Last year, The Economist published an article about fairness in its business section entitled “Fairness: The hidden currency of the workplace” (February 8, 2024 ). While the article discusses fairness in connection with employers, employees, and customers, the underlying issue is resolving conflicts in a “fair” manner.

One example given is a nine-minute call in January 2024 to Ms. Briany Pietsch in which she was laid off from a tech firm called Cloudflare. She had never met the two people firing her in the summary call, and they never really explained the reason for terminating her. They just did so in a very summary fashion. To anyone watching the video on social media, it simply seems “unfair” (if not a bit callous!) (Id. at 3.)

The article also cites the well-known experiment in which one person decides how to allocate money to another. Repeatedly, the other person in the experiment rejects the sum offered if they believe they are being given too little, even if neither party gets any of the cash. (Id. a 4.)

The issue of fairness comes up everywhere: in employment, it arises in hiring, promoting, firing, and recognition for a job well done. (Id. at 4.) The lack of fairness in hiring, firing, or promoting can quickly become a lawsuit framed in terms of discrimination or retaliation; it simply was not “fair” what happened to the plaintiff, so they sue.

Obviously, at the heart of all litigation is the issue of “fairness”: what happened to the plaintiff was simply not fair or right. So, they sue to right the wrong and obtain a “fair” result.

In mediation, the question always arises whether the mediator should be concerned with substantive fairness or only procedural fairness. Some mediators take the view that as long as the mediation process itself is fair, in which each party is treated impartially and without favor, that is all that matters. Other mediators, though, believe that any resolution reached should also be substantively fair so that the settlement agreement is not significantly skewed in favor of one party to the severe disadvantage of the other party. Indeed, some state codes, including Alabama, Arkansas, Georgia, and North Carolina, provide that a mediator should, if not, shall withdraw when faced with a substantively unfair settlement. (Waldman, Ellen, ed., Mediation Ethics: Cases and Commentaries (Jossey-Bass, San Francisco 2011) at p. 118-9, and p. 391- fns 17-20 )

Fairness is a concept that is fundamental to everything we do and every choice and decision we make. It is a guiding principle that dwells mostly in our subconscious but comes to the fore when we hear ourselves say, “But it is not fair! “

… Just something to think about.

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