All's Fair?: The Winter Olympics & Mediation

By Dr Mike Talbot

I have to admit that I wasn’t exactly glued to the Winter Olympics (or The Winter Olympic Games, to use its proper title), but one or two things did catch my eye. The beautiful setting, especially when floodlit at night-time; some great achievements and comebacks by supposed underdogs, weird stories involving hyaluronic acid (look it up), and of course, those allegations of cheating.

The Canadian curlers were accused of breaking the rules: using an extra touch after releasing the stone. If true, was this unfair? What do we mean by ‘fair’, and what especially do mediators mean when they talk about fairness.

In sport, there are rules. Everybody is expected to abide by them and are penalties for teams or individuals who fail to do so. A game, event, or competition of any sort is said to be ‘fair’ when everyone follows the rules, and no-one gains an advantage by bending or breaking them.

Mediation isn’t a competition of course, but everybody is still expected to abide by the (usually very simple) rules: no recording, nothing can be used against the other party later, participating in good faith, etc. And provided everyone follows the rules and the mediator enforces them equally, we could say that a mediation has been conducted fairly.

There’s another consideration, of course, in relation to the agreements that are reached in mediation. And people sometimes ask one another or the mediator whether they think the final agreement is ‘fair’. As a mediator, I can’t answer that question. I can tell you that, yes, the process was conducted fairly, in that everyone was treated impartially and equitably, without bias or favouritism. I can tell you that, if anyone began to break the agreed rules, they were brought back into line under threat that their participation in the process would be ended. And I can tell you that parties can agree whatever they want to, so long as it doesn’t put anyone at risk or break any laws. 

In nearly 30 years of mediating, I have seen people reach some fairly surprising agreements: agreements that I myself would probably not have signed up to. I have also seen what a casual observer might consider to be one-sided or apparently asymmetric agreements: where A will concede on nearly every contentious point, and B will seem to concede very little. But can I say that such agreements are unfair? No.

Mediation participants rarely reveal the full story. There might be more going on with a dispute that meets the eye, and the parties don’t always reveal the whole context or history that has led them to their current predicament. As a mediator I simply cannot know whether someone is conceding more than they ought, or that someone else’s reluctance to concede is justified or understandable. That is entirely up to them.

So, whether in mediation or in curling, provided everyone participates willingly in the knowledge of what the rules are, then they must expect that they will be required to abide by those rules. And the fairness comes when all participants are equally held to account if they either break or try to break those rules.

And who knows? If the Canadians can’t sort it out with World Curling and the IOC, perhaps we here are EU Mediation can expect a referral soon?