Procedural Fairness vs. Substantive Fairness: Beyond Equal Treatment
In many mediation contexts, procedural fairness—ensuring that each party has equal time and balanced participation—is considered paramount. However, this focus on procedural equality often conceals deeper inequities by treating parties as though they start on equal footing. Fairness in process may assume that parties wield equal power, disregarding systemic biases that place marginalized communities at a disadvantage. For instance, procedural fairness that ensures equal speaking time may overlook power imbalances that silence certain parties due to race and culture-based disparities.
Procedural equality can mask hidden dynamics that shape outcomes, particularly when mediators rely on non-interventionist “light-touch” approaches that assume parties can self-regulate fairly. This hands-off approach may inadvertently allow dominant parties to exert influence without mediator intervention to address inherent power imbalances. A shift from procedural fairness to substantive fairness—where the quality and impact of outcomes are prioritized—enables mediators to pursue equitable solutions that genuinely address power disparities, rather than relying solely on process. A complainant sitting opposite a lawyer could be provided with plain-language summaries of any relevant legal terms, extended time for preparation, or a requirement that the opposing party provide any reasoning without resort to jargon.
Interest-Based Mediation: When Compromise Dilutes Racial Justice
Interest-based mediation encourages parties to identify shared interests instead of asserting rigid rights, generally promoting a path to collaborative solutions. However, in disputes involving discrimination or structural inequity, rights-based approaches may be more suitable. Interest-based models can water down fundamental issues by treating them as negotiable. Framing needs like dignity, safety, or respect as flexible interests suggests they can be compromised, even when they represent essential entitlements that should not be open to negotiation.
To better serve marginalized parties, mediators could apply a rights-based model in these contexts, prioritizing justice and accountability over compromise. Adopting situational flexibility, where mediators shift between interest-based and rights-based approaches depending on the nature of the dispute, would support equitable outcomes that uphold fundamental rights for all involved.
Reality Testing: Pressuring Marginalized Parties Toward the Status Quo
Reality testing, which prompts parties to evaluate the feasibility of their demands, often steers them toward practical “realistic” solutions. However, when applied to racialized disputes, this practice can pressure marginalized parties into accepting “realistic” outcomes that align with the status quo, discouraging them from challenging systemic biases. By asking marginalized parties to make concessions in line with existing norms, reality testing may inadvertently prioritize practicality over justice, favoring solutions that reflect institutional norms (and existing inequality) rather than addressing inequities.
An approach to reality testing that includes a structural analysis of racial inequity would empower marginalized parties to pursue outcomes that challenge the status quo rather than reinforce it. By allowing space for substantive justice, this approach enables parties to achieve results that reflect both fairness and empowerment.
Redefining Success in Mediation: Beyond Agreement
Mediation traditionally measures success by whether an agreement is reached. Yet in racialized disputes and others with power imbalances, defining success as agreement alone can pressure marginalized parties into accepting terms that serve dominant interests more than their own. This outcome-centered approach can mask inequities within the agreement itself, sidelining substantive justice. By focusing only on the existence of an agreement, rather than its quality or equity, mediation may reinforce imbalances instead of resolving them.
For example, instead of mediation concluding in an agreement to create a diversity task force with no commitments or substantive metrics to implement change, success in a case of discriminatory hiring practices might involve enforceable commitments to equitable hiring practices and reparative measures for any complainant alleging the harm.
To promote equitable resolutions, mediators should define success by the extent to which the outcome addresses the needs of marginalized parties. This shift in success metrics would encourage mediators to assess agreements based on substantive fairness, ensuring that outcomes do not merely satisfy procedural benchmarks but genuinely promote equity.
Moving Forward: Integrating CRT into Mediation Practice
Echoing recent calls within the field, mediators must actively engage with the realities of structural inequities to ensure a transformation in how neutrality, procedural equality, and mediator roles are understood. For mediation to be truly effective and equitable, it must evolve to address systemic inequalities more directly. Embracing the insights described in literature on Critical Race Theory, intersectionality, and implicit bias allows mediators to foster environments that not only facilitate dialogue but actively empower marginalized parties to address the roots of their grievances. Integrating this knowledge into mediation does not require abandoning foundational mediation principles but refining them to better serve diverse parties. By addressing these blind spots, ADR professionals can transform mediation into a genuinely empowering process, creating a “justice- centered” practice that acknowledges and addresses the complex social realities faced by marginalized communities.
Achieving this shift is not a one-time adjustment; it’s an ongoing commitment to learning, reflection, and practice. There is no single “correct” path to achieving equity in mediation; each practitioner’s journey will be unique. What matters most is the commitment to doing the work—continuously seeking knowledge, listening deeply to marginalized voices, and approaching every conflict with humility and a dedication to equity.