People perceive fairness differently.
I like to ask at the beginning of a mediation what people would like to get out of the mediation session. Many answer that they would like a fair settlement. I am always interested in this response. What does it really mean?
I have observed that fairness is perceived differently by different people.
Attorneys, who often drive the negotiation, more often than not base their perceptions of fairness on what they have learned about the law, what the cases or statutes say should lead to a fair outcome.
This is not surprising for one with a legal background, but that’s not always they way others perceive fairness.
I often mediate “partition” lawsuits. They are disputes between co-owners on how to divide up the net value of real property that one or more no longer wants to own with the other or others. In these cases, I see “fairness” expressed differently, often by cultural groups of which I am not a part. (I risk making generalizations here, and that is not my intent, and so apologize in advance, just in case. The following are only examples of actual mediations among families of different backgrounds.)
In one partition case, a large Southeast Asian family lived together, maybe 12 or 13 people altogether. They all believed they owned the home although only one person was on title. One of the residents wanted to be apportioned a greater amount of the net value of the property after the contemplated sale, because of her contributions to the family: she would leave work early each day to come home and make dinner for all of the rest of the family. Consequently, her view of fairness related to the relative value of what people contributed to the family not necessarily to the property.
In another partition case where the co-owners shared an Hispanic or Latino background, fairness was measured among them by which family member needed the money the most from the property.
In yet another family from yet another cultural group in Los Angeles, the question of who would buy out whom (and therefore continue to own the property) was answered by which person was more responsible than, and generous to, other family members, i.e., who was still willing to house and take care of an elder in the family.
Ultimately, as I say in mediation, I believe that fairness is defined by the parties themselves: it is whatever they agree is fair, whatever ultimately works for them.
Consequently, these examples help show disputants and even lawyers that the outcome may be fair even if not exactly what the law otherwise would provide, and that mediation is a tool to give value for the individuals’ differing views of fairness.