Most neutrals believe fairness to be self-evident. They equate it with impartiality, equal treatment, and avoiding conflicts of interest. But while ADR fairness principles form the foundation of neutrality, they address only part of what fairness means in the context of dispute resolution: how the parties experience fairness during the process itself.
For example, I recently conducted a mediation between a nationally recognized hospital and its group purchasing organization, where more than $10 million was at stake. The matter involved senior executives accustomed to control. Posturing was strong, creating a real risk that neither side would experience the process as legitimate or fair.
Accordingly, I infused experiential fairness signals throughout the mediation. I insisted on courtesy and professionalism in the joint session and ensured each side had an equal opportunity to speak, thereby reinforcing process integrity throughout. I included small gestures such as eye contact, summarizing what they said to me, and acknowledging frustration, to signal to the parties that they are genuinely being heard and treated fairly.
By taking this approach, I watched attitudes shift. It helped to quickly establish legitimacy and trust among parties, and with it, the openness for genuine dialogue. When one party finally made a significant concession, the other reciprocated. Not out of weakness, but because the process itself had earned their trust. It shows why experiential fairness can make parties more likely to accept outcomes and view the neutral as legitimate.
The Human Side of Fairness
Experiential fairness matters in ADR because it mirrors how human beings react under stress. Long before people evaluate whether a process is technically fair, they are registering something more basic: Am I being taken seriously? Am I safe here? Can I trust what is happening and the mediator leading the proceedings?
Neuroscience helps explain why this matters. The somatic marker hypothesis suggests that emotional processes guide human behavior, particularly decision-making, meaning that how parties experience emotion in high-stakes mediations can shape how they perceive and evaluate complex choices.
When those signals register threat, dismissal, or disrespect, people become defensive and rigid. They are no longer weighing options; they are protecting themselves. By contrast, when those signals communicate safety and respect, people become more open, flexible, and able to engage in problem-solving.
Psychologist and neuroscientist Antonio Damasio explains that emotion processing directly influences rational thinking in how people decide, commit, and move forward. Emotional processing may not drive how people understand the logic of an agreement, but it drives whether they struggle to accept it or act on it.
This dynamic is visible in mediation rooms every day. Parties who feel ignored or rushed often cling to positions that no longer make practical sense. Parties who feel listened to, even when they disagree, become more flexible. They are more willing to explore options, consider tradeoffs, and ultimately accept outcomes they would have rejected earlier.
Experiential fairness is what creates that shift. It lowers defenses enough for procedural fairness to actually work. Without it, even the most carefully structured process can feel cold or coercive. With it, parties can engage, negotiate, and reach a resolution in ways that feel legitimate and workable.
I recently conducted a mediation involving the breakup of a physician practice. Emotions ran high, with parties showing anger, disappointment, and a sense of betrayal mixed with financial stakes. It was clear I needed to establish and reinforce the parties’ perception of fairness throughout the proceeding.
Accordingly, I allowed each side to vent privately, maintaining eye contact and active listening, while gently steering the discussion back to the goal of closure. During caucuses, I reframed inflammatory remarks and took time to acknowledge the frustration and hurt that often surface beneath professional composure.
I told the parties that my goal was to help them reach an agreement that worked for both sides. I reminded them that good settlements always involve give and take. I cautioned that they might leave the mediation slightly disappointed, because no settlement delivers everything either side wants.
Most importantly, I equally emphasized how settling this dispute would allow parties to move on, put the matter behind them, and return to their work, which would deliver more benefits to each party that would outweigh any lingering frustration.
From Neutrality to Legitimacy
Procedural and experiential fairness are not interchangeable, and the absence of either can undermine the process in different ways. Effective mediation requires both a process that is ethically sound and evenhanded and an experience in which parties feel respected, listened to, and taken seriously. It is this balance that creates legitimacy.
This explains why one of the strongest predictors of whether parties adhere to mediated agreements is the experiential fairness they perceive during the process. Research by Hollander-Blumoff and Tyler (“Procedural Justice and the Rule of Law: Fostering Legitimacy in Alternative Dispute Resolution” ) shows that people are more likely to view decisions as legitimate when they perceive the process that produced them as fair during ADR. When people view a process and its outcomes as legitimate, they are more likely to accept and comply with the result, even if it is unfavorable.
I’ve seen this principle confirmed repeatedly. Once parties sense that the process itself is fair and that I am genuinely invested in helping them be heard, resistance begins to fade, even before numbers are discussed. According to research by Hollander-Blumoff & Tyler, parties assess fairness through a set of deeply human questions:
- Did I have a real opportunity to tell my story?
- Was the neutral genuinely impartial?
- Was the process transparent and consistent?
- Was I treated with respect and listened to?
When the answer to these questions is yes, parties are far more likely to accept and comply with the outcome, even when it is disappointing. As Hollander-Blumoff and Tyler observed, an ideal mediation allows each participant “an extensive opportunity for voice” and fosters “courtesy and respect among the parties and the mediator.”
Tom Tyler deepens this concept of legitimacy: “the internal psychological property of a process that leads those connected to it to believe that it is appropriate, proper, and just.” When participants perceive a process as legitimate, they cooperate voluntarily, defer to its outcomes, and view the neutral as a trustworthy authority. Power alone can compel compliance, but legitimacy fosters acceptance.
To create legitimacy, I begin by clearly explaining the ground rules, the sequence of sessions, and what parties can expect from me. From the initial conference call onward, I explain to counsel exactly how I will conduct the mediation and what I expect from them, including civility and the right of each side to speak uninterrupted. This predictability and transparency establish trust in both the process and the neutral.
In the case of the national hospital noted above, the parties achieved a settlement. Procedurally, the mediation was fair: no conflicts, equal speaking time, transparent process. But its success rested on factors like empathy and trust, which turned compliance into legitimacy such that both parties felt fairly treated and were more open to give and take.
Though both sides left somewhat dissatisfied, they accepted the result because it felt evenhanded and credible. They viewed the outcome as legitimate precisely because the process was perceived as fair. Or, as one executive told me afterward, “We didn’t get everything we wanted, but we knew we’d been treated fairly.”