I recently found an interesting and possibly invaluable quote that may be worthy of our attention concerning peacemaking, conflict and ultimate restoration.
“Peace is not just about the absence of conflict; it's also about the presence of justice. ... A counterfeit peace exists when people are pacified or distracted or so beat up and tired of fighting that all seems calm. But true peace does not exist until there is justice, restoration, forgiveness. Peacemaking doesn't mean passivity. It is the act of interrupting injustice without mirroring injustice, the act of disarming evil without destroying the evildoer, the act of finding a third way that is neither fight nor flight but the careful, arduous pursuit of reconciliation and justice. It is about a revolution of love that is big enough to set both the oppressed and the oppressors free.” Common Prayer: A Liturgy for Ordinary Radicals, Shane Claiborne, Jonathan Wilson-Hartgrove
We often talk about peacemaking while neglecting to address the ultimate goal of justice, restoration and forgiveness. Without justice, there can be no restoration or forgiveness. Without restoration and forgiveness we have accepted an empty victory even if the parties in mediation reach an ultimate “settlement”.
I’m curious whether our students recognize and appreciate that mediation is more than getting the parties to “yes”. I confess that I may have failed to emphasize this important distinction between a mere settlement and justice. We emphasize to students the benefits of mediation over traditional litigation. These benefits include the cost savings of mediation, the perils of litigation and other advantages that arguably have a tenuous relationship with justice.
Perhaps we can find a way to include a metric in student mediation competitions to determine whether an agreed upon settlement has indeed resulted in justice, restoration and forgiveness. Admittedly, this will not be an easy process. “Justice” cannot be easily defined. The famous attorney, Clarence Darrow, even went so far as to state: “There is no such thing as justice, in or out of court.” Justice could be simply defined as an equitable, fair or just result.
The related issue of whether a mediator has a responsibility beyond reaching an informed settlement has troubled me for some time. I would like to start a conversation as to the ethical obligation of a mediator when a settlement appears to favor one party over another. How does an ethical mediator address an imbalance of power between the parties? It is inevitable that attorneys will have varying degrees of skill and abilities in the course of legal representation. Should a mediator attempt to “level the playing field” when faced with a substantial imbalance of power?
I only raise the above questions to start a dialog as to how we would impress upon our students the importance of justice in the mediation process and to consider the responsibility of the professional mediator when faced with an unfair settlement and or an imbalance of power.
Richard E. Custin, JD, LLM, is a Clinical Professor of Business Law & Ethics, and Affiliate Professor of the Joan B. Kroc School of Peace Studies at the University of San Diego. He is an attorney, certified mediator and Board member of the InterNational Academy of Dispute Resolution.