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Equality And Mediation

by Phyllis Pollack
January 2009

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

       A thought provoking article appeared in the December 29, 2008 edition of the Los Angeles Daily Journal. In “Law Doesn’t Guarantee Equal Outcomes, Only Equal Opportunity,( december-29 ) Donald J. Kochan, an associate professor of law at Chapman University School of Law, discusses the Equality Principle.

       His thesis, as the title suggests, is that equality under the law does not mean that “everyone is entitled to an equal outcome.” (Emphasis original.) (Id.) Rather, it means that everyone should have “. . . an equal chance, an equal opportunity to access privileges and immunities, and non-discriminatory treatment.” (Id.) That is, “equality, in a legal sense, means that no person or class receives privileges or punishments in any discriminatory sense.” (Id.) This Equality Principle, as Professor Kochan denominates it, stems from the Fourteenth Amendment to the U.S. Constitution which, in part, states, “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.” 

       The author admits that “a broad interpretation of the Equality Principle is unrealistic.” (Id.) That is, differential treatment does exist in the privileges and immunities granted to citizens, in the form of progressive taxation, state-recognized marriage, economic treatment and even access to justice. As the author points out, “it is a pipe dream to believe that the law will avoid the seduction to satisfy particular political interests. . . .” Consequently, not every citizen has an equality of chance and opportunity in our legal system. Contrary to what is taught in civics class, judicial equality simply does not exist. While the judiciary and the legislature are doing their best to promote such equality, they have  yet to achieve it and probably have some distance to travel before doing so.

       This brings me to mediation. The failings of the Equality Principle in our courts makes me appreciate mediation all the more. In a mediation, the Equality Principle does, indeed, exist. Each party has an equal chance and an equal opportunity to participate not only in the process but also in the outcome. During a mediation, everyone has the chance to be heard, to voice their views, opinions and objections and to help determine the best way to resolve the matter. Unlike a trial, each party’s needs and interests are, indeed, very much considered and taken into account in reaching a resolution. And, unlike a trial, the resolution (since it is fashioned by the parties, themselves), will very likely result in an equality of outcome since “fairness” is an inherent trait in all of us. That is, studies (i.e. think about those Capuchin monkeys and about the dogs) have revealed that each one of us innately seeks “fairness” in anything we do. We all want to be “fair.”

       So. . . while equality may be “unrealistic” in the courts, it certainly is not so in mediation. When given the choice between litigation/trial and mediation, go with “equality” and pick mediation.

       . . . Just something to think about!

Biography


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.



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