICT 5 (1987).14 CARRIE MENKEL-MEADOW, Introduction to MEDIATION: THEORY, POLICY ANDPRACTICE xiii (The International Library of Essays in Law & Legal Theory, 2d Series,2001).\\server05\productn\C\CAC\5-2\CAC201.txt unknown Seq: 4 12-MAY-04 15:1762 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 5:59other or if one party is endowed with more dominant and accessi-ble cultural myths?15  Should mediators be concerned about thejustness or fairness of mediated outcomes?16  What if minoritygroups consistently get less money in mediation?17  Has mediationundergone an “ugly transformation”18 and become distorted by itsblending with the judicial system?  Have mediators becomeblinded by a quest for settlements, so that “rapid retreat to cau-cus,” a tendency to incorrectly evaluate cases—or evaluate withminimal information—and manipulative moves to obtain particularsettlement structures have become prevalent features of a processreinvented in the civil court context?19  Is mediation headed to-wards decadence or even disappearing under “a unified regime oflaw and mediation”?20  Are “repeat players,” who know mediators’“tricks” unduly advantaged as contrasted with “one-timers”?21What is the connection between legal norms and justice in a systemthat defers to whatever norms parties experience as most relevantand powerful?  If mediation is primarily a forward-looking process,what about the past and addressing injustices that occurredthere?22  If mediation is conducted in private, how can society en-sure that “justice” is being done?  Has the privacy of mediationpermitted the growth of abusive behaviors by mediators and attor-neys– behaviors that would not be tolerated in a public forum?23Who should be qualified to mediate?  What should mediators do toprevent bullying and lying or to promote equality and fairness?Are there some situations that should not be mediated, that should15 See Isabelle Gunning, Diversity Issues in Mediation: Controlling Negative CulturalMyths, 1995 J. DISP. RESOL. 55, 76 (1995).16 This question has been well framed by two classic articles taking different positions.Compare Lawrence Susskind, Environmental Mediation and the Accountability Problem, 6VT. L. REV. 1, 46 (1981) (arguing the mediators should protect the interests of absent orunderrepresented third parties and that mediators should ensure that agreements reachedare fair, stable and optimal), with Joseph B. Stulberg, The Theory and Practice of Media-tion: A Reply to Professor Susskind, 6 VT. L. REV. 85, 117 (1981) (arguing that a mediatormust be committed to a neutral posture with respect to outcome).17 See Isabelle Gunning, Know Justice, Know Peace: Further Reflections on Justice,Equality and Impartiality in Settlement Oriented and Transformative Mediations, 5 CAR-DOZO J. CONFLICT RESOL. 89 (2004).18 James Coben, Gollum, Meet Smeagol: A Schizophrenic Rumination on Mediator Val-ues Beyond Self-Determination and Neutrality, 5 CARDOZO J. CONFLICT RESOL. 65 (2004).19 See id.20 See Jacqueline M. Nolan-Haley, The Merger of Law and Mediation: Lessons Learnedfrom Equity Jurisprudence, _ CARDOZO J. CONFLICT RESOL. _ (forthcoming 2004).21 See Coben, supra note 18.22 See Carrie Menkel-Meadow, Past and Future in Mediation, 5 CARDOZO J. CONFLICTRESOL. 99 (2004).23 See Nolan-Haley, supra note 20.\\server05\productn\C\CAC\5-2\CAC201.txt unknown Seq: 5 12-MAY-04 15:172004] PREFACE TO JUSTICE IN MEDIATION 63remain public so that public precedents can be crafted?  Domediators generate willingness to settle by trashing the justice sys-tem,24 a practice hardly connected with notions of justice?  Thetopics addressed under the theme of justice in mediation are aneclectic range of concerns around these and other issues.  Thethoughtful Symposium scholars who raise these issues, all of thempioneers in the development of the mediation field, happily try toanswer their own questions in the essays that follow.24 See Nancy A. Welsh, The Place of Court-Connected Mediation in a Democratic Jus-tice System, 5 CARDOZO J. CONFLICT RESOL. 119 (2004).\\server05\productn\C\CAC\5-2\CAC201.txt unknown Seq: 6 12-MAY-04 15:17

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