The La Trobe Law School warmly congratulates Dr Lola Akin Ojelabi on her recent publication in the Ohio State Journal on Dispute Resolution, entitled “Mediators and Substantive Justice: A View from Rawls’ Original Position” (Ohio State Journal on Dispute Resolution, Vol 30 2016 No 3, 391-430).
The piece addresses whether mediators should be concerned about questions of social justice. Waldman and Akin Ojelabi examine mediation’s increasing popularity in different jurisdictions, codes of conduct as well as scholarly debate on the relationship between mediation and justice. The authors conclude that most codes promote party autonomy and mediator impartiality leaving questions of substantive justice and outcome fairness to mediation parties.
The article’s main contribution is the application of John Rawls’ idea of the “original position” behind the “veil of ignorance” to determination of a mediator’s ethical responsibility in relation to questions of justice. According to Rawls, appropriate distribution of social advantage can be determined by a procedure which requires members of a given society to devise a social contract from the “original position” behind a “veil of ignorance”. If mediation parties were in the “original position” behind a “veil of ignorance” and asked to determine the sort of ethical responsibility a mediator should have, would they limit that responsibility to questions of procedural fairness or would they require that the mediator address substantive fairness issues as well? The authors conclude that a mediation party would require a mediator to intervene to prevent unjust outcomes. In sum, the mediator should act as a “safety net” in the process.
To obtain a copy of the Ohio State Journal on Dispute Resolution, please refer to their website.