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Courts, not Mediators, Dispense Justice.

November 16, 2011

As a mediation begins, I often hear people say, “I demand justice” or words to that effect. Most people will hear or listen to my response, some won’t.  But I try to inform them that mediation is not a forum in which justice is dispensed, that I am not a judge, and that justice [if there is such a thing] is the province of the court.

I always add that mediation, instead, is a place where disputants can take control of the dispute between them, if they so choose, and where they can find a workable, agreeable solution that both sides can tolerate.  Compromise is key, and each side must give up something to get something from the other side.

As I inform people, I use the word “tolerate” because neither side will come out of mediation ecstatic with the outcome; on the other hand, people jointly may be satisfied with the outcome if they have truly understood one another and have worked to meet their own needs and the needs of the other side.

As stated, compromise is key. If people are unwilling to compromise in mediation, settlement most likely will not be reached.

But one must identify whether settlement was the parties’ goal in the first place.  Sometimes it’s not.

Sometimes, mediations are used simply to satisfy a contractual or statutory obligation to mediate, or to obtain information, i.e., to find out what one side or the other is demanding or willing to settle for.  Sometimes, it is simply a place for one side to educate the other, or to learn from the other, or to share their thoughts, and to decide to settle or not.

But if one side starts and ends with a demand for justice, the mediation is not the right forum. The court is.

I was reminded of this concept last night while reading.  As I have already written I am reading a biography of John Marshall, fourth Chief Justice of the United States.  Many will recall that he led the Court, and gave the Supreme Court’s opinion in the seminal Constitutional decision, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

I remembered Marbury from law school, vaguely.  Well, I remembered that it was an important Constitutional Law case.  So I re-read it today – the whole opinion, not just the excerpt in the law school casebook.  It is amazingly well reasoned.

The important part of the decision, for this discussion, is that Justice Marshall and the Court recognized that the case was brought for political reasons under the authority of an act of Congress affording jurisdiction to the Court that Marshall determined was in excess of the Court’s Constitutionally granted  jurisdiction.

In essence, Marshall announced that the Constitution trumped all other laws of the land, and that the Act of Congress granting jurisdiction was in effect unconstitutional.  (I thinks that’s really what the case stands for.)  In any event, since the Supreme Court did not have the “original jurisdiction” that would have permitted it to grant the relief requested, the court denied the relief.

So, as with those seeking “justice” in mediation, the parties in Marbury sought relief from the Supreme Court in the mistaken belief that they were in the right forum to do so.

In a statement that has been enshrined in American jurisprudence ever since, Justice Marshall wrote:

“It is emphatically the province and duty of the Judicial Department to say what the law is.”  Marbury v. Madison, id., 5 U.S. at p. 177.

I would simply add that it is not the province, ever, of a mediator to dispense “justice.”  It is for the courts or in Marshall’s words, “the Judicial Department” to do so.


From → Law, Mediation

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