The Potential of Procedural Justice in Mediation: A Study into Mediators Understandings

Abstract

Therapeutic jurisprudence, mediation and procedural justice are closely linked non-adversarial perspectives of law. Therapeutic jurisprudence aims to use the law to enhance individuals' wellbeing. Mediation provides benefits through its focus on the empowerment of parties. Procedural justice explains why disputants who experience validation and respect in a decision-making process are more likely to accept the outcome of a process even if they do not agree with the result. As a key platform of therapeutic jurisprudence, the benefits of procedural justice are accepted in the United States. However the Australian legal system is yet to recognise the potential of procedural justice to assist courts to provide court users with an improved experience of the justice system. Procedural justice can occur in mediation but many mediators do not understand the potential of this kind of experience for parties. In a qualitative study exploring the practices of mediators conducted at the Victorian Civil and Administrative Tribunal data analysis showed that mediators did not have a strong grasp of the concept of procedural justice. They lacked an understanding of the issues involved with procedural justice but did demonstrate intuitive insights about the needs of parties to be heard and validated in the decision-making process.