ABSTRACT
Court-annexed mediation creates the dilemma of negotiating justice because negotiation and justice operate on different principles. Justice is a moral demand with equality at its core: something is just, theorists say, because it would appear fair from any position, from any perspective. Negotiation assumes self-interest, trusting in the power of Smith’s invisible hand to optimize both rewards and fairness. Unsurprisingly, many people resist negotiation processes for resource allocation decisions. Tyler & Blader (2004:298) ask the question: Why have principles of distributive justice not received more attention in negotiation contexts? They offer this answer:
Because negotiations are typically viewed as a market transaction, in which the role of social factors is minimized. Markets are highly prized by economists as situations in which the forces of supply and demand operate more or less unrestricted by societal norms. As such, they are not an arena in which we might think of issues of social justice as being key factors shaping people’s judgments and behaviors. In negotiation settings, people typically believe it is acceptable to exploit dependence and power differences. Those possessing desirable or needed resources feel justified in extracting concessions from their less powerful negotiating partner. But in the real world, the general public often regards such behavior as inappropriate.
