Ellen A. Waldman and Lola Akin Ojelabi (Thomas Jefferson School of Law and La Trobe University - School of Law) have posted Mediators and Substantive Justice: A View from Rawls' Original Position (30(3) Ohio State Journal on Dispute Resolution 391) on SSRN. Here is the abstract:
This article explores substantive justice and mediation from the philosopher John Rawls' concept of the original position. Whether mediators do or should care about substantive justice is a question that continues to bedevil the field, theorists, and practitioners alike. In some parts of the world, opinion leaders and influential trade organizations have weighed in, promulgating ethics codes that, in large part, divest mediators of concern with the substantive justice of the agreements they facilitate. While consideration of a mediator's proper relationship to justice usually revolves around Kantian concerns for disputant autonomy, little attention has been paid to the role of more modern deontologists like John Rawls. This paper argues that as mediation becomes a fixture in a world of ever-increasing inequality, Rawls' central message gains resonance. Rawls' theory of justice held that society should strive toward equality of opportunity and that, where inequality exists, societal rules should be formulated to advantage the least resourced among us. In our view, mediation's ethical codes should be structured to protect the least advantaged of mediation's participants. In an effort to bring Rawls into the dialogue on mediation ethics, this essay places the mediation participant in the original position and asks how he or she might approach issues of substantive justice in a mediation process. It surveys, briefly, a number of ethics codes drawn from different regions in the world and notes that different jurisdictions have struck different balances regarding the mediator's relationship to justice. We ask, what would a code drafted by mediation enthusiasts operating under the "veil of ignorance" look like? And, given mediation's use in dispute contexts characterized by unequal distributions of power, why doesn't Rawls' theory of justice hold more sway?
This article moves very quickly through an analysis of mediation using a version of the original position, but it does not consider the implications of Rawls's whole theory for this problem. Among the issues that might have been addressed are the following: (1) the equal liberty principle is lexically prior to the difference principle and includes rule of law requirements that might require mediators to prioritize the legal rights of the parties; (2) Rawls's theory applies to the basic structure of society and not individual interactions; (3) Rawls situates the original position in ideal theory, and in a society that satisfies the two principles of justice, the difference principle has already been satisfied by the basic structure; (4) Rawls's original position is part of a four stage sequence, and the original position does not apply to the stage at which the specifics of civil litigation systems would be addressed.
This fourth point is important and frequently neglected in legal adaptations of the original position. Here is a description of the four stage sequence from the Stanford Encyclopedia of Philosophy:
After agreeing on the two principles and a principle of just savings, the parties then proceed further through the four-stage sequence, tailoring these general principles to the particular conditions of the society of the citizens they represent. The veil of ignorance that screens out information about society's general features is gradually thinned, and the parties use the new information to decide on progressively more determinate applications of the two principles.
At the second stage the parties are given more information about the society's political culture and economic development, and take on the task of crafting a constitution that realizes the two principles. At the third stage the parties learn still more about the details of the society, and agree to specific laws and policies that realize the two principles within the constitutional framework decided at the second stage. At the final stage the parties have full information about the society, and reason as judges and administrators to apply the previously-agreed laws and policies to particular cases. When the four stages are complete the principles of justice as fairness are fully articulated for the society's political life.
A Rawlsian analysis of mediation should occur at the third stage, when the legal framework for mediation is articulated with the veil of ignorance is mostly lifted. Mediators themselves operate at the fourth stage.
There is a general lesson here for legal theorists: before applying the original position to a particular legal issue, it is almost always a good idea to think about the question whether it really applies. Of course, legal theorists are entitled to develop their own version of the original position that differs radically from Rawls's version, but then it might be wise to provide the necessary theoretical foundations for this newly developed philosophical idea.
