The role of justice in all-issues divorce mediation

This article reflects on the characteristics of divorce mediation that influence the notions of justice and fairness. It argues that the main characteristic is that divorce mediation involves individuals who may have an intimate and personal sense of justice due to their emotional state. The strong connection between the sense of justice and the emotional state of the parties is likely to prevent the mediation process from delivering justice and fairness in the same standards and terms usually expected from a court decision. Hence, concerns arise about whether mediation can allow couples to achieve just and fair settlements. This article suggests the introduction of an early neutral evaluation, immediately after the individual Mediation Information and Assessment Meeting (hereafter MIAM), to improve the fairness of the outcome. Such early evaluation, by a third party, provides a general framework of rights, duties, and legal rules to the parties and is necessary to keep the negotiation within the spirit of the legal principles.