Open Forum

I. INTRODUCTION

Fairness is considered a fundamental principle of mediation. As one author noted, “Fairness is a predominant concern in the mediation community. Few commentators would disagree that it is the normative standard governing mediation. Determining what constitutes fairness, however, is a difficult question.”1

The reader of mediation literature and codes of conduct for mediators may be overwhelmed by the numerous aspects of fairness referred to and may wonder what these aspects of fairness have in common and what mediation academics and the code drafters have intended by the use of fairness terminology. Additionally, in the absence of a defined meaning of fairness, it is difficult to evaluate the strength of fairness-based arguments that commentators make. If, for example, a commentator argues that a particular action of the mediator is unfair, how can we evaluate his claim without first understanding the meaning of fairness? How can we determine whether the process of mediation is fair—or whether a mediation outcome is unfair—without a good understanding of the meaning of fairness?