Where Mediation Fits
I have been doing some reading and writing about community mediation, searching for an answer to the questions: Is there a career in community mediation? If so, where do I find it? Recently, I had the opportunity to explore the revitalization of a community mediation program. The result of my research has been learning about the public's coping skills and how they compete with the goals of a community mediation program, the prominant role the courts have played in the survival of community mediation centers and a glimpse into why community mediation as currently configured does not work. The following quotation summarizes this last point quite nicely (I created paragraphs from what was orginally one long, unbroken quote):
"Disputes, as anthropologists have sensitively demonstrated, are “social processes embedded in social relations.” They express personality and culture; they are not disembodied abstractions. It is by now axiomatic among legal anthropologists that “the greater the relational distance between the parties to a dispute, the more likely is law to be used to settle the dispute.”
"Where a community definition of justice (and even honor) prevails, judicial resolution of “private” disputes according to “neutral principles” and due-process guarantees makes no sense. It contradicts the fundamental shared assumptions of participants, for whom disputes are not private, principles are not neutral, and due process is an impediment. In a tribal, village, or rural context, the threat of outside intervention usually suffices to turn disputes inward among the primal social group. Disputants mobilize mediators who are bound to them by shared personal connections and experiences.
"In modern urban society, however, the community is too fragmented to assert control over the conflict. Strangers, often with “nothing more in common than the dispute itself,” must turn to law. Courts, however, care little for the social setting of conflict. They empty a dispute of its social content: as a dispute becomes a case, “it must be translated from social language into legal language.” Where courts prevail, however, mediation collapses into little more than a preliminary stage in legal proceedings, controlled by court personnel and dependent for its success upon the threat of judicial sanctions.
"Once the fundamental attributes of social cohesion are missing, the substance of mediation has been transformed, though its form is unchanged. Then, however, its otherwise benign qualities endanger isolated individuals with minimal resources. The weaker party, denied opportunity for legal redress, will be at an even greater disadvantage as informality compounds inequality. At this point it becomes appropriate to inquire whose interests mediation serves and whether it promotes or retards the ends of justice that its proponents claim to pursue" (p. 119).
Auerbach, Jerold S. (1983). Justice without law? Resolving disputes without lawyers. New York: Oxford University Press.
"Disputes, as anthropologists have sensitively demonstrated, are “social processes embedded in social relations.” They express personality and culture; they are not disembodied abstractions. It is by now axiomatic among legal anthropologists that “the greater the relational distance between the parties to a dispute, the more likely is law to be used to settle the dispute.”
"Where a community definition of justice (and even honor) prevails, judicial resolution of “private” disputes according to “neutral principles” and due-process guarantees makes no sense. It contradicts the fundamental shared assumptions of participants, for whom disputes are not private, principles are not neutral, and due process is an impediment. In a tribal, village, or rural context, the threat of outside intervention usually suffices to turn disputes inward among the primal social group. Disputants mobilize mediators who are bound to them by shared personal connections and experiences.
"In modern urban society, however, the community is too fragmented to assert control over the conflict. Strangers, often with “nothing more in common than the dispute itself,” must turn to law. Courts, however, care little for the social setting of conflict. They empty a dispute of its social content: as a dispute becomes a case, “it must be translated from social language into legal language.” Where courts prevail, however, mediation collapses into little more than a preliminary stage in legal proceedings, controlled by court personnel and dependent for its success upon the threat of judicial sanctions.
"Once the fundamental attributes of social cohesion are missing, the substance of mediation has been transformed, though its form is unchanged. Then, however, its otherwise benign qualities endanger isolated individuals with minimal resources. The weaker party, denied opportunity for legal redress, will be at an even greater disadvantage as informality compounds inequality. At this point it becomes appropriate to inquire whose interests mediation serves and whether it promotes or retards the ends of justice that its proponents claim to pursue" (p. 119).
Auerbach, Jerold S. (1983). Justice without law? Resolving disputes without lawyers. New York: Oxford University Press.
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