Justice, Fairness, and Mediation

In a previous article, I referred to a German study examining whether mediation produces durable, satisfactory outcomes. The findings are notable: while 85% of cases resulted in settlement and 75% of agreements were complied with, only 58.8% of parties reported immediate post-process satisfaction, and 52.7% considered the outcome fair.

The findings raise a broader question: what do parties actually mean when they describe an outcome as fair, satisfactory, or just? What were they expecting when they entered the process and do those expectations align with what dispute resolution can realistically deliver?

Justice and fairness: what parties expect

In dispute resolution, parties often refer to “fairness”, “justice”, or “what they are entitled to”. These concepts are frequently used interchangeably, yet they reflect analytically distinct layers of expectation.

Fairness refers to a subjective sense of justice shaped by the history of the dispute, perceived wrongs, accumulated imbalance, and a need for recognition.

Accordingly, perceptions of fairness vary significantly. For some, it implies public accountability; for others, financial redress or assurance that the underlying conduct will not recur. Others seek an apology, recognition of their position, or simply the opportunity to be heard by the opposing party or a neutral forum.

Disputes are also frequently driven by principle. A party may proceed despite full awareness of procedural risk, not for economic reasons, but to assert its own position.

Legal reality refers to what is legally enforceable in practice. A claim requires not only a legal basis but also adequate substantiation and, where necessary, evidentiary support. Legal assessment is therefore distinct from the parties’ subjective evaluation. This can lead to the often uncomfortable conclusion that proceedings should not be initiated, even where a party feels substantively justified. Not everything perceived as fair is legally enforceable. Not everything legally enforceable is provable. And even where both conditions are met, a judgment does not necessarily capture what a party experiences as fair.

Can litigation or mediation meet these expectations?

It is therefore useful to take a clear and honest view of one’s expectations, ideally supported by legal advice, in order to understand whether they are realistically attainable. The key questions are whether one’s legal understanding and sense of justice are actually enforceable, and whether the chosen dispute resolution mechanism is suited to the outcome one is seeking.

Example: A father has promised that his elder son A would inherit the house. After his death, however, a will is found naming the younger brother B as the beneficiary. A feels betrayed by his father and also disappointed in his brother. B maintains that he was unaware of the father’s decision, feels unfairly accused, and is himself hurt. 

For A, fairness would require that the father’s promise be legally enforceable. This is not possible. A court can only examine the validity of the will and, depending on the outcome, dismiss the claim. The underlying sense of disappointment remains untouched. A would also want an apology from his brother and ultimately from his father. This form of recognition lies outside the legal framework. It can, at least in part, be addressed in mediation. Even so, when measured against A’s expectations, it becomes clear that both mechanisms have structural limitations and cannot fully meet the underlying expectations of justice or fairness. Both are therefore functionally constrained and address different dimensions of conflict.

Procedural justice as a driver of satisfaction

Even where neither litigation nor mediation can fully meet all expectations, the perceived fairness of the process itself should not be underestimated. This is not only a question of whether procedural rules are formally observed, such as mediator neutrality and independence, confidentiality, and privacy in mediation (see in more detail here), but also how the process is experienced by the parties.

This subjective dimension has been studied extensively in social science under the concept of procedural justice. Research identifies several core factors that shape perceptions of fairness: whether parties feel able to present their case effectively, whether the decision-maker is perceived as neutral, whether they can place trust in that authority, and whether they are treated with respect.

Procedural justice research suggests that these factors significantly influence acceptance of outcomes or decisions, even where the result does not fully align with a party’s expectations.

The study cited at the beginning of this article similarly indicates that process quality has a direct impact on long-term satisfaction. Parties were more satisfied over time when they were able to express their perspectives effectively in mediation, clarify relationships, articulate their individual understanding of the conflict, feel understood by both the mediator and the opposing party, and perceive that their contribution to the resolution was acknowledged.

Conclusion

When parties speak of justice or fairness, they rarely refer to a single, clearly defined concept. More often, legal entitlement, subjective evaluation, and expectations about the dispute resolution process are intertwined. The choice of mechanism therefore determines which of these dimensions is actually addressed. Litigation provides a binding determination of legal rights and obligations. Mediation creates space for dimensions of conflict that cannot be captured within a formal claim.

The earlier this distinction is made explicit, the more likely parties are to find themselves in a process that addresses what is actually at stake. Conversely, unclear expectations about the process often result in formally correct outcomes still being experienced as unsatisfactory, because the underlying dimension of the conflict remains unaddressed.

Whether litigation or mediation is the appropriate path depends not only on procedural risk and strategic considerations, but also on the type of justice that is being sought.