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Mediate.com

What Does Fairness Have to do with It?

by Phyllis Pollack
May 2012

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

In my years as a mediator, it has struck me that the smaller the dispute, the harder it is to settle. And, I have always wondered why. Well, my friend and colleague, Maria Simpson, Ph.D., in her most recent Two Minute Training, explained the “why” quite succinctly: it is all about “justice” and “fairness”. She was mediating a “straightforward” collection case in which one party was suing two others for payment for work performed. The defendant though questioned the quality of the work and refused to pay.

While everyone at the mediation agreed the case should settle as it was such a “small” case, making it too expensive to take to trial, Defendant, at the same time, refused to pay.

Why? Principle! Because, defendant wanted justice and fairness; why should he pay for a penny for work that was not performed? “It isn’t fair”. As Dr. Simpson notes:

The point here is that very often those of us who aren’t really in the middle of the fight have no idea what drives people to take the stands they take, to offer $500 but not $550 or even $525. We don’t understand how important the principle is, or maybe even what the principle is. We simply see the recalcitrance as stubbornness but don’t understand what it really means. (Emphasis original).

It is all about “fairness”. But there are different types of “fairness”. A recent blog on the Program on Negotiation at Harvard Law School notes that researchers have identified three types of “fairness”:

Researchers have identified three fairness norms that people frequently invoke: equality (… a 50-50 split of profits; equity (a split in proportion to input…); and need ( a split that favors…[the one most in need]).

Psychologist David Messick has found that people commonly choose among these fairness norms based on their self-serving desire for more. That is, our greed determines how we define fairness in a given situation.

Similarly, Nina Meierding, MS, JD, in a recent presentation at the American Bar Association’s Section on Dispute Resolution 14th Annual Spring Conference, categorized “fairness” as either based on legal theory (what do the statutes, cases, legal precedent or rules state as “fair”?); equity theory (“based on the level of investment and contribution of each person”); needs based or culturally based theory (focuses on the greater good of the collective so that the group is more important than the individual; the proceeds are divided equally among all without regard to contribution, or are divided based on gender or status. Cultural values determine “fairness”); or faith based theory (“What would God say is fair?”)

As my colleague Dr. Simpson notes, to resolve a dispute, the mediator or the other person to the dispute must view or at least understand “fairness” through the eyes of the other party or the parties:

So whether you are wondering why someone is being so dramatic or stubborn over something that seems so small, try to understand why it is so much larger to that person than it is to you. You may have to struggle to get to the reason, and you may never understand it, but remember that there is a reason, and it is important, and whether you understand doesn’t matter, but you really will have to respect it.

Walk in the other person’s shoes. Trade places and see what it feels like to be him or her. Live with that person’s experience. Understand that someone may not be able to help you with something for many reasons, and even then you will probably never realize on your own that it is because a family member was murdered.

Don’t ever judge the case or the amount or the issue as small until the issue is yours and you have the right to make that judgment. Otherwise, be patient and understanding even when you do not feel either. These are signs of respect for other people’s right to feel injustice and demand fairness. (Emphasis original).

Once you are able to view if not understand “fairness” and/or “justice” from their point of view, you will grasp why such a “small” thing seems SO important to them. With this “ah-hah” moment, you will be, hopefully, able to reach a resolution.

…. 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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