Delivering judgment in the House of Lords in the case of White v White (subsequently a leading legal precedent in this jurisdiction) Lord Nicholls of Birkenhead famously opined: "Features which are important when assessing fairness differ in each case. And, sometimes, different minds can reach different conclusions on what fairness requires. Then fairness, like beauty, lies in the eye of the beholder." His Lordship's comment in this landmark divorce appeal is interesting in the context of this paper, which is written from the perspective of alternative dispute resolution (ADR) practice, specifically that of family mediation. The authors set out to provide a very brief overview of certain relevant case law, considerations of ideologies of law and ADR, and some of the concerns around mediation. Whether what constitutes fairness and justice is influenced-or even deter mined-by the etymology of these terms is then considered. The paper concludes that, incorporating this and earlier academic work related to group processes, clients' perceptions of "fairness" can be addressed and maximized within the mediation process. An increased understanding of these concepts might in turn benefit mediation practitioners in the conduct of their work. Following in part the earlier lead of Birke and Fox, who alerted practitioners and legal scholars to the psychological principles most relevant to legal negotiation, this paper also offers synthesized elements which may inform negotiation, specifically mediation or ADR practice. The elements discussed are drawn from the linguistics field as well as from certain psychological perspectives and data. In this our purpose is to offer material which may assist and inform practitioners while recognizing, along with Birke and Fox, the necessarily speculative nature of some aspects of a work of this nature.
Barbara Wilson & Alastair Wilson,
Why Is Fairness ‘Grubby’? - Semantics, Etymology, and Perspectives in Dispute Resolution,
Tex. Wesleyan L. Rev.
Available at: https://doi.org/10.37419/TWLR.V13.I2.24