Perception of fairness is key in mediation

Almost 20,000 employment cases were filed with the Department of Fair Employment and Housing in 2013, with more than 15 types of charges, including retaliation, harassment and discrimination based on race, gender, age, physical and mental disability. Employment cases can sound in contract or tort, and they can involve an entry-level clerk or a former CEO, a large global company or a mom-and-pop shop.

Despite this range, employment cases often have commonalities. For many employees, the conflict transcends a workplace dispute and goes to core issues of self-esteem and identity. Employees who are terminated or otherwise suffer adverse employment action are often devastated, not only because of the loss of a livelihood, but also because of feelings of betrayal, humiliation and embarrassment. The employee is hurt and angry, seeks justice and wants to right the wrong.

The employer, too, feels outraged. The claims are viewed as untrue, and the employee is viewed as greedy. The employer is concerned about reputation and a cascade of claims from other disgruntled employees. The laws are perceived as one-sided and unfair, requiring employers to pay their own attorney fees, while the employee gets a "free ride" through a contingent fee agreement. If this weren't bad enough, the employer is then saddled with paying the employee's attorney fees if the case is lost, though the reverse is almost never the case.

Addressing these powerful emotions during the course of negotiating the resolution of an employment case is a challenge. Each side seeks "fairness," and the inherent subjectivity of distributive fairness perceptions is amplified by the depth of emotion felt by both sides.

However, there is another important variable that can have a profound effect on parties' conclusions that the substantive outcome is fair, or at least acceptable. That variable is procedural fairness.

Procedural fairness focuses on the process used to arrive at an outcome. As the California courts learned through the 2005 landmark public trust and confidence assessment, "Trust and Confidence in the California Courts," perceptions of procedural fairness are the strongest predictor of whether members of the public approve of or have confidence in California's courts.

Research also demonstrates that when people believe that a decision-making process is fair, they are more likely to believe that the outcome produced by that process is fair, even if it is not the party's desired outcome. Of course, negotiation and mediation are not decision-making processes. Still, if the four components of procedural fairness are met, there is evidence to suggest that there is a greater likelihood that the mediation will end with a successful resolution. See Nancy A. Welch, "Perceptions of Fairness in Negotiation," 87 Marquette Law Review 753, 764 (2004).

The first component of procedural fairness is voice, a meaningful opportunity for parties to tell their story. This also means that the mediator sincerely works to "get" that party's point of view, whether it concerns facts or feelings, and the party ultimately feels heard and understood.

Second, the mediator must be neutral. This does not mean that the mediator cannot express views or give evaluations if that is the mediator's style. Rather, it means that if evaluations are given, they must be based on objective criteria, and explanations grounded in that objective criteria must be given.

Third, the neutral must be trustworthy. Trust and credibility come from being honest, prepared and knowledgeable; asking meaningful questions; and being able to integrate the facts, law and unique features that the case presents.

Finally, procedural fairness requires that all participants be treated with dignity and respect.

As significant as it is for the mediator to provide procedural fairness, it is also very powerful when the dynamics between the participants and opposing counsel are laced with the four components of procedural fairness (see id. at 764). Certainly, procedural fairness is not a panacea that guarantees a case will settle. However, it can have a profound effect on the participants allowing them to find that overlapping zone of agreement.

Jamie Jacobs-May is a JAMS neutral, based in Northern California. She has more than 20 years of ADR experience and joined JAMS after serving as the presiding judge of the Santa Clara County Superior Court. You can reach her at jjacobs-may@ jamsadr.com.