Hong Kong Legal Week 2021’s Hong Kong Mediation Lecture features an event with Sala Sihombing, Specialist Family Mediator and Conflict Management Consultant, on Modern Mediation: Equity’s Heir?
Whilst seeing equity and modern mediation as forms of individualised justice is not new, there are characteristics which may suggest that mediation can be equity’s heir in offering a new forum for equitable type redress and even novel remedies where none exist in equity. Ashburner’s Principles of Equity explained that equity seeks to create a ‘cathartic jurisdiction’2, meaning a jurisdiction involving the release of strong emotions through open expression leading to relief. What could be more descriptive of the mediation process? Mediators seek to facilitate the sharing of perspectives to enable parties to meet their needs and find durable solutions. So far, so equitable.
Thomas Main, referring to arbitration and mediation as ADR, has stated that the:
…freedom, elasticity and luminance of ADR bear a striking resemblance to traditional Equity, offering relaxed rules of evidence and procedure; tailored remedies; a simpler and less legalistic structure; improved access to justice…
In this presentation, I will suggest to you several ways in which modern mediation can be seen as equity’s heir. Without doubt there are significant differences, however, there are also significant echoes. And beyond that, I will explore if modern mediation can provide remedies that even equity has not considered nor has the capacity to address.
As a law student, graduating in 1992, I remember being tickled by the idea that the application of equity could be revealed by an actual Chancellor’s foot. The comparison is attributed to John Selden, a 17th century jurist, who referred to equity as a ‘roguish thing’ with one Chancellor having a long foot, the next a short foot and the third, rather worryingly, ‘an indifferent foot’4. His criticism was that equity changes based on who is administering it, whose conscience is being considered. I hasten to add that I was, even at the time, an imperfect student of equity so for the purposes of this lecture, please accept my apologies for any inequities or errors.
This responsiveness to circumstance, a hallmark of equity, which has been criticised, is celebrated in mediation. As mediators, we work to assist parties to come up with their own solutions and address their own needs. The kaleidoscopic nature of mediated agreements is the purpose of the system rather than a bug.
Let me clarify that for the remainder of the presentation I will refer to modern mediation, as mediation. However, it is a distinct and separate beast from traditional or customary mediation. Modern mediation is based on certain foundational principles springing from the social justice movement of the last century as opposed to traditional mediation’s often pronounced focus on harmony. I will also be using family mediation as a lens to consider the principles and realities of practice.
In order to assess whether mediation can function as heir to equity, I will examine the nature of mediation, and the foundations of equity. In addition, I will consider the similarities and differences to see if there are any areas of convergence. Lastly, I will explore if there are ways in which mediation could be said to be carrying on with equity’s mission of unburdening consciences.
I appreciate this title may seem like a conceptual stretch, an obvious difference between equity and mediation, is that mediation is a process which facilitates negotiation, rather than being a jurisdiction administered by judges. However, within the bricks and mortar of mediation might there be echoes of the spirit that infuses equity?