Is JDR Fair? Is it Just?

If we see that someone was robbed or killed without the perpetrator punished or the victim compensated, we say, “this is unjust.” And yet, when we are asked to define or explain the essence of fairness or justice, we find it hard to answer. We are unsure whether notions of justice are unique to individual actions or apply equally to institutions, laws, policies, or all of the above.

To answer the question of whether JDR is fair or just, we need to first grapple with its competing definitions. We will then couple a theoretical view of justice with the views of the parties in one of the actual JDR cases described in the appendix, The Motor Vehicle Accident with Pedestrian Case (The Motor Vehicle Case). Our goal is to show what justice looks like in practical terms.

The first distinction we want to make is between justice in the narrowest sense and justice in a broader sense. In the narrowest sense, it is a characterization of a decision made through the legal system—read litigation—following established rules and procedures. For people who define justice in this way, it is impossible to think of it being determined outside the legal system. For them, ADR or JDR could not possibly be a means for determining justice; they see justice as only what a court generates through a particular kind of battle. In ADR and JDR, the assumptions are different: the justice system is not a battleground where a pre-appointed judge makes a unilateral decision. JDR, specifically, opens a space for the disputing parties to generate a resolution of their differences with the assistance of a mediating judge. Whether the JDR process is fair or not, justice in the narrowest sense cannot be the product of a JDR process.

Justice in the broad sense, though, need not be linked to the judicial system. Broadly, it is the product of actions, institutions, policies and laws in a wide variety of contexts. It is not determined universally; it is generated contextually. As an illustration, “just” might be applied to a public policy decision aimed at allocating resources to different segments of the community (distributive justice). Or, it might be a way of characterizing an act of government aimed at punishing those who have harmed others (corrective justice or retributive justice) (Aristotle 1962, 2000).