‘Just’ Settlements?

Abstract

This chapter considers the outcomes of FDR in normative terms – the question of whether settlements are just. There are a number of different ways of approaching this question. First, are settlements just from the perspective of the parties? This requires consideration of the norms or conceptions of a ‘fair’ outcome brought into the process by the parties, and then comparing these to the outcomes achieved. Secondly, are settlements just from the perspective of practitioners? This raises several subsidiary questions. Do mediators operate within a normative vacuum as Genn suggests above and as mediation theory claims, or do they, as previous research outlined in Chapter 2 suggests, bring their own normative commitments to bear on the mediation process? And if so, what are those normative commitments? Is there a difference between mediators and lawyers in these respects? Or between lawyer-mediators and non-lawyer mediators? To what extent does the ‘shadow of the law’ fall on each FDR process? And to what extent does each process operate within the shadow of child welfare knowledge, the ‘social work ideology’ identified by Piper (1993) and Neale and Smart (1997)? Finally, are settlements just in accordance with our own conception of justice articulated in Chapter 1? As in previous chapters, we draw comparisons between the three FDRs, as well as noting gender differences in parties’ conceptions of fairness, and differences in approaches to children’s matters and financial matters.