Mediation is not only an alternative to legal procedures but moreover it is the expected  procedure for family and spousal matters. Aristotle, already in the 300s BC, pointed out that family relationships are not strictly legal because their members are not equal to each other. The law applies suitably when applied among equals.[1]

The son is not equal to his father. He will always look “up” to him, no matter how poor the relationship can be.

When the law is applied among parents and children, still there may ensue so much unfairness. This is because the law refers mainly to assets and interests (and the order among these),[2] whereas family involves also intangible values like trust, understanding, second chances (or even seventy-seven chances).

This is the subject-matter of mediation: fairness. But is fairness a “professional” endeavor or just a bundle of concessions based on pity or exhaustion? Or, at best, a procedure of good-faith with no certainty in the outcome.

The good news is that fairness can be measured and ascertained objectively. It is not  a value that is achieved by giving-in or losing-up what is right. Unlike the law, however, fairness is ascertainable and not certain. Typically, each and every case operates differently, and what is acceptable in one case may not apply at all in the next one.

This is the task of the mediator: to find fairness. An arduous task, a professional one.

 

Richard Bethencourt

[1] Aistotle, Nichomachean Ethics, Justice.

[2] Pedro-Juan Viladrich, Introduction to Javier Escrivá-Ivars, Matrimonio y Mediación (Rialp, 2001).