Does Mediation Deliver Justice? The Perspective of Unrepresented Parties

This study examines the justice thinking of unrepresented people who have taken part in mediation. The context is two mediation services, serving Scotland’s two largest courts, from which the twenty four participants were referred to mediation by a judge (known as a sheriff) in the course of a small claim. The study addresses a notable gap in the literature on mediation: the modest attention paid to parties’ perspectives on substantive justice (see Chapter 1.C and 3.C. below). Its aim was to provide a richer understanding of the thinking of mediation participants charged by the justice system with devising an outcome to their disputes, in particular their evaluations of the fairness and justice of that outcome.
It finds that those without legal training can nonetheless apply justice principles in resolving their disputes; this can be described as “justice outside the law.” They were able to account for their decisions in terms recognisable to those operating the justice system: the encounter (replicating the day in court), the chance to tell their story, compensation, punishment of bad behaviour, closure and payment. However, their lack of formal legal knowledge can lead to injustice and the study highlights the key role of activist mediators in providing legal information when required.
Despite having forged the terms of their settlements, most participants were ambivalent when asked “Did you get justice?” The study notes several reasons. First, they are decision makers who are also decision recipients, meaning the other party, their legal opponent, has a say in the outcome. Secondly, they want to do, and be seen to do, justice. Thirdly, they also want to receive justice (and not injustice), yet often have to compromise and settle for “good enough” (see Chapters 5 and 6, below). And finally they have little interest in applying, still less in creating, legal norms. I conclude that mediation can deliver justice but not law