Justice and Mediation: Aristotele's concepts of mediation and its relevance, both past and prese

For Aristotle, mediation was an essential tool for a judge as it was he who would establish equality.

Mediation which is derived from the Latin "mediare” which means "intervene", in the sense of intervening peacefully and impartially during conflict resolution, has existed since the inception of the earliest human societies.

Mediation has flourished and has been shown to be as valuable and highly satisfactory a means for conflict resolution as it was in Aristotle's era. Mediation was practiced in biblical disputes ("Solomon’s Justice"), as well as in Ancient Greece and Rome before later spreading to the Islamic cultures of the Near and Middle East and to India, China and Japan.

In ancient Greece, Aristotle taught that justice was "the main foundation of the order of the world" and that " All virtues are subject to justice ". In the course of writing Book V of the Nicomachean Ethics, he made a study of corrective justice, which as he saw it "would be the intermediary between the loss and the gain". Essentially, for Aristotle corrective justice, was mediation. His notion thereof was not unlike the concept now very effectively employed in the UK and other legal systems as an alternative method to resolve conflicts (Alternative Dispute Resolution or ADR).

Aristotle's notion of corrective justice envisaged the intervention of a third person responsible for deciding conflicts in interpersonal relationships e.g. a possible breach of an agreement or contract. Essentially, this person, the judge(dikastés), is the mediator of the whole dispute resolution process. He has the responsibility for monitoring and implementing the legal process for the benefit of society as a whole.

According to Aristotle, the judge is required to try to reach a state of "absolute equality" or parity, between disputing parties effectively endeavouring to ensure that they are put into the same positions that they had been before the inequality i.e. the dispute arose.

As mediator of the dispute resolution process, Aristotle's judge was effectively in charge of a corrective justice process. This was based on the assumption that, if disputing parties were able to reach middle ground, they got what was fair. The judge was the personification of Justice, because "going to the judge is to go to justice ...". In so doing he would maintain complete independence and in some Greek cities was called a "mediator".

Accordingly, people saw the judge as an intermediary, who was being fair to both sides and, ensuring equality, would arrive at a just decision.

This model of alternative means of dispute resolution came to the fore in western jurisdictions in the second half of the 20th century, notably in the United States, where it has been widely used to try and reduce the large number of cases pending in the courts. Following its introduction it has become widely used in America and also in Europe and Asia and according to Wikipedia, the associated benefits are "agility in conflict resolution, confidentiality and the satisfaction of parties who chose a mediator."

Today mediation is understood and practiced throughout the world as a form of conflict resolution in which the mediator is not a judge (or not acting as such) but instead tries to help parties in conflict by finding a consensual "custom made" solution, (during a private process) in which all of the conflicting interests are identified. With emphasis on the parties taking responsibility during the process, the aim is to try and achieve a consensual outcome with no ultimate winners or losers effectively a "win-win".

One example of successful modern day mediation that embodies the spirit of Aristotle is the Portuguese Court in which I work. In 2002 I was appointed a civil mediator to the Portuguese Justices of the Peace. In this jurisdiction mediation is offered to citizens to help them resolve their conflicts without intervention from any public authority, that is, unless they request it.

The Portuguese mediation system works very effectively and enjoys a high success rate with resultant savings of time and of public and private money. In my view it successfully embodies the "parity" and "middle ground" principles advocated by Aristotle. Also and very importantly, this Portuguese system is just and fair.

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